State v. Mukherjee and the Two-Minute Lockout Defense in DUI Cases

A Driving Under the Influence (DUI) charge in New Jersey is issued if a person operates a vehicle with a blood alcohol concentration (BAC) of 0.08 percent or above. BAC can be measured with a breathalyzer test to determine if a drunk driving violation is present.
Recently, The Superior Court of New Jersey issued a holding that affects the two-minute lockout defense to a DUI charge. Originally, courts held that two minutes must elapse between breathalyzer tests to remove residual alcohol from in the machine. If another test is taken too quickly, future tests may be inaccurate. This rule was called into question in State v. Mukherjee.

Details of State v. Mukherjee

Just before four a.m. at the Vince Lombardi rest area, a state trooper found Mr. Mukherjee “slumped over” the steering wheel of his vehicle while the engine was running. After knocking on the door, the defendant rolled down his window and the officer claims he noticed a strong alcohol odor emanating from the vehicle.
Mr. Mukherjee states he had a martini that reacted poorly with his hypertension medication. He contacted a friend to drive him home in his vehicle, but became ill and had to stop at the rest station. Afterward, he had the friend leave in a cab while he waited for his ex-wife to pick him up from the rest station. Both the friend and ex-wife confirm these statements.
The arresting officer attempted to administer two field sobriety tests, which Mr. Mukherjee refused. At the police station, a breathalyzer test was conducted by a certified operator. The defendant did not provide enough volume for an accurate reading, so the mouthpiece was replaced, machine recalibrated and test conducted again after one minute elapsed.
Defendant argues the first sample contaminated the second test because it was taken before the required two minute recalibration period had passed.

How the Case Affects the Two-Minute Lockout Defense in DUI Cases

The court states in its holding that it did not adopt a bright line two minute rule in previous cases. Expert witnesses for the state testified that waiting two minutes before testing a second sample was not necessary for the machine to recalibrate-the machine automatically recalibrates.
In addition, the experts noted that the machine would not display a reading for the second breath sample unless it had already recalibrated. Having considered the expert testimony, the court admitted the results of the second test.
In effect, this ruling eliminated a defense that was commonly used by those charged with DUIs. However, there are other defenses available to those charged with DUI. If you or a loved one is accused of DUI, it is important to preserve your rights by contacting an experienced drunk driving defense attorney.