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Should Courts Rely on Untestable Evidence of DUI?


A recent study released by the Seton Hall Center for Policy and Research takes a close look at New Jersey's adoption of the Alcotest 7110 MK III-C, made by Draeger AG & Co., as the state's sole sanctioned device for breath alcohol analysis. At the heart of the thorough review, which was headed by three members of the faculty at Seton Hall University: Draeger's refusal to consent to independent testing of its device or disclose software codes that reveal the methodology behind the results it produces. The report concluded that "the New Jersey Supreme Court cannot be the last word on the constitutionality of its foreclosure of individual defendants' challenge to the Alcotest in general or to the particular device used to measure their blood alcohol concentration."

From the development in the 1930s of the Drunkometer to its later cousin the Breathalyzer, states have been eager to put technology to use that can objectively test suspected drunk drivers on the roadside. While the subjective observations of law enforcement officers still play a role in DUI/DWI cases, prosecutors primarily rely on empirical evidence of intoxication to nail down convictions. But those results also must be substantiated in a court of law, for all methods of measuring breath alcohol are susceptible to malfunction, calibration errors or improper use.

In the 37-page report, "The Untestable Drunk Driving Test," the authors describe the Alcotest as "designed to completely remove all subjectivity on the part of the officer from the determination of blood alcohol concentration." They raise three important issues surrounding the implementation of the latest Alcotest device in New Jersey:

  • The Alcotest 7110 MK III-C will be used to the exclusion of all other breath alcohol analyzers
  • The device is doubly immune from being challenged or tested, both by the state's contract with Draeger and by the company's proprietary rights to its software
  • Because all measurement devices like the Alcotest are capable of error, they must be submitted to scientific analysis and be eligible for challenges by criminal defendants

The report explains why breath measurements can fail to accurately represent blood-alcohol content (BAC). For instance, if the subject holds his or her breath or hyperventilates, the amount of alcohol in the breath sample will vary accordingly due to changes in the temperature of the airway, because ethanol is so volatile. Other factors include the subject's body temperature, breath temperature or relative lung volume. Based on a thorough review of the science behind breath-alcohol measurement, the authors suggest that New Jersey and other states may be overly confident of the Alcotest's accuracy.

As things stand, however, the results produced by Draeger's latest measurement method will never have to face a motion in limine or other exacting scrutiny before a court of law. The contract between the supplier and buyer stipulated that no one could "reverse engineer, decompile or disassemble the Firmware/Software or otherwise attempt to derive source codes from the Firmware/Software, nor shall Licensee allow any other entity to do so." New Jersey purchased a black box of secrets and hidden clues that could jeopardize the rights of citizens.

Intellectual Property Meets Reasonable Doubt

A 2008 New Jersey Supreme Court decision, State v. Chun, reviewed challenges from a variety of defendants who were convicted of driving while intoxicated under N.J.S.A. Section 39 based on results produced by the Alcotest 7110 MK III-C. These consolidated cases included direct challenges of Alcotest results as well as arguments involving defendants' constitutional rights. One problem: the state did not have access to vital evidence and Draeger did not have to produce it because it was a trade secret. Not uncommon in complex litigation, the court appointed a Special Master to review and report on a particular issue in evidence.

Two conflicting reports from software consultants considered the reliability of the Alcotest based on confidential examinations of its source code. The Special Master concluded that both the software and hardware elements were scientifically reliable. The Seton Hall Center for Policy and Research argues that the small amount of evidence revealed in State v. Chun shows why the device should receive full scientific scrutiny to test and challenge its accuracy.

A law enforcement officer's account of what happened on the scene of an arrest should never be excluded from court — accurate or flawed, it is indispensable evidence that a court must consider. By the same token, every bit of reasoning behind an accusation that a driver was intoxicated should see the light of day. Effective criminal defense attorneys know that one of their primary duties is to inform judges about every fact they need to make an informed decision.

Call Law Offices of Joseph R. Donahue, LLC at (201) 574-7919 today to discuss your specific case, and get advice from our experienced attorney.

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