Applying the Frye Test for Scientific Reliability in New Jersey DWI Cases

The state has the burden of proving guilt in New Jersey driving while intoxicated (DWI) cases. This is a difficult burden to meet. A DWI lawyer’s job, in part, is to challenge the reliability of the methods that prosecutors may use to prove that a defendant was under the influence of alcohol or drugs. Many of the tests that police use are not as reliable as the public might think. A person can fail a field sobriety test for numerous reasons besides intoxication, for example. Breath testing devices can be highly unreliable without careful maintenance and operation. Before prosecutors can introduce evidence based on an unfamiliar scientific process or device, New Jersey courts require evidence that this process or device has the scientific community’s acceptance. This is known as the Frye standard. Several types of evidence used in New Jersey DWI cases have faced the Frye standard over the years.

What Is the Frye Standard?

The Frye standard gets its name from a 1923 decision by the D.C. Circuit Court of Appeals. It applies to methodologies, processes, or devices that courts have not encountered before. In order for evidence based on a new device or process to be admissible, the party introducing it must show that it has “general acceptance in the particular field in which it belongs.”

Many jurisdictions have abandoned Frye because it imposes such a stringent standard of proof. New Jersey courts still use it for criminal and motor vehicle offenses.

When Have New Jersey Courts Used the Frye Test in DWI Cases?

New Jersey courts have applied the Frye standard to devices or techniques used in DWI cases on several occasions.

Breathalyzer 900A

Before the Alcotest came along, police used Breathalyzer devices to test DWI suspects’ blood alcohol content (BAC). The New Jersey Supreme Court ruled in 1984 that the Smith and Wesson Breathalyzer Models 900 and 900A met the legal standards for scientific reliability and acceptance. The court did not directly cite Frye, but it applied the same overall standard based on other New Jersey court decisions. As a result, evidence obtained from these devices became broadly admissible, provided the state could show that police maintained and used them properly.

Horizontal Gaze Nystagmus Test

The horizontal gaze nystagmus (HGN) test is the most controversial of the three most common FSTs. In a 2000 decision, the Appellate Division ruled that it did not satisfy the Frye standard when offered as direct evidence of guilt. In other words, the court held that evidence that a defendant failed the HGN test was not enough, by itself, to prove intoxication. It could, however, support probable cause for an arrest.

Alcotest 7110

Levow DWI Law was involved in the New Jersey Supreme Court case that applied the Frye standard to the Alcotest 7110, which eventually replaced Breathalyzers throughout the state. The court’s 2008 decision found that the Alcotest satisfies the Frye standard, but only when specific conditions are met. In order to introduce BAC results from an Alcotest device, prosecutors must also show that police properly maintained and calibrated the device to ensure maximum accuracy of the results.

DWI attorney Evan Levow represents people who are facing alleged DWI charges in New Jersey municipal courts. He can advise you of your rights and options, help you navigate the court system, and defend you against the state’s allegations. Please contact us today online or at (877) 593-1717 to schedule a free, confidential consultation with a member of our team.