The New Jersey Supreme Court on Monday approved the state’s new breath test for drunken driving, allowing the prosecution of more than 10,000 suspected drunken drivers to resume.The manufacturer, however, must provide training and software data on the Alcotest 7110 for defense lawyers under the 6-0 ruling by the state’s highest court.
The decision came seven years after the Alcotest machine began being used in New Jersey. The rollout was halted in 2006 after lawyers for accused drunken drivers raised questions about the reliability of the machine.
Prosecutions of more than 10,000 DWI cases from 17 of the state’s 21 counties have since been on hold while the state’s highest court evaluated the Alcotest.
The Alcotest machines replaced Breathalyzer devices, which had been used for a half-century.
Alcotest machines measure blood-alcohol levels using two independent tests and leave much less room for human error than the Breathalyzer test.
However, higher breath temperatures were found to give higher blood-alcohol readings.
The reliability of the new machines is critical in New Jersey because judges, not juries, hear all drunken driving cases and rely nearly entirely on the reading of the machine. So, if a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.
Alcotest is made by a Pittsburgh-based U.S. unit of the German company Draeger. The unit had been in Denver. Messages seeking comment from Draeger was not immediately returned.
The state had already spent millions buying Alcotest machines to replace Breathalyzer devices, when prosecutions were halted following objections from defense attorneys about the reliability of the tests.
The case went up to the New Jersey Supreme Court, which appointed Michael Patrick King, a retired judge, as a special master to obtain expert testimony on the machine.
The court’s 131-page decision largely adopted King’s determination that the Alcotest was reliable. It rejected, however, King’s suggestion that a breath temperature sensor be added to the Alcotest machine, concluding that was unnecessary and impractical.
The attorney general’s office, which backed the machine, had argued it would cost $1,300 more for a machine with a sensor, $1,600 per to retrofit existing machines.
Attorney General Anne Milgram said her office was pleased that the court upheld “the scientific reliability of the Alcotest and the admissibility of its results in evidence.”
“The court’s ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws,” she said in a statement. “The Alcotest, utilizing state-of-the-art technology and a host of additional safeguards, will provide strong evidence and sure justice for those who violate New Jersey’s drunken driving laws.”
The decision was generally welcomed by a lawyer who represented the New Jersey State Bar Association in the case, Jeffrey E. Gold.
Besides training and access to software changes, the ruling allows defense lawyers and experts to purchase the $13,500 machines, Gold said.
“That’s very important, to put the defendants on an even playing field with the state,” Gold said. “We want transparency and fairness.”
He believes the decision is the first on Alcotest’s reliability by a state’s highest court.
Evan M. Levow, a lawyer for many DWI suspects, said they would ask the U.S. Supreme Court to accept an appeal.
He maintained that the machine has not been proved reliable. He said that lawyers can’t confront officials who program the Alcotest _ to challenge the way they calibrate the machines, among other things. That inability deprived defendants of due process and equal protection, he said.
“This case raises fundamental issues of constitutional rights,” Levow said.
