Q: I read that my health history can be a defense to a DUI charge if it affected my breathalyzer test - is that true?

A: Yes most definitely your health history can effect the alcotest (breathzlyzer is no longer being used in NJ) Things such as a higher than normal temperature, diabetes, certain blood disorders, Hyperglycemia or Hypo etc. Your lawyer should review this information with you.

A: One of the reasons why you want to be talking with a DWI specialist (National College of DUI Defense, ect), is because they are well honed on the scientific defenses. The short answer is your medical mystery might be a defense. It depends on the medical issue and the facts of your case. Practically everything about the DWI case involves science. From the chemical breath test, to blood and uring tests, to the science that (allegedly) underpins the field sobriety tests.

A: Defense to refusal sometimes where person medically unable to provide breath samples

State v. Monaco

444 NJ Super 539 (App. Div. 2016)

In affirming defendant's conviction of driving under the influence and refusal to submit to a chemical breath test, the court address two points related to the refusal conviction. First, applying State v. O'Driscoll, 215 N.J. 461 (2013), the court holds that defendant failed to present evidence that her refusal was materially affected by the failure to inform her that she would be required to install an ignition interlock if convicted.

Second, the court holds that a defendant bears the burden to prove that he or she lacked the physical capacity to perform the chemical breath test. In this case, defendant maintained her asthma rendered her incapable of providing the minimum air volume. Although defendant's treating physician testified about her pulmonary function, the Law Division judge found the proofs were insufficient to establish defendant was incapable of providing the requisite air volume. See also State v Foley