| The Supreme Court on March 17, 2008 adopted, as | | | | measurements by applying a corrective formula. In |
| modified, the reports and recommendations of | | | | pending prosecutions, and in future prosecutions |
| Special Master Judge King. This landmark decision | | | | based on tests conducted prior to the |
| changes the prosecution of DWI cases in New | | | | implementation of the Court's directives, the State |
| Jersey forever. Subject to certain conditions, the | | | | must review all AIRs that include three tests, |
| Court holds that the Alcotest is scientifically reliable | | | | perform the calculations to identify the correct BAC |
| and that its results are admissible in drunk driving | | | | in accordance with the corrective formula, and |
| prosecutions. State v. Chun 194 NJ 54 3-17-08 | | | | provide that data to the court. The calculations must |
| The Supreme Court held: | | | | be made a part of the evidence in any prosecution |
| 1. There is sufficient credible evidence to support the | | | | to facilitate appellate review. |
| continued use of a 2100 to 1 blood/breath alcohol | | | | 8. The Supreme Court found adequate support in the |
| ratio to estimate BAC from a breath sample. The | | | | record that catastrophic error detection should be |
| overwhelming evidence demonstrates that use of | | | | re-enabled in the Alcotest. This detection will allow |
| this ratio tends to underestimate the actual BAC in | | | | the machine to recognize catastrophic errors and |
| the vast majority of persons whose breath is tested. | | | | respond by shutting down. There is no basis for the |
| Although there may be a small number of individuals | | | | Court to conclude that the lack of catastrophic error |
| who are disadvantaged by a device that uses the | | | | detection could result in an inaccurate AIR in any |
| 2100 to 1 blood/breath ratio, there is sound scientific | | | | pending prosecution. |
| support for its continued utilization. | | | | 9. The Supreme Court found the overall programming |
| 2. The four criteria used by the device to identify a | | | | style and design of the source code to be |
| valid breath sample are, with one modification, | | | | acceptable. The exhaustive review undertaken in this |
| appropriate. The Court adopts the recommendation | | | | case revealed few actual errors or issues within the |
| that the minimum breath volume requirement should | | | | source code. There being no evidence in the record |
| be lowered, for women over sixty years of age | | | | that any other asserted shortcomings are more than |
| only, from 1.5 liters to 1.2 liters and concludes that | | | | stylistic or theoretical challenges, the Court declines to |
| this modification does not violate equal protection | | | | require any specific programming standards at this |
| rights. Regardless of minimum breath requirements, | | | | time. |
| no test will be accepted by the machine until the | | | | 10. In future revisions to the Alcotest software, The |
| infrared measurement plateaus, which only occurs | | | | Supreme Court ruled the State must: have the |
| when a suspect is expelling deep lung air. | | | | Alcotest software locked so that only the |
| Further, while selectively lowering the breath volume | | | | manufacturer can make revisions to the source code; |
| requirement will create a different level at which | | | | have the software revised so that the Alcotest |
| women over sixty may be charged with refusal, the | | | | identifies and prints the software version that it is |
| record demonstrates that this group, and only this | | | | utilizing on each AIR; and give detailed notice |
| group, may not have the physiological capability of | | | | consistent with due process to the public and the |
| providing a larger sample. In pending prosecutions, | | | | New Jersey State Bar Association of any future |
| and in future prosecutions based on tests conducted | | | | revisions. |
| prior to the implementation of the Court's directives, | | | | 11. The Supreme Court ruled Draeger must make |
| an Alcotest AIR with an insufficient volume error | | | | Alcotest training, comparable to that provided to the |
| message may not be used as evidence of refusal | | | | State, available to licensed New Jersey attorneys and |
| against women over the age of sixty, unless they | | | | their experts at reasonable times and locations within |
| also provided another sample of at least 1.5 liters. | | | | New Jersey and at a reasonable cost. |
| 3. The Supreme Court declined to adopt the | | | | 12. The Supreme Court ruled the twelve foundational |
| recommendation that a breath temperature sensor | | | | documents identified by the Special Master must be |
| be added to the Alcotest, concluding that this device | | | | provided during discovery in all matters. The operator |
| is both unnecessary and impractical. The record | | | | of the device shall be available to testify and shall |
| includes scant evidence of a correlation between | | | | produce evidence of his qualifications to operate the |
| breath temperature and increased breath alcohol | | | | device. The following foundational documents, |
| concentration, and no evidence that the theoretical | | | | evidencing the good working order of the machine, |
| increase in breath alcohol concentration would | | | | shall be admitted into evidence in prosecutions based |
| translate into an inaccurately elevated BAC. Further, | | | | on Alcotest breath testing results: the most recent |
| any potential effect is ameliorated by the 2100 to 1 | | | | calibration report, including control tests, linearity |
| blood/breath ratio and by use of truncated, rather | | | | tests, and the credentials of the coordinator who |
| than rounded, results, both of which serve to | | | | performed the calibration; the most recent new |
| underestimate results. Requiring the addition of a | | | | standard solution report prior to a defendant's test; |
| breath temperature sensor would also present an | | | | and the certificate of analysis of the 0.10 simulator |
| unreasonable maintenance burden on New Jersey's | | | | solution used in a defendant's control tests. These |
| breath testing program. | | | | foundational documents are not "testimonial," as |
| 4. A tolerance range of an absolute 0.01 percent (plus | | | | defined by the United States Supreme Court in |
| or minus 0.005 percent from the mean) BAC | | | | Crawford v. Washington and its progeny. In so |
| standard, coupled with the use of a like percentage | | | | holding, the Court aligns itself with the majority of |
| range of tolerance expressed as five percent plus or | | | | other courts, which have found that such documents |
| minus deviation from the mean, is both scientifically | | | | are business records, which do not implicate the |
| appropriate and consistent with the intention of the | | | | Confrontation Clause. |
| Legislature in adopting per se limits. The device must | | | | 13. The Supreme Court ruled the AIR itself, a |
| therefore be reprogrammed to comply with this | | | | "statement" of a machine, is not testimonial under |
| standard. In pending prosecutions, and in future | | | | Crawford because it does not implicate Crawford's |
| prosecutions based on tests conducted prior to the | | | | core concerns -- it is not a report of a past event, |
| implementation of the Court's directives, in which the | | | | given in response to police interrogation, with the |
| AIR reports a BAC obtained using a doubled | | | | purpose of establishing evidence that a defendant |
| tolerance range, the reported breath samples must | | | | committed an offense. Although the AIR is not |
| be reviewed to determine whether the results meet | | | | testimonial evidence, the Court nevertheless |
| this tolerance range. Any AIR that does not include | | | | mandates various safeguards to protect a |
| two valid tests within tolerance under this standard | | | | defendant's due process rights: the opportunity to |
| cannot be deemed to be sufficiently scientifically | | | | cross-examine the operator of the Alcotest, the |
| reliable to be admissible and shall not be admitted into | | | | routine production of all foundational documents in |
| evidence as proof of a per se violation. | | | | discovery, and the admission of the core foundational |
| 5. The Alcotest's use of the fuel cell "drift" algorithm | | | | documents into evidence at trial. |
| does not undermine its reliability. Scientific evidence | | | | The Court contemporaneously issued an Order |
| demonstrates that fuel cells begin to age as soon as | | | | vacating its January 10, 2006, stay of drunk driving |
| they are put into service, and will eventually cause | | | | prosecutions, appeals, and sentencing, which shall |
| the Alcotest's electric chemical test to underestimate | | | | proceed in accordance with the directives set forth |
| BAC. While there may be other means to | | | | therein. |
| compensate for this "drift," those means would not, | | | | The full 130 page opinion will be available at |
| in the end, be any more advantageous to | | | | Kenneth Vercammen is the 2008 Municipal Court |
| defendants than the minor upward adjustment that | | | | Attorney of the Year by the Middlesex County Bar |
| the algorithm effects. However, the Court adopts | | | | Association. He was selected one of only three |
| the Special Master's recommendation that the | | | | attorneys as a Super Lawyer 2008 in NJ Monthly in |
| devices be recalibratedsemi-annually instead of | | | | the Criminal - DWI category. Kenneth Vercammen |
| annually. A semi-annual calibration is consistent with | | | | was the NJ State Bar Municipal Court Attorney of |
| the manufacturer's recommendations and provides a | | | | the Year and past president of the Middlesex County |
| useful safeguard by affording a more regular | | | | Municipal Prosecutor's Association.(( He is the past |
| opportunity to evaluate and replace aging fuel cells | | | | chair of the NJ State Bar Association Municipal Court |
| 6. The Supreme Court concluded that the Alcotest's | | | | Section. He is the Deputy chair of the ABA Criminal |
| "weighted averaging" algorithm is an appropriate | | | | Law committee, GP Division. |
| calculation that results in a more accurate infrared | | | | KENNETH VERCAMMEN ATTORNEY AT LAW |
| measurement. It gives greater weight to the breath | | | | 2053 Woodbridge Ave. Edison, NJ 08817 |
| that, inevitably, includes the deepest air drawn from | | | | 732-572-0500 |
| the lungs. It therefore focuses the analysis on the | | | | NJ LAWS LEGAL WEBSITE: |
| portion of the breath sample that most accurately | | | | Criminal website |
| represents the subject's BAC | | | | Kenneth Vercammen was selected one of only three |
| 7. The buffer overflow error is a real error in the | | | | attorneys as a Super Lawyer 2007-2008 in NJ |
| programming that may cause the Alcotest to report | | | | Monthly in the Criminal - DWI. Kenneth Vercammen |
| incorrect results in situations involving a third breath | | | | was the NJ State Bar Municipal Court Attorney of |
| sample, which is taken only when the measurements | | | | the Year and past president of the Middlesex County |
| from the first two tests are not in tolerance. The | | | | Municipal Prosecutor's Association.(( He is the past |
| buffer overflow programming error, which must be | | | | chair of the NJ State Bar Association Municipal Court |
| corrected, affects only the final BAC result reported | | | | Section. He is the Deputy chair of the ABA Criminal |
| on the AIR. Because the infrared and electric | | | | Law committee, GP Division. |
| chemical measurements for all of the test samples | | | | KENNETH VERCAMMEN ATTORNEY AT LAW |
| are accurately reported on the AIR, the correct BAC | | | | 2053 Woodbridge Ave. |
| value can, and must, be computed from those | | | | |