Articles Posted in Alcotest

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:

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.

I 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.

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.

After 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.

State v. Chun is the biggest most important case in New Jersey DWI history, as it now sets the standards for DWI defense and prosecution throughout the state. It has also set standards across the country, since New Jersey was the first and only state, so far, to challenge the scientific reliability of the new breath testing machine in New Jersey, the Alcotest® 7110 MKIII-C.

I feel very fortunate to have been involved in State v. Chun since it began 2005, when New Jersey began to use the Alcotest® statewide. It has given me perspective and information that I would never have been able to learn from reading the case or the studies on the machine.