New Jersey Attorney General Seeks to Revise Alcotest Calibration Procedures Established in State v. Chun

Police departments throughout New Jersey use the Alcotest 7110 MKIII-c device to conduct breath tests on individuals suspected of driving while intoxicated (DWI) in order to determine a person’s blood alcohol content (BAC). Accuracy is critical for these devices, since state law imposes penalties based almost entirely on BAC.

State law creates two tiers of first-time DWI offenses based solely on BAC. A BAC of 0.08 percent or above creates a presumption of impairment. For first offenders, penalties are greater if the BAC is at least 0.10 percent. Blood testing generally provides a more accurate BAC result than breath testing, but as the Chun decision notes, it presents “obvious practical and logistical problems.” Breath testing requires neither a warrant nor a medical professional. All police departments in this state have used the Alcotest since 2008, some since 2005. The device can only provide an “estimation of BAC,” based on the passage of alcohol from the digestive system to the circulatory and then respiratory system. It uses two methods to measure alcohol concentration, which Chun describes as “infrared (IR) technology and electric chemical (EC) oxidation in a fuel cell.” The EC measurement is the more controversial of the two.

The Alcotest’s EC technology creates a catalytic reaction that oxidizes alcohol in the breath sample, creating an electrical charge that the device can measure. The accuracy of this measurement requires careful maintenance. A “simulator solution” used to calibrate the device must be maintained at a precise temperature. Chun requires the use of a thermometer that meets standards set by a federal agency, the National Institute of Standards and Technology (NIST).

Earlier this year, prosecutors filed criminal charges against a sergeant with the New Jersey State Police, Marc Dennis, who had been responsible for inspecting and calibrating Alcotest devices throughout the state. Prosecutors allege that he “failed to use a NIST-traceable digital thermometer” when testing the simulator solution, but he signed paperwork stating that he did. The allegations have cast doubt on BAC results in as many as 20,000 New Jersey DWI cases. Courts have reportedly begun receiving motions to vacate guilty pleas and other requests for relief in cases that involved Dennis, based on the allegedly fraudulent Alcotest records.

In response to the allegations against the State Police sergeant, the state’s Attorney General has asked the Supreme Court to appoint a special master to consider simply eliminating Chun’s thermometer requirement, or at least relaxing it. In other words, there is no imminent “Sunset of the Alcotest”, as the State claimed in 2013. The Attorney General said then that the State wasn’t going to comply with the Supreme Court’s order in Chun to make nine (9) software changes to make the machine “scientifically reliable” for use in New Jersey. The State said it didn’t have enough money to fix the machine, and was planning to get a new machine in 2016. The Court bought the State’s position and gave the State a pass on fixing this machine, which runs on an algorithm that changes the results of the breath testing.

I wrote to the Court last week and said:

If you have been charged with alleged DWI in a New Jersey court, DWI attorney Evan Levow can guide you through the court process and prepare a strong defense for your case. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation to discuss your case with a knowledgeable and experienced advocate.

More Blog Posts:

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016

Defendant in DWI Case Has Burden of Proving Inability to Provide Breath Sample, According to New Jersey Court, New Jersey DWI Attorney Blog, August 6, 2016

Alcotest Documentation Was Sufficient in DWI Case, New Jersey Appellate Court Rules, New Jersey DWI Attorney Blog, April 4, 2016