Articles Posted in Alcotest

By TVR (Own work) [CC-BY-SA-2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia CommonsFor more than eight years, our law firm has been principally involved in challenges to the Alcotest device, which the state uses to measure blood alcohol content (BAC) in DWI cases. We represented the lead defendant in a 2008 case, State v. Chun, in which the New Jersey Supreme Court established strict guidelines for the admissibility of Alcotest results and required multiple changes to the device’s software. Unfortunately, New Jersey courts have since rolled back those protections, starting with a 2011 ruling in State v. Holland. We went back to court in the Chun case in 2013 to challenge the state’s failure to do what the Court ordered in 2008. While the court ruled that the state may continue using the Alcotest device, the state will have to find an alternative soon. The German company Draeger, which manufactures the Alcotest, will no longer offer a warranty for the device after 2016.

The state continues to use the Alcotest 7110 MKIII-C device, with the New Jersey State Police offering operator certification and re-certification training for state, county, and local law enforcement. A person whose BAC is 0.08 percent or higher is presumed to be intoxicated under state law. BAC evidence is not necessarily required to prove DWI in court, but without it, prosecutors must rely on physical observations of alleged intoxication. While witness testimony is subject to cross-examination and challenge on a wide range of issues, a defendant typically may only challenge BAC evidence based on the device’s maintenance, calibration, and proper functioning. The Alcotest device has raised many questions in these areas.

In Chun, we challenged the scientific reliability of the Alcotest device, which uses two methods to measure alcohol concentration in a breath sample. The court’s decision describes how the device captures the breath sample in a chamber, where it uses infrared energy to calculate the alcohol content based on energy absorption. The second method takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. This creates electricity, which the device measures to determine the alcohol amount. The device requires careful calibration, with a period of at least 20 minutes between calibration and use. Continue reading →

By Fabian Börner (Self-photographed) [GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or CC-BY-SA-3.0-de (http://creativecommons.org/licenses/by-sa/3.0/de/deed.en)], via Wikimedia CommonsThe New Jersey Superior Court, Appellate Division considered the appeal of a DWI defendant in State v. Lobo that challenged the admissibility of Alcotest results. The defendant argued in part that the state’s failure to provide him with complete repair and maintenance records for the device used to test his blood alcohol content (BAC) entitled him to relief on appeal. The state’s case relied on results from an Alcotest device, which has been sufficiently controversial that the state plans on retiring it. The court rejected each of the defendant’s points of error and affirmed the conviction.

The defendant was arrested on April 29, 2011 after a traffic stop. At a State Police barracks, officers administered a breath test using a Dräger Alcotest 7110 MK III-C device. The test showed a BAC of 0.13 percent, and the defendant was charged with DWI. The court ordered the state to produce repair records and other information regarding the Alcotest device. Prosecutors later informed the court that some repair records were not available, leading the court to modify its order to require production of “repair records that exist.”

Based on the information obtained about the device, the defendant moved to dismiss the case or exclude the Alcotest results on multiple grounds. The trial court denied the defendant’s motion. The defendant entered a conditional guilty plea, which allowed him to preserve the issues raised in his motion to dismiss for appeal. Continue reading →

NJ DWI prosecutions are about to change significantly. Due to litigation in a case that I filed in front of the New Jersey Supreme Court, State v. Chun, the state has acknowledged that the Alcotest test machine is being scrapped in New Jersey.

Five years ago, in March 2008, the New Jersey Supreme Court ordered nine software changes to the Alcotest machine in order to make it reliable for use in New Jersey. This was after three years of litigation as to the scientific reliability of the machine. However, in the five years since the Chun decision, the State has implemented none of the required software changes to the machine.

In December 2012, we discovered that the data posted online from machines statewide was incomplete and corrupted. As a result, along with co-counsel, I filed a motion to compel the State to reformat the online information, and to comply with the original Chun order. The State replied to the motion, admitting that the online information was, in fact, incomplete. The State further indicated that it did not and could not comply with the Supreme Court order from 2008. In its responsive brief, the State asks that the Supreme Court absolve it of the requirement to fix the software in the Alcotest. The State announced that the Alcotest was going to be retired by the end of 2016, and that it was seeking a new breath testing instrument by that time. Rather than implement any new software, and to avoid any further challenges to the scientific reliability of the machine, the state asked the Supreme Court to allow it to continue using the Alcotest until it found a new machine by the end of 2016.

We responded to the State’s shocking revelation that it was retiring the machine and seeking absolution from the five-year-old requirements to fix the software by asking the Supreme Court to now declare the Alcotest unsuitable for use in New Jersey, forthwith.

The term “forthwith” was used by the New Jersey Supreme Court in its order of March 2008 requiring the state to make changes to the machine software. Forthwith is defined as immediately.

Argument on the case is scheduled for September 10, 2013.

If you have a been arrested for DWI in New Jersey and would like to discuss your case with us, please call us at Levow & Associates for a free consultation.

The most important case in New Jersey DWI history is State v. Chun, decided in 2008, which set the standards for DWI defense and prosecution for breath testing cases statewide. Despite significant evidence to the contrary, the New Jersey Supreme Court in Chun determined that the new Draeger Alcotest 7110 MKIII-C breath testing machine was scientifically reliable.

In Chun, the reliability of the machine was based on the safeguards of the testing procedure, one of which was an apparatus known as an Ertco-Hart Digital Thermometer. This thermometer insures that the temperature of the various simulator solutions used for calibration of the Alcotest during the control and linearity testing are at the required 34.0 degrees Celsius, with a tolerance of plus or minus 0.2 degrees.

These Ertco-Hart digital thermometers were calibrated by Draeger, which also supplied a NIST (National Institute of Standards and Technology) Certificate of Traceability with each calibration. Draeger, however, decided it would no longer produce the certificates of calibration, and the Ertco-Hart digital thermometer used by the State is no longer manufactured. As a result, the required calibration had to be done with a different digital thermometer.

A digital thermometer from Control Company was chosen based on criteria set by the director of the Office of Forensic Sciences.

Because this thermometer from Control Company was different from the Ertco-Hart thermometer, and because the Alcotest was found to be scientifically reliable with the Ertco-Hart digital thermometer as one of it’s calibrating components, defendants across New Jersey began challenging the results from the Alcotest based on this change of components.

A case called State v. Holland addresses these issues, and was recently decided by the Law Division in Monmouth County on August 24, 2011. The opinion from the Law Division will be used by the Appellate Division to establish the final ruling on the use of the Control Company digital thermometer in place of the Ertco-Hart unit. The Law Division determined “that the Ertco-Hart and Control Company digital thermometers are comparable in all material respects and identical in the performance of the singular function required.” Both thermometers “accurately read and report the temperatures of the simulator solutions during the Alcotest calibration process.”

The Control Company certificate, in comparison to the Ertco-Hart certificate, does not have any “facial irregularity”, as claimed. The Law Division found that it actually provides more information than the Ertco-Hart certificate provided by Draeger. The court found nothing to prevent it from being accepted as a proper foundational document regarding calibration of the digital thermometer as required by the Supreme Court in Chun.

It is safe to say that the Law Division’s opinion ratifying the use of the Control Company digital thermometer will form the basis for the Appellate Division’s ratification of the unit, thereby allowing Control Company’s digital thermometer to be used for calibration of the Alcotest on a state-wide basis. The opinion from the Appellate Division will likely be rendered “forthwith”.

This issue is but one of many that must be addressed in the context of assessing defenses to a specific charge of DWI in New Jersey. It is critical to seek the assistance of a qualified New Jersey DWI lawyer, who can determine how best to proceed in your case. DWI charges in New Jersey can be successfully challenged.

In a New Jersey DWI case, there are many documents that the State must provide you so that you can defend your case. This is called “discovery”. The discovery includes everything from the stop of your vehicle, through the roadside testing, to the breath or blood testing, and your release from police custody.

In order for the prosecutor to get Alcotest results admitted into evidence against you, the State must establish that: (1) the machine was in working order and had been inspected according to procedure; (2) the police officer who ran the testing on the machine was certified to do so; and, (3) the test was administered according to official procedure.

A significant challenge to the machine and admission of the Alcotest results is whether the machine was in “proper working order”. There are three core foundational documents that the State must admit into evidence to establish this:

(1) the most recent Calibration Report prior to your test, including control tests, linearity tests, and the credentials of the state trooper coordinator who performed the calibration;
(2) the most recent New Standard Solution Report prior to your test; and,
(3) the Certificate of Analysis of the 0.10 Simulator Solution used in your control tests.

There are additional documents that you or your attorney will need in order to challenge the functionality or operability of the Alcotest in your case. These are referred to as twelve non-core foundational documents:

(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s credentials of the officer who performed that change;
(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));
(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests;
(11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and,
(12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

Once you have these documents, you can then determine whether additional material is needed, such as repair records for the machine, and most importantly the digital data logs from the Alcotest used in your testing.

This information is very complex and the defenses to the Alcotest are nuanced. It is important to have a qualified DWI defense attorney obtain all relevant discovery for you, and evaluate the possible defenses to your case. Often, in addition to your attorney reviewing the discovery, an expert on the machine data logs may be of assistance in providing additional defenses to the breath testing results.

If you were arrested for a New Jersey DWI, and you submitted breath samples at the police station, your breath testing was done on a Draeger Alcotest 7110 MKIII-C machine. There are many components to a DWI arrest, and it is important to understand how each part can be challenged. For example, if the machine was not calibrated properly, the breath test results can be suppressed, or thrown out.

Calibrating the machine involves running several tests on it with different alcohol “simulator” solutions. The solutions must be heated to 34 degrees Celsius, plus or minus 0.2 degrees. This temperature is supposed to simulate the temperature of human breath, however, studies have demonstrated human breath to be closer to 35 degrees. This difference in temperature can cause more than 6% error in the ultimate breath test result.

Appropriate temperatures are determined using an external NIST traceable temperature probe. NIST is the National Institute of Standards and Technology, which establishes and maintains basic international standards of measurement. The temperature probe is used to ensure the proper temperature of the solutions just before the calibration of the Alcotest.

First, the machine is programmed with a 0.10% alcohol solution. This solution “tells” the machine what a 0.10% alcohol reading is, like programming a scale with a 10 pound weight. The scale is calibrated to read the 10 pound weight as 10 pounds. If the machine doesn’t then read within a specified range at the 0.10% level, it is reprogrammed with a different solution. This is known as the Part I Control Test.

There is also linearity testing done on the machine with 0.04%, 0.08%, and 0.16% solutions. The machine is tested twice with each of these solutions, and must read within an acceptable range of each of the solutions. If it doesn’t, the machine will be placed out of service. This is known as the Part II Linearity Test.

The third part of the calibration process involves the simulator solution that will now be used for subsequent testing with the machine. This is the Solution Change Report. This solution is good for 25 subject tests or 30 days, whichever comes first.

If any one of these processes is compromised, the testing in your case should be suppressed, or dismissed.

It is therefore critical to consult with a qualified DWI defense attorney who knows the specific processes of Alcotest machine. I represented the lead defendant in the case that decided the reliability of this machine, State v. Chun. The Chun case has set the standards for DWI defense and prosecution throughout the state of New Jersey.

New Jersey DWI breath testing cases are complex, especially due to the new machine being used in New Jersey, the Draeger Alcotest 7110 MKIII-C. While this machine has been held to be reliable by the New Jersey courts, there are still significant issues to challenge regarding the machine and overall breath testing for New Jersey DWI arrested drivers. You just have to know what to look for, and what to ask for to review, to assess your challenge to the machine and establish your defenses.

Breath test results are generally admissible in evidence when the machine is shown to be in proper working order, when the breath test is shown to have been administered by a qualified operator, and the machine was used in accordance with accepted procedures.

It is the job of the defense attorney to investigate these areas. This is done through a process called “discovery”, where the defense seeks records regarding the machine, the arrest, and anything else relevant to the arrest and defense of the case from the State. This is done through a letter request to the prosecutor, copied to the police department and the Court Administrator. Our courts have said that “inquiry regarding these facts is extremely material.” Information concerning the conditions under which the tests were held, the machine operator’s competence, the particular machine’s state of repair and identification and documentation regarding the machine used for defendant’s tests are all relevant inquiries.

Of particular importance in Alcotest breath testing cases is the digital data log that is downloaded from each machine every six months. In a case called State v. Chun, which set the standards for DWI defense and prosecution of breath testing cases in New Jersey, the court acknowledged that the State should create and maintain a centralized database of information from each machine, regularly uploaded through modem. Defendants should have access to centrally collected and maintained data on their own cases, as well as to the compiled scientific data on matters involving others that has been redacted to shield the personal information related to those other individuals.

Review of this digital data is often critical to formulating a defense in an Alcotest breath testing case. The data is immense in scope, and can yield a significant amount of important information on your own breath test, as well as how the machine was operating over a period of time.

With the Supreme Court’s decision in Chun that the machine is scientifically reliable, one of the better ways to challenge the machine now is how it has operated over a period of time. If you can establish that the particular machine you were tested on is operating irregularly, that is not a challenge to the scientific reliability of the machine. It is a challenge as to the machine operability. The cause of the problem may lie with the machine and it’s inner functioning, or it may be how the machine was operated by the officer or officers over time.

In any event, it is critical to have a qualified DWI defense attorney review the facts and circumstances of your case. I represented the lead defendant in the Chun case. That was a fantastic experience that yielded an incredible amount of information that I am able to use in the defense of my clients.

alcotest.JPGI represented the lead defendant in State v. Chun, the case that has set the standards and procedures for DWI breath testing in New Jersey. So, a recent decision in a case interpreting Chun seems particularly ironic to me, since it highlights the State’s failure to adhere to the New Jersey Supreme Court’s requirements that the State change the make-up of the Alcotest®, the new breath testing machine in New Jersey.

In March 2008, the Supreme Court ruled in Chun that the State has to calibrate the Alcotest® every six months. Prior to Chun, calibration occurred every twelve months. While the Court determined that the Alcotest® is scientifically reliable, the Court left open challenges to the operability of each Alcotest®, that is, whether the Alcotest® machine that was used to test the subject was operating properly and as expected at the time of the testing. This allows for a wide array of challenges that are possible in each New Jersey DWI case by a skilled New Jersey DWI defense attorney.

This new case from the Appellate Division, State v. McConnell, says that failure to recalibrate an Alcotest® machine within the 6 month period does not cause the readings to be automatically thrown out.

This case can easily be mis-interpreted. It doesn’t mean that you cannot challenge readings where the calibration on the machine is more than 6 months old. That would be inconsistent with the ruling in Chun. The timing in McConnell is important. His arrest occurred two months after the ruling in Chun, and the State had not gotten around to recalibrating the 600+ Alcotests® in New Jersey. McConnell claimed that because his calibration was 2 months beyond that period, his readings were inadmissible.

After McConnell, more may be required to mount a successful challenge on the recalibration issue than just pointing out that the recalibration period is greater than six months, but it doesn’t foreclose the defense. Even before Chun, courts have held that failure to follow protocol and procedure makes breath testing results unreliable and inadmissible.

Two and a half years after Chun, the State has still not complied with the Court’s ruling that the software in the machine be modified.

Each case is different and each case must be evaluated on its own to determine what defenses are available to assert. McConnell highlights the fact that DWI practice is more complicated than ever, and that qualified DWI representation is more important than ever.

Because I was involved in State v. Chun, the case that has defined DWI defense and prosecution throughout the state of New Jersey, I have been fortunate to learn a great deal about the new breath testing machine in New Jersey, the Alcotest® 7110 MKIII-C. I have had the pleasure of passing on some of that knowledge to other attorneys by speaking at local and national seminars on the technical and scientific defenses related to the Alcotest®.

This video is from a New Jersey statewide presentation on Alcotest® defenses. I have given other presentations to attorneys at national speaking engagements in New Orleans, Dallas, Las Vegas, and in Wisconsin and Connecticut.

This machine, the Alcotest®, requires more knowledge and ingenuity to defend against, compared to its predecessor, the Breathalyzer® 900 and 900A. There are many more technicalities associated with the Alcotest® than the Breathalyzer®. For instance, the documentation attached to the testing process is at least three to four times greater than the paper work from the older testing.

Most significantly, the Alcotest® allows for information to be produced from its database to establish whether the machine is operating as it should be, or as it is expected to operate. State v. Chun was a three year long scientific reliability challenge to the Alcotest®. From Chun, we now have many areas to challenge — not the reliability of the machine, but — whether the machine is operating properly. The electronic information that can be mined from the machine’s database is invaluable in assessing the operability of the the Alcotest® as it relates to the particular machine used in the motorist’s testing.

Many attorneys were very nervous after Chun came out, believing that the results from the Alcotest® are indefensible. Nothing could be further from the truth. Of course, each case must be assessed on its own facts and circumstances, but the Alcotest® results can and must be challenged in every case where the defendant wants to do so. Even where the Alcotest® reports a breath test reading over 0.08%, if there are errors that can be established in the machine’s process or in the overall testing protocol, the breath testing results should be suppressed or excluded from evidence.

It is therefore critical to have qualified a New Jersey DWI lawyer assess the defenses available relative to the Alcotest® issues, as well as the physical case that is alleged against the driver. A New Jersey DWI can be successfully defended and dismissed under the appropriate circumstances.

Maricic Law Journal.JPGAfter the landmark decision in State v. Chun, a significant part of DWI defense in New Jersey breath testing cases focuses on how the machine operated at the time of the defendant or accused’s testing. Challenging the “operability” of the machine is different than challenging the “scientific reliability” of the machine or its process. The latter challenge is now precluded by Chun. Now, the questions center on whether the machine was operating as it is expected at or around the time of the defendant’s arrest.

One of the most important assessments of how the machine is working is done through an analysis of the electronic data that is stored in the machine. This discovery or information obtained from the machine is referred to as the “data download”.

The data download is created every six months or so, when a State Police trooper does the bi-annual calibration on the machine, as required now by Chun. A copy of the information is downloaded onto two CD’s. One is taken to West Trenton and will eventually be made part of a statewide database that is supposed to be made available to the public “forthwith”, or immediately after Chun was decided in March 2008. The other disc is left in the local police department and is available for “discovery” by defendants tested on the machine.

I have been asking for and obtaining this information from courts for well over a year now, and have had great success with the information, utilizing it to have breath test readings suppressed in many cases.

Until recently, many prosecutors and courts have been reluctant to allow the information to be made available. Last year, I was successful in obtaining an order from the Appellate Division, compelling a court to provide the downloads to me. That order in State v. Reardon has been widely circulated and used as a basis to obtain downloaded information statewide.

Now, an unpublished decision from the Appellate Division has made the issue a little clearer in State v. Maricic. This case, like Reardon, says that a download must be provided as part of normal discovery. Maricic, however, only addresses the most recent download prior to that individual’s arrest.

It is critical to obtain all of the downloads available for machine in issue, including the accused’s own downloaded information. That is the only way to properly assess the operability of the machine.