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Univ. of South Carolina School of Law

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Friday, December 12, 2008

Judiciary Under The Influence, Take 3: New Jersey Faces Observation Period Problems With Alcotest

I've written two previous posts (here and here) about the New Jersey controversy over its Breathalyzer alternative, the Alcotest 7110 MK III-C, a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.  Without rehashing that controversy, I think that it is enough to say that

     -the Supreme Court of New Jersey had questions about the reliability of that test;

     -appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

     -Judge King initially reported that the technology was unreliable in a 268 page report;

     -Judge King later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer; and

     -the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

At the time of those posts, I mused whether the court was acting based upon actually thinking that the test is reliable or whether it was a "judiciary under the influence" because 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible.

Even assuming propriety by the Court, however, do we have practicality?  I didn't report on the case of New Jersey Judge Peter Toursison at the time, but I now present to you abbreviated facts of what he did during the twenty minute observation period that has to precede the administration of the Alcotest:

     "Tourison attempted to apply Chapstick to his lips, which delayed the Alcotest. According to protocol for operating the device, nothing can be in or around a driver's mouth for 20 minutes before the test is administered. When the police took the Chapstick away, Tourison produced and used another tube before it, too, was confiscated.

     Then, when a patrolman turned his back, Tourison placed a penny in his mouth. It's a common ploy, says Herbert Leckie, of DWI Consultants in Lebanon, N.J., who trains lawyers and police on Alcotest operation. While the penny won't affect the test, the presence of an object in a suspect's mouth may show the officer didn't perform a proper oral inspection, thus fouling the testing process."

Now, Judge Tourison did later plead guilty to DWI, but Plainfield Police Officer Rodney Sanders may be luckier.  Sanders claimed that after North Plainfield Officer Robert DeJesus pulled him over for suspected DWI, he failed to comply with the 20 minute observational period because he only had him perform two field sobriety tests.  Meanwhile, (in addition to insisting that he kept an eye on Sanders for 24 minutes, making sure he did not burp, regurgitate or go to the bathroom in that time period), DeJesus has claimed that he only administered two field sobriety tests "to save Sanders the embarrassment, knowing Sanders was a policeman who had served longer than he."

It seems to me that when you potentially have problems with your breath alcohol test based upon pennies, chapstick, and deferential police officers, you don't have a very good test, and I wonder whether the Court might eventually changed his mind if some similar problems become evident.

-CM

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