Alcotest Breath Testing Machine to be Retired by the State of New Jersey

NJ DWI prosecutions are about to change significantly. Due to litigation in a case that I filed in front of the New Jersey Supreme Court, State v. Chun, the state has acknowledged that the Alcotest test machine is being scrapped in New Jersey.

Five years ago, in March 2008, the New Jersey Supreme Court ordered nine software changes to the Alcotest machine in order to make it reliable for use in New Jersey. This was after three years of litigation as to the scientific reliability of the machine. However, in the five years since the Chun decision, the State has implemented none of the required software changes to the machine.

In December 2012, we discovered that the data posted online from machines statewide was incomplete and corrupted. As a result, along with co-counsel, I filed a motion to compel the State to reformat the online information, and to comply with the original Chun order. The State replied to the motion, admitting that the online information was, in fact, incomplete. The State further indicated that it did not and could not comply with the Supreme Court order from 2008. In its responsive brief, the State asks that the Supreme Court absolve it of the requirement to fix the software in the Alcotest. The State announced that the Alcotest was going to be retired by the end of 2016, and that it was seeking a new breath testing instrument by that time. Rather than implement any new software, and to avoid any further challenges to the scientific reliability of the machine, the state asked the Supreme Court to allow it to continue using the Alcotest until it found a new machine by the end of 2016.

We responded to the State’s shocking revelation that it was retiring the machine and seeking absolution from the five-year-old requirements to fix the software by asking the Supreme Court to now declare the Alcotest unsuitable for use in New Jersey, forthwith.

The term “forthwith” was used by the New Jersey Supreme Court in its order of March 2008 requiring the state to make changes to the machine software. Forthwith is defined as immediately.

Argument on the case is scheduled for September 10, 2013.

If you have a been arrested for DWI in New Jersey and would like to discuss your case with us, please call us at Levow & Associates for a free consultation.