In State v. Holland, the New Jersey Courts, once again, demonstrated a proclivity for disregarding clear precedent and fundamental fairness, in order to make it easier for the State to prove DUI. However, in spite of the inherit unfairness of the State's Driving While Intoxicated Laws, (New Jersey is one of the only states that does not permit individuals convicted of DUI to obtain a hardship license for traveling to work regardless of whether the loss of license would cause that individual to lose their job), Bell, Shivas & Fasalo, P.C. continues to fight hard for clients. Our recent successes include dismissals for failure to produce timely discovery, dismissals based upon irregularities with the Alcotest machine, having the Alcotest reading excluded for establishing definitive proof of failure to comply with the twenty (20) minute observation period, invalidating a motor vehicle stop for lack of probable cause and mitigating the effects of a DUI conviction in several cases where despite the strength of the State's case our ability to raise concerns about the testing procedures and probable caused the State agree to a plea bargain of three (3) rather than seven (7) months loss of license.
Many clients have been asking recently about the potential that the Alcotest may be excluded in some contexts based upon the media's coverage of several decisions concerning the admissibility of the Alcotest when a generic temperature probe, currently used in almost every Alcotest device in the State, is used rather than the Ertco-Hart. Not surprisingly, the Appellate Division recently decided this issue in favor of the State, but this issue will surely end up being decided by the Supreme Court. Nonetheless, most attorneys feel that the Supreme Court, a Court once renowned for a paramount devotion to justice, including being the first in the nation to establish a right to die (now recognized in every jurisdiction in the country) and being amongst the first to invalidate school segregation, will inevitably uphold the admissibility of the Alcotest. Notwithstanding its prior precedent and basic fairness, the New Jersey Courts currently tend to dispense with justice in order to maintain the status quo in DUI/DWI cases. As many clients and potential clients have questions regarding the Alcotest, Chun and the Ertco-Hart, the following is a basic analysis of the technical issues concerning the admissibility of the Alcotest in the DUI/DWI context.
The New Jersey Supreme Court held in Chun, that the novel Alcotest, utilizing New Jersey Firmware version 3.11, is "generally scientifically reliable," subject to certain conditions established by the Court.
State v. Chun, 194
N.J. 54, 65 (2008). Thus, "as a precondition for admissibility of the results of a breathalyzer, the State [is] required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure."
Id. at 134.
The State must "clearly establish" these preconditions to admissibility. Id. at 92. Having deemed the instrument reliable in general, the Court then explained how to determine whether the device was in "proper working order" in a particular case.
Id. at 154. To that end, the State must enter into evidence three core foundational documents, none of which pertain to the temperature measuring device at issue here: (1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; (2) the most recent New Standard Solution Report prior to a defendant's test; and (3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control tests. [Id.]
Calibration of the Alcotest during installation, and periodic re-calibration to ensure good working order, is a core element of proof in the accuracy determination, id. at 134, 153, and thus the
Chun Court has required introduction of the most recent calibration report prior to admitting Alcotest results into evidence.
Id. at 142, 145.
Chun described the calibration process as follows:
Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath.
By exposing the ... mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated. [Id. at 84.]
In its description of the calibration process, the Court did not specifically consider the Ertco–Hart temperature probe. However, the Special Master explained the calibration process in greater detail, Findings and Conclusions of Remand Court, Feb. 13, 2007,
reprinted in 2007
N.J. Lexis 39 (Special Master's Report ), noting that "[t]o measure the temperature of the simulator solution, the [State Police] coordinator uses an Ertco–Hart digital NIST thermometer."
Id. at 139.
Specifically, the calibration process involves the running of several sets of tests, which results in the printing of related reports: the Part I Control Tests, the Part II Linearity Tests, the Solution Change Report and the Calibration Record. Prior to commencing these tests, the testing coordinator will prepare several alcohol solutions. The first is a 0.10% alcohol solution for the control tests. Id. at 45. The others are 0.04%, 0.08% and 0.16% alcohol solutions for the linearity tests.
Id. Each of these solutions must be heated to thirty four degrees Celsius (plus or minus 0.2 degrees), the average range of human breath, which will create vapors that approximate human breath and provide for successful calibration.
Id. at 45, 286. To do so, the coordinator will allow each solution to heat for approximately one hour and then ensure that they have reached the appropriate temperature using an external NIST traceable temperature probe.
Id. at 45, 138–39. Thus, the temperature probe is used to ensure the appropriate temperature of the solutions prior to the commencement of calibration of the Alcotest machine.
Id. at 45–46.
Once the coordinator has determined that the alcohol solutions have reached their appropriate temperatures, the coordinator will begin calibration. Again, neither the Ertco-Hart nor Control Company probe is a part of the Alcotest device—it is used only to determine the temperature of the solutions before they are put into the Alcotest machine. First, the coordinator will gain access to the Alcotest with the coordinator's black key temperature probe and conduct a control test with the 0.10% simulator solution. Id. at 45, 138. If the results of this test are not within the requisite range, the Alcotest will prompt the coordinator to repeat the control test with a new 0.10% simulator solution. If, on the other hand, the results are acceptable, the Part I Control Test certificate is printed. This document records the temperature of the 0.10% simulator solution as measured during the test—separate from the temperature recorded by the coordinator with the Control Company, or Ertco–Hart, probe during pre-calibration preparations.
Chun, supra, 194
N.J. at 105 n.24.
The coordinator will then conduct two linearity tests on each of the three different simulator solutions of 0.04%, 0.08% and 0.16% by again using the coordinator's black key temperature probe.
Special Master's Report, supra, at 45–46. If the results of the linearity tests are not acceptable, the Alcotest is placed out of service. If, on the other hand, the results are acceptable, the Part II Linearity Tests certificate is printed. Also contained on this certificate are the temperatures of the three solutions as measured during the test—again separate from that measured by either the Ertco–Hart or Control Company probe during pre-calibration preparations.
Lastly, the coordinator uses a solution to generate a Solution Change Report, which will complete the calibration test sequence and print a calibration record. Id. at 46.
In order to enable a defendant to challenge the functionality or operability of the device, the State must also disclose in discovery, in addition to the three "core" documents admitted into evidence, certain other "foundational" documents, which "might reveal some possible flaw in the operation of the particular device." Chun, supra, 194
N.J. at 148. The twelve non-core foundational documents, some of which pertain to the accuracy of the temperature probes, consist of: (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration–Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration–Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration–Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco–Hart Digital Temperature Measuring System Report of Calibration, NIST traceability. [Id. at 134–35, 153.]
These documents, including, most notably for present purposes, the Draeger Safety, Ertco–Hart Digital Temperature Measuring System Report of Calibration, NIST traceability "are not fundamentally a part of demonstrating that the particular device was in good working order." Id. at 144–45. Characterized as "tests of tests and, therefore ... too attenuated[,]" they are not essential to establish admissibility.
Id. at 144. Rather, they are produced in discovery to allow a defendant to challenge the "accuracy of the device used and the chemical composition of solutions used to routinely test and calibrate the machine."
Id. at 142, 144 n.47. To that end:
[I]n the event that any defendant perceives of an irregularity in any of these documents that might affect the proper operation of the device in question,
timely issuance of a subpoena will suffice for purposes of protecting that defendant's rights. Were the use of the subpoena power to become routine, we would commend to the parties, with the assistance of our municipal courts, the use of pretrial
de bene esse depositions or video conferencing technology to reduce the burden on the State or any independent testing laboratories. [Id. at 144 n.47 (emphasis added).]
Recently, State v. Holland,
2011 WL 2462991 (App. Div. Apr. 5, 2011), which consolidated two cases where the admissibility of the Alcotest absent the Ertco Hart Calibration records had been contested at the municipal and superior court levels, addressed the question of whether the Alcotest was per se inadmissible absent the Ertco-Hart Calibration Records. In both cases, the State had introduced the "Traceable Certificate of Calibration for Digital Therometer, rather than the Ertco Hart. Not surprisingly, the Appellate Division threw mud in the face of the otherwise clear mandate in
Chun. "We [the Appellate Division] do not read these references [the repeated reference to the Ertco-Hart in the
Chun decision], too strictly or literally as a mandate that only the Ertco-Hart device be used, but rather as a facile means of identifying the temperature probe used to calibrate the Alcotest machine in
Chun and as distinguished from other thermometers employed in the calibration process.
2011 WL 2462991 at 4.
The Court attempted to justify this conclusion by noting that nowhere in Chun or its accompanying order did the Court expressly state that only the Ertco-Hart device, to the exclusion of all others, was acceptable.
Id. The Court went on to claim that
"there is no discussion in Chun of the uniqueness or significance of Ertco–Hart as the manufacturer of the temperature probe, and its only discernable characteristic appears to be certification of NIST traceability, which the Control Company probe also possesses. In other words, the emphasis is on NIST traceability as opposed to brand name. Thus, we conclude that the Ertco–Hart references in
Chun are merely identifiers explaining the necessary firmware modifications and foundational documents required with respect to one temperature probe (the one used to determine the alcohol solution temperatures during the calibration process), separate and apart from the Alcotest machine's internal temperature probe and the coordinator's black key probe."
Id. at 5-6.
Clearly, the Appellate Division placed too much emphasis on what the Supreme Court did not say, rather than what it did say. The Court's jesuitical reasoning of the decision which posits that the Supreme Court's decision not to use express qualifying language was somehow meant to insinuate that the use of other digitial temperature probes, not referenced and not expressly identified, was acceptable is a bold assertion and unsupported assertion. More concerning, is that the decision sidesteps the predicate basis for why the Ertco-Hart is significant and for why the Alcotest is admissible for the purpose of proving Blood Alcohol Content. That is, the Alcotest has been determined to be scientifically reliable. Because the scientific reliability of the Alcotest contemplated calibrating the machine with an Ertco-Hart device, how can the court assume that another calibration device, not subject to any independent evaluation by the court, would not jeopardize the reliability of the Alcotest?
The Court answered this question by impermissibly, and I would argue unconstitutionally, shifting the burden to the defendant. "The State may meet its initial burden to support the admissibility of Alcotest results without reference to the calibration of the temperature probe. Thus, once the State has introduced the core documents into evidence and produced the other foundational documents in discovery, the burden of production shifts to the defendant to show why the machine was not in working order, namely, apropos to the present matters, whether and how the differences in the temperature probes had any impact at all." Holland, supra,
2011 WL 2462991 at 6. Accordingly, as evidenced by the Court's remand, presently if the State introduces a calibration device other than the Ertco-Hart, the same qualifies as foundational document i.e. it is presumed the device is scientifically reliable or in proper working order. This dramatically alters the burden of proof. In essence, it is now the defendant's obligation to establish that the calibration device, one not the subject to the scrutiny of judicial proceeding, was not functioning properly, rather than the State's to prove it was.