Articles Posted in Alcotest

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The device used for breath testing by New Jersey police in investigations of suspected driving while intoxicated (DWI), known as the Alcotest, has come under significant scrutiny several times in recent years. In order to ensure the accuracy of the results produced by the device, police must perform regular maintenance and calibration. Our New Jersey DWI lawyers were involved in a case before the New Jersey Supreme Court in 2008 that produced a set of procedures police must follow for Alcotest results to be admissible in court, including standards for device maintenance and calibration. Starting in 2016, allegations of misconduct by a police sergeant in charge of maintaining Alcotest devices in five counties called over 20,000 DWI cases into question. In July 2019, the New Jersey Supreme Court announced that a four-judge panel would review those cases, and could grant post-conviction relief (PCR) when appropriate.

New Jersey’s DWI statute allows prosecutors to prove that a defendant was impaired with evidence of blood alcohol content (BAC). A BAC of 0.08 percent or higher creates a presumption of intoxication. Police throughout the state use the Alcotest to perform breath tests on DWI suspects. In State v. Chun, the state supreme court addressed concerns about the Alcotest’s accuracy and reliability. Its 2008 decision in that case requires police to follow specific calibration procedures, and to document routine performance of those procedures. Prosecutors seeking to prove DWI with BAC evidence must produce the most recent maintenance report predating the use of a device by a defendant.

A 2016 indictment against a former sergeant with the New Jersey State Police accused him of filing false Alcotest maintenance reports for devices in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. An investigation found that 20,667 DWI cases from 2008 to 2016 relied on devices with potentially false documentation. The state supreme court appointed a special master to review the matter. The special master issued an order in November 2017 staying all cases involving potentially-affected Alcotest machines. Her investigation found that the falsified records called a substantial number of DWI cases into question. The state supreme court affirmed this report in a November 2018 ruling.

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Prosecutors in New Jersey must prove every element of the offense of driving while intoxicated (DWI) beyond a reasonable doubt. In cases that rely on breath testing to establish blood alcohol content (BAC), this includes evidence that the equipment used by police met the requirements of state law. Our firm was involved in a landmark 2008 ruling by the New Jersey Supreme Court, State v. Chun, which established procedures for maintaining and calibrating the breath-testing device used by most New Jersey police departments. The court’s decision also identified a set of “foundational documents” that prosecutors must produce to establish that police have followed these procedures. In September 2018, the New Jersey Appellate Division ruled in State v. Ogden on a challenge to the foundational documents offered by the state in a DWI case.

Under the New Jersey DWI statute, BAC of 0.08 percent or above creates a presumption of impairment. State law therefore requires drivers suspected of DWI to submit a breath sample for testing by police. Most police departments around the state use a device commonly known as the Alcotest to test breath samples. These devices have been controversial because of concerns over the training of the officers administering the tests, and the accuracy of the test results. The New Jersey Supreme Court ruled in Chun that Alcotest results are admissible in court, provided that the state meets strict requirements for the maintenance of the devices and the conditions in which breath tests may be performed.

In addition to offering evidence that police followed the testing procedures established by Chun, such as a twenty-minute waiting period before a DWI suspect may submit a breath sample, police must establish that the Alcotest device had been properly calibrated and was in good working order when the defendant was tested. The court identified three “foundational documents” in Chun that prosecutors must produce:
1. The most recent calibration report for the device from before the date of the defendant’s test, which must include information on the credentials of the individual who did the calibration;
2. The most recent “new standard solution report”; and
3. The “certificate of analysis of the 0.10 simulator solution used in a defendant’s control tests.”
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Prosecutors in New Jersey may offer two types of evidence to prove guilt in driving while intoxicated (DWI) cases. First, they may introduce testimony from police officers and others who witnessed a defendant’s appearance and demeanor. This may include testimony about field sobriety tests, or testimony from officers trained as drug recognition experts. The second method allowed by the New Jersey DWI statute is evidence of blood alcohol content (BAC) of at least 0.08 percent. Most police departments in New Jersey use a device known as the Alcotest to collect breath samples and test them to determine a DWI suspect’s BAC. A landmark 2008 decision by the New Jersey Supreme Court, State v. Chun, established standards for the use of these devices in order to maximize their accuracy. One rule created by the Chun decision requires women who are over sixty years of age to provide a smaller breath sample than other people, based on findings that women at that age are generally unable to provide as much breath as their male peers. A 2013 follow-up order in the Chun case limited the state’s ability to prosecute women over the age of sixty for refusal to submit a breath sample.

New Jersey’s implied consent statute requires drivers to submit to breath testing in DWI investigations. Refusal to do so is a separate motor vehicle offense, punishable by fines and driver’s license suspension. The Alcotest requires an individual to blow into a tube connected to the device for a sustained period of time, in order to provide the 1.5 liters of air needed for the test. The individual must seal their lips around the tube so that no air escapes while they are blowing. New Jersey courts have held that an individual may be found guilty of refusal for repeatedly failing to provide an adequate breath sample, such as by failing to seal their lips around the tube or failing to blow for long enough.

Prior to the 2008 ruling in Chun, a court-appointed special master issued a report that recommended various standard procedures for administering the Alcotest. This included the 1.5-liter minimum volume of air. The special master also noted that the evidence supported a lower required volume for women older than sixty. The court reviewed research showing that, after age sixty, women’s average volume of breath was 1.4 liters. This average volume decreased by 0.1 liter every ten years afterwards. The court accepted these findings and ruled that women over the age of sixty must only provide 1.2 liters of air. It also dismissed possible objections to the two standards under the Equal Protection Clause.
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Most New Jersey police departments use a device known as the Alcotest to measure blood alcohol content (BAC) in breath samples submitted by individuals suspected of driving while intoxicated (DWI). Under New Jersey DWI law, a person with BAC of at least 0.08 percent is presumed to be legally impaired. In 2008, we were involved in a case before the New Jersey Supreme Court, State v. Chun, that established statewide procedures for calibrating and maintaining Alcotest devices and administering breath tests. In 2016, a sergeant with the New Jersey State Police was charged with allegedly falsifying Alcotest calibration records. The New Jersey Supreme Court has now effectively tossed out Alcotest results in thousands of cases involving machines under that sergeant’s supervision. The court’s decision in State v. Cassidy, issued on November 13, 2018, is likely to have a substantial impact for months to come.

The Alcotest 7110 MKIII-C requires careful calibration to ensure reliable results. The Chun ruling held that Alcotest results are admissible to establish BAC in DWI cases. It also held, however, that police must follow specific procedures to maintain and calibrate the devices, and that prosecutors must make documentation available about the maintenance and calibration of the device used in each case.

The “0.10 simulator solution” used in Alcotest control tests must be maintained within a specific temperature range. Chun requires measurement of this temperature with a thermometer that is traceable to standards established by the National Institute of Standards and Technology (NIST). A “Calibration Report” and “Certificate of Analysis of the 0.10 Simulator Solution” are among the “foundational documents” required by Chun to establish an Alcotest device’s accuracy.
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Police departments throughout New Jersey use a device known as the Alcotest to test breath samples in cases of suspected driving while intoxicated (DWI). New Jersey prosecutors charged a former State Police sergeant with multiple offenses in 2016, alleging that he failed to perform maintenance on Alcotest devices under his supervision, as required by state law, and then filed fraudulent reports stating that this maintenance was performed. The New Jersey Supreme Court recently ruled in State v. Cassidy that as many as 20,000 DWI defendants may challenge their charges or convictions. At the federal level, the Third Circuit Court of Appeals reviewed claims that the former sergeant’s alleged acts violated DWI defendants’ civil rights in Ortiz v. N.J. State Police.

The Alcotest device tests breath samples to determine blood alcohol content (BAC). Under the New Jersey DWI statute, BAC of 0.08 or higher establishes a presumption that the person was legally impaired by alcohol. In 2008, we participated in a landmark proceeding before the New Jersey Supreme Court that challenged the the accuracy of the Alcotest device and the admissibility of its results. While the court’s ruling in State v. Chun affirmed the use of the Alcotest device, it established strict procedures for maintaining and calibrating the device, and for providing documentation to DWI defendants indicating that police departments have followed these procedures.

After the former sergeant was arrested and charged, the New Jersey Supreme Court appointed a special master to determine whether the alleged failure to properly calibrate and maintain Alcotest devices in multiple counties affected the reliability of the evidence produced by those devices. The special master issued a report in March 2018 concluding that the failure to use a particular type of thermometer during calibration, as required by Chun, rendered the results of more than 20,000 tests scientifically unreliable. The state supreme court adopted the special master’s report in November 2018, effectively tossing out the state’s BAC evidence in over 20,000 DWI cases.
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New Jersey law allows prosecutors to establish that a defendant charged with driving while intoxicated (DWI) was legally impaired by showing that the amount of alcohol in their blood around the time of their arrest was above a minimum amount. Most police departments in New Jersey use a device known as an Alcotest to determine BAC by testing a sample of a suspect’s breath. In order to ensure that a device gives accurate readings, it must have regular maintenance and calibration. A 2008 New Jersey Supreme Court decision, State v. Chun, established standards and procedures that police must follow regarding both the maintenance of the device and the manner in which breath samples are obtained. In 2016, a State Police Sergeant was accused of submitting false Alcotest maintenance reports. This led to an order staying all pending New Jersey DWI cases that might involve evidence obtained from devices serviced by this officer. A recent report from a court-appointed special master stated that the improper calibration “undermine[s] or call[s] into question the scientific reliability of breath tests performed” with those devices.

An individual is presumed to be legally impaired, for the purpose of the New Jersey DWI statute, if their BAC is 0.08 percent or more. Prosecutors have used a variety of devices over the years, often collectively known as “breathalyzers,” to measure BAC from breath samples. New Jersey police began using the Alcotest device in the late 1990’s and early 2000’s. By the mid-2000’s, most police departments around the state were using this device. Since a defendant’s BAC measurement is one of the state’s most important pieces of evidence, confirming that the Alcotest reliably gives accurate readings is critically important. We were involved in the Chun case, which resulted in a series of standards for maintaining and calibrating Alcotest devices, and procedures for reporting on the devices’ regular maintenance.

The chemical processes that the Alcotest device uses to measure BAC require careful calibration. The device uses “simulator solutions” as controls, which must be kept within a specified temperature range. The individual performing the calibration must use a certain type of thermometer to measure the temperatures of the solutions. If any of the solutions are not within the required temperature range, the device may not give accurate readings. Chun states that maintenance reports, showing that calibrations were performed within these guidelines, must be made available to defendants or their counsel.
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The state has the burden of proving guilt beyond a reasonable doubt in New Jersey driving while intoxicated (DWI) cases. A defense attorney’s job, in part, is to identify defects or deficiencies in the state’s case. DWI cases often require a considerable amount of documentation. Under the DWI statute, a person is guilty of DWI if they operate a vehicle while under the influence of alcohol or drugs, or while their blood alcohol concentration (BAC) is at least 0.08 percent. Police can determine BAC by testing samples of breath, blood, or urine. Breath testing is most common, followed by blood. Each type of testing requires proof that police followed specific procedures. The evidence must meet standards set by the New Jersey Rules of Evidence (NJRE), state law, and court decisions.

Authentication of Documents

In a courtroom, BAC evidence generally takes the form of written reports. In the case of breath testing, this is usually a series of reports generated by the Alcotest device. BAC results obtained from blood samples involve reports from the laboratory that performed the test. NJRE 901 requires authentication of all documents offered as evidence, meaning evidence that the document is, in fact, what the party offering it claims it is. This can be accomplished by having the person who created the document authenticate it in sworn testimony. Some documents are “self-authenticating,” as described by NJRE 902.

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In order to convict someone of driving while intoxicated (DWI), New Jersey prosecutors must prove beyond a reasonable doubt that the person was impaired by alcohol or drugs. State law allows police to collect breath samples to test blood alcohol concentration (BAC) in suspected DWI cases. Police in New Jersey typically use a device known as an Alcotest, which analyzes breath samples provided by blowing into a tube. These devices require careful maintenance and calibration in order to produce reliable measurements. In October 2017, prosecutors in several New Jersey counties notified thousands of individuals with DWI convictions or pending charges that police may have mishandled BAC evidence in their cases. A specially appointed judge will determine whether any New Jersey DWI cases should be reviewed in light of this alleged misconduct.

New Jersey law creates an incentive for prosecutors to rely on BAC evidence. They can prove that a defendant was legally impaired through circumstantial evidence, such as an arresting officer’s testimony about a DWI defendant’s behavior and appearance. New Jersey’s DWI statute creates a presumption of impairment, however, when a defendant’s blood alcohol concentration (BAC) was 0.08 percent or higher at the time of, or within several hours of, their arrest. Penalties are also higher for first-time DWI convictions if the defendant’s BAC was 0.10 percent or greater.

The Alcotest device purports to measure the concentration of alcohol in a person’s blood by performing tests on samples of that person’s breath. This requires a certain amount of extrapolation using algorithms in the device’s programming. The device uses infrared technology and the process of electrochemical oxidation to test breath samples. This latter process is particularly sensitive to environmental factors like temperature and potential contaminants. The New Jersey Supreme Court’s 2008 decision in State v. Chun, in which we represented several appellants, established guidelines for the maintenance and calibration of these devices, as well as documentation to indicate when an Alcotest device was most recently serviced.

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New Jersey’s driving while intoxicated (DWI) statute allows prosecutors to use several methods to try to prove that a defendant was too impaired to operate a vehicle. One of these methods requires test results showing that a defendant’s blood alcohol content (BAC) was 0.08 percent or higher, the so-called “legal limit” for DWI. This is the preferred method for most prosecutors, and New Jersey law helps facilitate the collection of BAC evidence. Refusal to submit to a breath test is a separate traffic offense alongside DWI, punishable by a fine and license suspension. Courts have expanded the scope of the refusal statute beyond merely refusing even to attempt to provide a breath sample. The Alcotest device used by New Jersey police to measure BAC requires a sizeable sample, and a refusal charge can result from not trying hard enough. The New Jersey Appellate Division reviewed this sort of situation recently in its decision in State v. Hernandez.

Under New Jersey law, anyone operating a motor vehicle on a public road is deemed to have given their consent to providing a breath sample to police upon suspicion of DWI. This “implied consent” law overrides any concerns about Fourth Amendment rights against warrantless searches or Fifth Amendment rights regarding testifying against oneself. A conviction for a first refusal offense can result in a license suspension for seven months to one year. For a second offense, the period of suspension is two years. A 10-year license suspension comes with a third or subsequent conviction. Fines range from a minimum of $600 for a first offense to a maximum of $2,000 for a third or subsequent offense.

New Jersey police use a device known as the Alcotest 7110 MK III-C to measure BAC. A New Jersey Supreme Court decision from 2008, State v. Chun, established various standards and procedures for the Alcotest. The device requires a minimum sample size to ensure consistency and, to the greatest extent possible, accuracy. Most people must breathe into the device enough to produce 1.5 liters of air, although for women over the age of 60, this minimum amount is lowered to 1.2 liters. They must also breathe into the device for at least four and a half seconds, something that may not be possible for some people. Courts have attempted to distinguish between people who are incapable of providing a sufficient breath sample and those who could provide a sample but do not do so.

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New Jersey law allows prosecutors to offer evidence of driving while intoxicated (DWI) in two ways. One way relies on evidence like testimony by police officers about outward signs of intoxication, including appearance and behavior. The second method involves evidence that a defendant’s blood alcohol content (BAC) was above a certain level. This is often known as “per se” DWI because the BAC evidence creates a presumption that the defendant was impaired by alcohol. A DWI defense strategy should take both methods of proving DWI into consideration. Defending against a per se DWI charge in New Jersey often involves challenging police equipment more than police witnesses. The Appellate Division recently considered an appeal of a per se DWI conviction in State v. Page.

The DWI statute defines the offense as driving either “while under the the influence” of alcohol or drugs or with a BAC of at least 0.08 percent. The latter definition constitutes per se DWI. It does not necessarily require any evidence other than the defendant’s actual or imminent operation of a motor vehicle and the defendant’s BAC at or near that time. It is possible to obtain an acquittal or dismissal in a DWI case even with evidence of a BAC over 0.08 percent. It is also possible, however, for the state to obtain a conviction without BAC evidence or with a BAC of less than 0.08 percent.

New Jersey courts have established a variety of procedures and protocols that police must follow in an effort to ensure the accuracy of BAC test results. Police in this state commonly use a device known as the Alcotest to measure BAC. The defendant must provide a breath sample by blowing into a tube. The device then measures the alcohol content of the sample. The Alcotest requires regular maintenance and careful calibration, and it can produce inaccurate results without either of these. A 2008 decision by the New Jersey Supreme Court, State v. Chun, establishes maintenance and record-keeping protocols that police must follow for Alcotest results to be admissible in court. It also requires police to observe a DWI suspect for 20 minutes before administering the test.

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