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.