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  1. #1
    hughb is offline Civilian
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    Breathalyzer vs. Alcotest

    Monday, February 19, 2007

    Draeger Alcotest 7110 found scientifically reliable in New Jersey, subject to safeguards
    A special master appointed by the New Jersey Supreme Court has found the state's new drunken driving tester, the Draeger Alcotest 7110, is scientifically reliable and can be used subject to certain safeguards.

    The master's findings in State v. Chun, No. 58,879, if adopted by the court, would allow Alcotest blood alcohol readings to be admitted in drunken driving cases without expert testimony.

    "This court finds that the Alcotest 7110, NJ 3.11 version is and has been scientifically reliable, under the clear and convincing evidence standard, when the test protocol is carefully followed by the operator and the instrument is functioning properly," wrote Michael Patrick King, a former Appellate Division judge.

    But King conditioned admission of the evidence on the presentation of certain foundational evidence.

    The operator must testify that customary procedures were followed and produce his or her credentials.

    Also, specified certificates and other documents must be provided by municipal prosecutors during discovery and, if kept in the normal course of business, can be admitted without formal proof in the judge's discretion. The documents must be placed in evidence where the defendant has no lawyer.

    King found other changes called for, including:

    lowering the minimum flow rate for women over 60 from 1.5 liters to 1.2 liters; and

    setting up a telephone or Internet connection to allow automatic uploads of all Alcotest data in the state to a central server on a daily or weekly basis, with the data kept for at least 10 years.

    King "strongly recommended" the state acquire a software program to manage the central database of Alcotest results.

    Also strongly recommended was use of the breath-temperature sensor made by the Alcotest manufacturer, Draeger International of Durango, Colo. If the state does not do so, it must adjust all breath test results downward by 6.58 percent to reduce the margin of error. But King noted there was no good reason not to use the available technology, as Alabama now does, calling breath temperature variations "a biological variable which can and should be controlled."

    King also agreed with an argument presented by defense lawyers that the tolerance standard for breath samples should be narrowed, to .005 for greater precision and accuracy.

    But he declined to declare invalid test results obtained using the current standard, which is .01 percent or 10 percent of the difference between the highest and lowest of the four readings, whichever is greater. Those results "were not improper and inadmissible, but our recent recommendation is simply a better, tighter range for precision and accuracy," he wrote.

    As for future Alcotest upgrades and modifications, the state plans to add administrative safeguards, King pointed out, saying those safeguards should include certain items such as:

    listing the temperature probe serial number and probe value on any report where relevant;

    publishing firmware revisions on the state police Web site and elsewhere; and

    continuing to restrict access to the firmware for purpose of making changes to it.

    King's findings will be considered by the Supreme Court, which took jurisdiction of the 20 consolidated DWI cases raising challenges to Alcotest after Middlesex County Superior Court Judge Jane Cantor ruled there were justiciable issues concerning its reliability.

    The report followed four months of hearings in which defense lawyers disputed the Alcotest's accuracy, with the State Bar Association and the New Jersey chapter of the Association of Criminal Defense Lawyers as amici.

    Defense attorneys disputed the Alcotest's accuracy, Draeger said the device's codes were trade secrets, and last year King threatened to take a negative inference against the Alcotest's reliability because of Draeger's nondisclosure. Draeger and the defense attorneys then agreed to the software company analysis to ensure no programming errors.

    But it remains a sore issue.

    One defense lawyer, Evan Levow, says King let the state and Draeger off too easily on that point.

    "Every state's expert agrees, you can program the computer to say whatever you want it to say. Draeger simply says 'trust us.' Yet, ironically, Judge King says, the linchpin of future reliability rests on Draeger agreeing to have the source code analyzed by an independent reviewer. I'd say it's problematic," says Levow, who heads a firm in Cherry Hill, N.J.

    And some defense attorneys are likely to ask the Supreme Court, which will decide whether to adopt King's report, to tweak the findings, according to Matthew Reisig, who heads a firm in Freehold.

    One such area is King's decision to reduce the allowable gap in readings between two consecutive breath samples. King made it proactive while defense lawyers seek retroactive application.

    The Attorney General's Office declined requests for interviews of its attorneys on the case, but issued a statement by Gregory Paw, director of the Division of Criminal Justice, addressing King's report:

    "We are pleased Judge King has concluded that the Alcotest instrument is scientifically reliable and that its test results should be admissible in drunken driving prosecutions. The comprehensive report addresses all of the issues raised by the parties. We look forward to having this matter heard and decided by the Supreme Court," Paw said.

    Deputy Attorney General Christine Hoffman was the lead attorney for the state, assisted by Deputy Attorneys General John Dell'Aquilo and Stephen Monson. Assistant Attorney General Jessica Oppenheim supervised the team.

    The state wants to use the Alcotest to replace the antiquated Breathalyzer as the standard test of blood-alcohol level. The state says the Alcotest has been thoroughly tested and has numerous safeguards against inaccurate readings.

    In the eyes of one defense attorney, who represented the amicus New Jersey State Bar Association in the case, King managed to balance the issues. The State Bar had asked King to find the Alcotest reliable with certain caveats.

    "What [King] he is doing here is establishing the rules of the game," says Jeffrey Gold, of Gold & Laine in Cherry Hill. "There are a few more conditions I would have liked than what he gave, but he's on the right track."

    Each side in the case has two weeks to submit briefs to the Supreme Court.

  2. #2
    hughb is offline Civilian
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    I bolded that part of the story because the first thing that jumped into my mind when I read it was, "so, are all the DUI convictions that used the Breathalyzer as evidence overturned now?" The state of NJ is basically saying Breathalyzer is innacurate.

  3. #3
    hughb is offline Civilian
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    Or another way of saying, "isn't accurate enough", or maybe, "less accurate that the Alcotest".

  4. #4
    gozling's Avatar
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    in my opinion there are new tests created for lots of things every day...
    if they go to using this alcotest then so be it...
    there are so many other factors to a DUI that I dont feel anything would be 'overturned'.
    when i say other factors.... i mean like the officer road side analysis and other factors the officer would witness....
    just a thought... eh but i dont know much about the DUI stuff.

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  5. #5
    Tony's Avatar
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    We've been using the Draeger Alcotest 7110 for years. No opertator input besides place, names etc, its very hard to prove it wasn't operated correctly. But we have the laws to support it, which help.



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