EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, January 8, 2008

Judiciary Under The Influence?: New Jersey Supreme Court Hears Arguments On Reliability of Breathalyzer Alternative

The Alcotest 7110 MK III-C is a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.  According to its maker, Drager, the Alcotest 7110 offers indisputably the most advanced Evidential Breath alcohol testing available today.  Indeed, Drager boasts that this and similar Drager technologies have been accepted in the courts of many countries.  Increasingly, the United States has become one of those countries, with dozens of states now using Drager technology, sometimes replacing the use of the Breathalyzer test, which was invented in 1954.  New Jersey first started using the Alcotest 7110 in a few counties in 2001, and it later became the first state to have hearings about the reliability of the technology.

In the 2003 case, State v. Foley, 851 A.2d 123 (N.J. Super. 2003), New Jersey Superior Court Judge Francis J. Orlando Jr. found that results obtained from the Alcotest 7110 were admissible because they were generally accepted in the relevant scientific community, satisfying the test for admissibility laid out in Frye v. United States, which New Jersey courts still apply, even though it has been replaced in federal courts and most state courts by the test laid out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Since the Foley opinion, New Jersey extended its use of the Alcotest 7110 to 17 of its 21 counties.

Nonetheless, New Jeresy continued to have doubts about the reliability of the technology, and the New Jersey Supreme Court eventually appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings to it.  Pending that investigation, New Jersey froze hundreds or thousands of drunken driver prosecutions which relied upon Alcotest 7110 test results.

In February, King issued an initial, 268 page report, which seemed to indicate that the technology was unreliable.  Specifically, King noted that the Alcotest machines were not equipped with breath temperature sensors and that until they were so equipped, all readings should be reduced by 6.58%, meaning that defendants with readings as high as .085 percent should be found not guilty of driving under the influence despite New Jersey's legal BAC limit of .08 percent.  In November, however, King seemingly reversed himself, releasing a new, 108 page report, which stated that despite the "minor defects" with the technology, it was actually more reliable than the Breathalyzer test.

Yesterday, these results and other evidence both supporting and challenging the reliability of the technology were presented to the New Jersey Supreme Court.  At stake is not only the future admissibility of Alcotest 7110 test results in New Jersey and perhaps other states, but also, whether the frozen drunk driving prosecutions in New Jersey will be thawed.  This latter stake has led critics of the technology to contend that King's about face was not a legitimate change of heart, but instead "a political determination that save face for the Attorney General's Office and the courts."  Without having read the entirety of both of King's reports, I can't say whether the Alcotest 7110 is reliable, but in the absence of a legitimate explanation for King's change of heart, I'm not sure that the reports themselves are reliable.



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