New Jersey DWI Breath Alcohol Test Information

Beating a New Jersey Breathalyzer Test

DWI/DUI Defense Lawyer Evan Levow

Sobriety test complaints put DWI cases on hold

Saturday, November 26, 2005

By JEFFREY GOLD
ASSOCIATED PRESS

NEWARK - Dozens of drunken-driving cases are on hold as state judges address complaints from defense lawyers that the device replacing the Breathalyzer is not reliable.

The state however, maintains that a judge's ruling in Camden County in 2003 means that the Alcotest 7110 MKIII-C is certified as trustworthy and should be recognized as such by all state judges.

Since the ruling, the Alcotest has been deployed in 10 other counties, with the remaining 10 to be onboard by next November, said state Deputy Attorney General John J. Dell'Aquilo.

The 2003 hearing, a multiweek affair that included testimony from experts hired by the state as well as defense lawyers, cost prosecutors about $250,000, Dell'Aquilo said.

"We feel as a matter of judicial economy and the proper utilization of state resources, we don't want to have to repeat that hearing in 20 additional counties," he said.

That argument carries little weight with Cherry Hill lawyer Evan M. Levow, whose practice is devoted to representing people accused of drunken driving. He contended that he has seen erroneous readings of blood alcohol content in many of the 20 Alcotest cases he is handling.

The legal threshold for intoxication in New Jersey is 0.08 percent.

"Properly configured ... this machine is probably very, very good. However, as it stands now, it is not," Levow said. "The attorney general should recognize there are significant issues with this machine and it impacts upon the fundamentals of justice and ought to decertify this machine until these issues are resolved."

This fall, Levow won an order that put Alcotest prosecutions in Middlesex County on hold after persuading state Superior Court Judge Jane Cantor not to take judicial notice of the 2003 ruling by a fellow trial judge, Francis J. Orlando Jr.

Six hundred fifty-four drunken-driving cases were pending in Middlesex in October, the most of any county except Monmouth. Court officials could not immediately say how many stem from Alcotest results. Statewide, 76,502 DWI cases have been brought over the past two years, and 6,505 are pending.

Alcotest cases are proceeding in 10 other counties: Burlington, Camden, Cumberland, Gloucester, Hunterdon, Mercer, Morris, Salem, Union and Warren.

"The fact that the state is continuing prosecutions while this matter is unsettled is fundamentally unfair," Levow said. "I think it's also extremely problematic that they will not divulge the software, the platform upon which this machine runs, and yet they're prosecuting people."

He said the state and Alcotest's maker withheld the software from the Camden County hearing in 2003, claiming it was proprietary information.

"As a result, the state has created its current emergency," Levow said. "The state has rolled out its machine ... without a definitive determination that the machine is scientifically reliable in New Jersey."

The state this month countered by asking an appellate panel for permission to challenge Cantor's refusal to accept the 2003 ruling. Prosecutors also want the panel to lift the hold on all Middlesex Alcotest cases.

Dell'Aquilo, who is leading the state's efforts on Alcotest, said delaying DWI cases "leaves dangerous drunken drivers free to drive while they are waiting for trial."

The Alcotest is made by Draeger Safety Diagnostics Inc. of Irving, Texas, a unit of Draegerwerk AG of Lubeck, Germany. First produced in 1993, Alcotest is being used in nine states and 20 nations.

It costs about $13,000, and municipalities can use money from the Drunk Driving Enforcement Fund, which comes from surcharges on convicted drunken drivers, and money forfeited by other criminals they prosecuted, Dell'Aquilo said. A town needs only one machine, he said.

Unlike the Breathalyzer, the Alcotest automatically takes readings. It uses two independent, simultaneous methods to analyze a suspect's breath to determine the level of intoxication: infrared light and an electrochemical reaction. It automatically produces a printout with both readings.

The Breathalyzer requires its operator to compare the difference in the amount of light coming from two tubes of chemicals. The suspect's breath is introduced to one tube, which darkens if alcohol is detected.

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