N.J. Weighs Reliability of Drunk Driver Testing Machine

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A new machine to help determine if drivers are drunk is generally reliable but is not perfect and can only be used with some adjustments and discretion, a New Jersey judge said Wednesday.

One of the adjustments may mean that thousands of people previously convicted of drunken driving could be let off the hook legally.

While other states have unceremoniously replaced the old Breathalyzer machine as a way to find drunken drivers, New Jersey has had a years long and highly technical legal dispute over whether the Alcotest 7110 is a reliable successor to the old machine. The Alcotest in now used in 17 New Jersey counties, with the Breathalyzer still in use in the other four.

The state Supreme Court agreed last year to make a decision about the machines, then appointed retired Judge Michael Patrick King as a special master on the issue and asked him to make a recommendation.

King submitted his report to the court on Tuesday; it was made public Wednesday.

The reliability of the machines is a big deal in New Jersey, because under state law, judges, not juries, hear all drunken driving cases. And they are given practically no leeway: if a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.

Some defense lawyers contend that means it’s a machine, rather than a person, who determines guilt or innocence in the cases. And that’s unfair, they say, because the machines certain margins of error.

King suggested that judges should be able to consider other evidence on cases where the Alcotest readings are very close to the threshold.

“We recommend close attention by a fact-finder to the clinical findings and observations of the suspect at the time of apprehension, because a possible, but improbable, overestimated .08 breath reading regarding blood level may conceivably obscure and mislead a judge to an erroneous conclusion where the clinical data in the field sobriety test might otherwise strongly suggest innocence,” he wrote.

Defense lawyers are happy with the potential of getting some legal wiggle room.

“The Breathalyzer has been called unimpeachably reliable,” said Jeff Gold, a Cherry Hill-based lawyer who represented the state bar association in the case. “In this case, it is impeachable.”

Some, though, were unhappy that the machine was deemed reliable at all because its maker, Draeger Safety Diagnostics Inc., did not turn over the computer code for experts to assess.

“They say the source code is proprietary,” said Evan Levow, a lawyer for defendants in the case, known as State v. Chun. “Well, constitutional rights are not proprietary.”

The state Attorney General’s Office saw the report as validating its claims that the test is reliable.

“The comprehensive report addresses all of the issues raised by the parties,” Criminal Justice Director Gregory A. Paw said in a statement. “We look forward to having this matter heard and decided by the Supreme Court.”

King also said that until the Alcotest machines are outfitted with breath temperature sensors, all the readings should be reduced by 6.58 percent. King wrote in his 268-page report that scientists have found that higher breath temperatures give higher blood-alcohol readings.

If the state Supreme Court accepts his recommendation, it would mean someone with a blood-alcohol reading as high as .085 percent would be found not guilty of driving under the influence.

The Supreme Court has said it will hold a hearing on the issue, then release its opinion.

Only then can at least 10,000 drunken driving cases be closed. Since January 2006, the sentences of first-time DUI offenders have been put on hold while the Alcotest issue is sorted out.

In the meantime, those people have been allowed to continue driving.

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On the Net:
http://www.judiciary.state.nj.us/opinions/supreme/State_v_Chun_Speci
al_Masters_Report.pdf