Anyone who has followed the course of anti-drunk driving enforcement will likely understand that there are two primary methods used by police to determine a suspect’s blood-alcohol concentration or “BAC.” The measurement of the amount of alcohol in the blood by volume has long been a primary tool for police agencies when attempting to determine if a motorist is legally intoxicated.
Here in the Garden State, breathalyzer machines have been used for decades as a way to determine BAC by sampling the breath of an individual to discern the percentage of alcohol in a person’s bloodstream. This has allowed police and state prosecutors to more or less quantify a driver’s “drunkenness” as a means to convict the accused DWI defendant in a court of law.
As New Jersey drunk driving defense attorneys, the legal staff at the Law Offices of Jonathan F. Marshall have the necessary background in New Jersey DWI-DUI law, as well as trial experience, to provide valuable legal representation to clients who have been charged with operating a motor vehicle while under the influence of beer, wine, hard liquor or other alcohol-based beverage. We also are skilled in defending those drivers accused of impaired driving due to use of doctor-prescribed medications or even illicit drugs, such as marijuana or cocaine.
Over the summer, there has been some activity in the area of challenges to the usefulness and accuracy of the breath testing machines used by New Jersey’s state and local police agencies. In fact, some have suggested that the ubiquitous Alcotest device be retired from active use as a way to determine BAC levels in drunken driving suspects.
According to various sources, it has been reported that New Jersey law enforcement officials have themselves revealed that the Alcotest devices will be phased out come 2016. More than a few DWI-DUI attorneys across the state have gone as far as to demand that the machines be decommissioned ASAP.
Much of this furor is pinned to the alleged inaccuracies of the devices due in many instances to the Alcotest’s database, which many drunk driving lawyers argue is faulty or incomplete at best. The fact that multiple court-ordered software fixes have yet to be made has only added fuel to the fire. For those who may be wondering, the original mandated revisions to the Alcotest database and software were laid down by the Supreme Court in State v. Chun back in 2008 (194 N.J. 54).
In State v. Jane H. Chun, et al. (A-96-06), the New Jersey Supreme Court addressed the scientific reliability of the Alcotest 7110 MKIII-C machine. As a result of the ruling in that case, the Court noted that the measurements derived from the Alcotest breath-testing device were generally scientifically reliable, based on certain conditioned changes to the machine software. The argument is that the fixes mandated then and subsequently have not been performed and leave the machines relatively inaccurate.
With pressure from various segments of the legal community here in New Jersey, including requests to the New Jersey Supreme Court to declare the device unsuitable to its job, it will be interesting to see how soon there might be action on this issue. However, it should be noted that given the importance that this machine represents to the state in terms of convicting motorists of drunken driving, we may only see the end of the Alcotest device once the calendar hits 2016 in several years.
As explained by its detractors, one of the major flaws that has reportedly affected the Alcotest device is the aging fuel cells in these machines. The fuel cell is one of the components that serve as an alcohol measuring instrument; however, as these components get older they reportedly can provide incorrect calculations, but apparently, for more than five years the State of New Jersey has failed to disclose this problem.
Per Chun, the database requirement allowed motorists charged with driving while intoxicated a chance to review the particular Alcotest machine’s operation to assess whether the device was working as expected at the time the defendant’s breath sample was tested. However, because the data is incomplete and corrupt on the website, some have argued that it is currently impossible to assess whether a machine is or was operating reliably.
Whether the latest push to junk the Alcotest machines will be effective has yet to be seen. But as the State’s plan to retire these units will occur within the coming three years, it is a certainty that at some time in the future, there will be other methods, means and devices to determine a suspect’s BAC.
Alcotest Should Be Discontinued Right Away, DWI Lawyers Say; Law.com; June 18, 2013