What Is the Current Status of the Alcotest Machine in New Jersey DWI Cases?

For more than eight years, our law firm has been principally involved in challenges to the Alcotest device, which the state uses to measure blood alcohol content (BAC) in DWI cases. We represented the lead defendant in a 2008 case, State v. Chun, in which the New Jersey Supreme Court established strict guidelines for the admissibility of Alcotest results and required multiple changes to the device’s software. Unfortunately, New Jersey courts have since rolled back those protections, starting with a 2011 ruling in State v. Holland. We went back to court in the Chun case in 2013 to challenge the state’s failure to do what the Court ordered in 2008. While the court ruled that the state may continue using the Alcotest device, the state will have to find an alternative soon. The German company Draeger, which manufactures the Alcotest, will no longer offer a warranty for the device after 2016.

The state continues to use the Alcotest 7110 MKIII-C device, with the New Jersey State Police offering operator certification and re-certification training for state, county, and local law enforcement. A person whose BAC is 0.08 percent or higher is presumed to be intoxicated under state law. BAC evidence is not necessarily required to prove DWI in court, but without it, prosecutors must rely on physical observations of alleged intoxication. While witness testimony is subject to cross-examination and challenge on a wide range of issues, a defendant typically may only challenge BAC evidence based on the device’s maintenance, calibration, and proper functioning. The Alcotest device has raised many questions in these areas.

In Chun, we challenged the scientific reliability of the Alcotest device, which uses two methods to measure alcohol concentration in a breath sample. The court’s decision describes how the device captures the breath sample in a chamber, where it uses infrared energy to calculate the alcohol content based on energy absorption. The second method takes part of the breath sample from the infrared chamber and applies voltage to oxidize the alcohol. This creates electricity, which the device measures to determine the alcohol amount. The device requires careful calibration, with a period of at least 20 minutes between calibration and use.

A court-appointed special master investigated the Alcotest device and, while finding it to be scientifically reliable, recommended standardized training and the creation of a centralized database of redacted test results. The court ultimately agreed with the finding of scientific reliability, but it ordered that the device must receive regular inspection by a certified operator for its results to be admissible. It further ordered the state to establish a statewide, centralized database, and to make specific revisions to the device’s firmware.

Part of the basis for the Chun court’s finding of scientific reliability was that Draeger provided a standardized testing procedure with specially-calibrated thermometers, which the state could use to test and calibrate the Alcotest devices. When Draeger stopped certifying the thermometer calibration, and that particular brand of thermometer was no longer available, the Superior Court, Appellate Division essentially ruled in Holland that these features were not that important and other thermometers would do.

We returned to the Supreme Court in the Chun case in 2013 because the state had failed to provide adequate data in the court ordered statewide database. The state asked the court to release it from any further obligations to revise the device’s firmware, even though it was clear that the State completely ignored the order of the highest court in New Jersey. The state also dropped the bombshell that it would phase out the Alcotest device sometime before 2016. The court ruled in the state’s favor.

If you have been arrested or charged with DWI, a knowledgeable and skilled DWI attorney can advise you of your rights and prepare the best possible defense for you. At Levow & Associates, we have dedicated our entire law practice to representing the rights of defendants in DWI cases. To schedule a free and confidential consultation to see how we can help you, please contact us online or at (877) 593-1717.

More Blog Posts:

New Jersey DWI Defendant Challenges Alcotest Results, Citing Missing Device Maintenance Records, New Jersey DWI Attorney Blog, June 28, 2014

Alcotest Breath Testing Machine to be Retired by the State of New Jersey, New Jersey DWI Attorney Blog, September 9, 2013

New Jersey DWI Alert: State v. Holland “decided” by the Law Division, New Jersey DWI Attorney Blog, August 29, 2011