N.J. drunken-driving cases on hold
Thousands still have their licenses pending a court ruling on a breath test.
By Troy Graham
Inquirer Staff Writer
For more than a year, most first-time drunken-driving offenders in New Jersey have seen their cases shelved while the state Supreme Court decides whether a new breath-testing device is reliable.
The device, known as the Alcotest, is used by police in 17 of the state's 21 counties, including all of South Jersey.
The Supreme Court said drunken drivers could be prosecuted based on Alcotest evidence. But none of the defendants can be sentenced until the court makes its ruling - probably not until spring.
By most estimates, more than 10,000 drunken drivers are waiting to be sentenced. Meanwhile, those defendants, whose licenses could be suspended for anywhere between three and 12 months, have been allowed to continue driving.
"It sends a very bad message to people who offend," said Teresa Stevens, the state executive director for Mothers Against Drunk Driving in New Jersey. "It says this isn't serious and there are no consequences for a year."
The Alcotest device has been introduced to replace the decades-old Breathalyzer machines. New Jersey was the last state to stop using Breathalyzers.
Pennsylvania certifies police to use a variety of breath-test machines, including Alcotest, but most Pennsylvania authorities test suspects' blood.
In January 2006, when New Jersey's Supreme Court ordered sentencings for drunken drivers to be delayed, 11 counties were using the new machines.
In March, the clerk of the high court issued a letter urging that no more counties begin using Alcotest. Despite that warning, the state Attorney General's Office introduced Alcotest in six more counties in April before agreeing to halt the rollout. The Attorney General's Office said at the time that it had "reconsidered" the clerk's letter.
The high court also appointed a special master, retired Appellate Division Presiding Judge Michael Patrick King, to hold hearings on Alcotest and make recommendations.
His report, compiled after 14 weeks of hearings and 41 days of testimony, is due this week. The Supreme Court then will hold a hearing and issue a ruling.
Winnie Comfort, a spokeswoman for the court, promised that the justices "will proceed very quickly."
A team of eight defense lawyers, led by Cherry Hill's Evan Levow, has challenged Alcotest's reliability in the hearings.
Unlike the creaky Breathalyzers, which had to be set by hand, Alcotest is fully automated. Suspected drunken drivers blow into the device, which is connected to a computer, and it prints out a test result.
Levow acknowledged that "if properly vetted," Alcotest is a "good machine." But, he said, all breath-testing devices have inherent problems and margins of error that need to be taken into account.
"Most people go like lambs to a slaughter. 'Well, the machine says I'm guilty.' This is trial by machine," he said. "The way it stands now, it's a farce, and people are getting convicted on this."
One problem with Alcotest, Levow said, is that it runs on a computer program that the manufacturer, Draeger Safety Diagnostics Inc., has refused to share.
"The answer from Draeger and the state has always been, 'Trust us, it works.' Well, we don't," he said. "Science disfavors the black-box testing... . It has to be an open process. You're convicting people on what gets spit out of this black box."
The device also has to make certain physiological assumptions - such as the temperature of a person's breath - which Levow said could be wrong or vary depending on the individual.
Even the manufacturers agreed during King's hearings that the machine had a margin of error, Levow said.
"If you blow a 0.084, it could be as high as a 0.089 or as low as a 0.079. You're actually not guilty of the per se offense," he said. "We're not saying do away with breath testing. We're saying you have to account for this margin of error."
In New Jersey, drivers are considered drunk if a breath test registers a blood-alcohol level of 0.08 percent or higher.
Jeffrey Schreiber, an attorney for Draeger, said last week that he couldn't comment without permission from his client. He said he would seek that permission but did not return subsequent phone calls.
Levow said New Jersey had bought more than 600 Alcotest devices for between $9,000 and $13,000 each. Several other states use the machine, but it is most widely used in Alabama and Massachusetts, he said.
Alcotest has faced a similar court challenge in Massachusetts, but Levow said Alabama had a sophisticated and praiseworthy system for using the device.
The New Jersey Attorney General's Office would not comment pending King's report, but supplied a legal brief filed with King last month. The state argues that Alcotest is "accurate and reliable" and meets "the standard of general acceptance in the scientific community."
MADD's Stevens also hopes the court accepts Alcotest.
"It's much better than the Breathalyzer," she said. "It eliminates user error."
Jeffrey E. Gold, a Cherry Hill lawyer who represented the New Jersey State Bar Association in the Alcotest hearings, said there was a middle ground.
"The defense case was based on any breath testing is unreliable. And they're probably right, but every state in the nation uses it," he said. He added that New Jersey courts "are going to use it, but the question is what machine and with what controls."
Gold said the Supreme Court should force the state to install an optional sensor on the Alcotest devices that accounts for varying breath temperatures. He said the court also should recognize the margin of error, meaning a driver would have to register a 0.084 to be guilty of drunken driving.
"I'm much more concerned about the margin of error," Gold said. "Nothing is sacrosanct. There's no machine in the world that if it says it's a 0.08, it's a 0.08."
Gold also said the long delay in resolving the issue was "ridiculous, quite frankly."
"If someone is convicted of DWI, they should lose their license," he said. "It shouldn't take a year."
But Levow said he worried that the pressure of all the pending cases could influence the court's ruling.
"My concern is that the result will be politically motivated," Levow said. "Because there are so many pending DWI convictions based on this machine that the court will certify the machine without being assured in any way that the computer program is accurate."