State v. Chun 194 NJ 54 Supreme Court 7110 Alcotest Decision

State v. Jane H. Chun, et al. (A-96-06)
Argued April 5, 2007
Re-argued January 7, 2008 –- Decided March 17, 2008
HOENS, J., writing for the Court.
In this case, the Court addresses the scientific reliability of the Alcotest 7110 MKIII-C evidentiary breath-
testing device (Alcotest) and considers the admissibility of the Alcohol Influence Reports (AIRs) that it generates
for the prosecution of defendants under New Jersey drunk driving laws.
Defendants are twenty individuals charged with driving while intoxicated, N.J.S.A. 39:4-50, in Middlesex
County, who challenged the admissibility of Alcotest results in their individual proceedings. The Law Division
consolidated the cases to consider the reliability of the device. The State filed a motion requesting that the device be
recognized as scientifically reliable. The Law Division denied that motion, and the State filed an interlocutory
appeal. The Appellate Division remanded the matter, but before that proceeding could continue, the Court directly
certified the appeal pursuant to Rule 2:12-1 on December 14, 2005.
The Court remanded the case to retired Appellate Division Judge Michael Patrick King, sitting as a Special
Master, to conduct a hearing on the overall scientific reliability of the Alcotest. Following four months of
testimony, the Special Master issued a report on February 13, 2007. He concluded that the device was scientifically
reliable, conditioned on specific modifications and recommendations. After that report was issued, but before oral
arguments were heard, the manufacturer of the device, Draeger Safety Diagnostics (Draeger), moved for leave to
intervene, which motion the Court granted on March 27, 2007. Following oral arguments, the Court again remanded
the matter to the Special Master, this time to afford defendants an opportunity, following Draeger’s intervention, to
examine the source code that comprises the Alcotest software. After receipt of experts’ reports and further
testimony, the Special Master issued a supplemental report on November 8, 2007, in which he affirmed his original
finding of scientific reliability, contingent on several additional recommendations. Thereafter, the Court conducted
a second round of oral arguments.
Three distinct sets of challenges were raised regarding the use of Alcotest results in drunk driving
prosecutions. The first set of challenges related to how the machine measures a suspect’s blood alcohol
concentration (BAC). It was contested whether: (1) the Alcotest’s use of a 2100 to 1 blood/breath ratio is unreliable
because it overestimates the actual BAC of some individuals; (2) to avoid equal protection issues, all suspects,
instead of just women over the age of sixty, should be held to a minimum breath sample volume requirement of 1.2
liters of air; (3) a breath temperature sensor is necessary because the machine may overestimate the BAC of exhaled
breath above a certain temperature; (4) the machine’s tolerance, which is the deviation range within which test
measurements must fall to constitute a reliable result, is acceptable.
The next set of challenges related to the Alcotest’s programming and source code. Defendants argued that:
(1) the use of an algorithm to compensate for the depletion or “drift” of fuel cells artificially inflates results; (2) the
use of a “weighted averaging” algorithm, which places greater weight on later breath measurements than earlier
ones, also serves to artificially inflate results; (3) a buffer overflow error undermines the reliability of Alcotest
results in certain circumstances; (4) the lack of catastrophic error detection within the device undermines the
reliability of its results; and (5) the overall programming style fails to follow any design standard, and is so flawed
that it can not be relied on to produce accurate results.
The third set of challenges related to the admissibility of Alcotest results and foundational documents as
potentially violating Sixth Amendment rights under Crawford v. Washington.
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HELD: The Court adopts, as modified, the Special Master’s reports and recommendations. Subject to certain
conditions, the Court holds that the Alcotest is scientifically reliable and that its results are admissible in drunk
driving prosecutions. The Court contemporaneously issues an Order vacating its January 10, 2006, stay of drunk
driving prosecutions, appeals, and sentencing, which shall proceed in accordance with the directives set forth
therein.
1.
There is sufficient credible evidence to support the continued use of a 2100 to 1 blood/breath alcohol ratio
to estimate BAC from a breath sample. The overwhelming evidence demonstrates that use of this ratio tends to
underestimate the actual BAC in the vast majority of persons whose breath is tested. Although there may be a small
number of individuals who are disadvantaged by a device that uses the 2100 to 1 blood/breath ratio, there is sound
scientific support for its continued utilization. (pp. 49-52)
2.
The four criteria used by the device to identify a valid breath sample are, with one modification,
appropriate. The Court adopts the recommendation that the minimum breath volume requirement should be
lowered, for women over sixty years of age only, from 1.5 liters to 1.2 liters and concludes that this modification
does not violate equal protection rights. Regardless of minimum breath requirements, no test will be accepted by the
machine until the infrared measurement plateaus, which only occurs when a suspect is expelling deep lung air.
Further, while selectively lowering the breath volume requirement will create a different level at which women over
sixty may be charged with refusal, the record demonstrates that this group, and only this group, may not have the
physiological capability of providing a larger sample. In pending prosecutions, and in future prosecutions based on
tests conducted prior to the implementation of the Court’s directives, an Alcotest AIR with an insufficient volume
error message may not be used as evidence of refusal against women over the age of sixty, unless they also provided
another sample of at least 1.5 liters. (pp. 52-65)
3.
The Court declines to adopt the recommendation that a breath temperature sensor be added to the Alcotest,
concluding that this device is both unnecessary and impractical. The record includes scant evidence of a correlation
between breath temperature and increased breath alcohol concentration, and no evidence that the theoretical increase
in breath alcohol concentration would translate into an inaccurately elevated BAC. Further, any potential effect is
ameliorated by the 2100 to 1 blood/breath ratio and by use of truncated, rather than rounded, results, both of which
serve to underestimate results. Requiring the addition of a breath temperature sensor would also present an
unreasonable maintenance burden on New Jersey’s breath testing program. (pp. 65-71)
4.
A tolerance range of an absolute 0.01 percent (plus or minus 0.005 percent from the mean) BAC standard,
coupled with the use of a like percentage range of tolerance expressed as five percent plus or minus deviation from
the mean, is both scientifically appropriate and consistent with the intention of the Legislature in adopting per se
limits. The device must therefore be reprogrammed to comply with this standard. In pending prosecutions, and in
future prosecutions based on tests conducted prior to the implementation of the Court’s directives, in which the AIR
reports a BAC obtained using a doubled tolerance range, the reported breath samples must be reviewed to determine
whether the results meet this tolerance range. Any AIR that does not include two valid tests within tolerance under
this standard cannot be deemed to be sufficiently scientifically reliable to be admissible and shall not be admitted
into evidence as proof of a per se violation. (pp. 71-88)
5.
The Alcotest’s use of the fuel cell “drift” algorithm does not undermine its reliability. Scientific evidence
demonstrates that fuel cells begin to age as soon as they are put into service, and will eventually cause the Alcotest’s
electric chemical test to underestimate BAC. While there may be other means to compensate for this “drift,” those
means would not, in the end, be any more advantageous to defendants than the minor upward adjustment that the
algorithm effects. However, the Court adopts the Special Master’s recommendation that the devices be recalibrated
semi-annually instead of annually. A semi-annual calibration is consistent with the manufacturer’s
recommendations and provides a useful safeguard by affording a more regular opportunity to evaluate and replace
aging fuel cells. (pp. 89-95)
6.
The Court concludes that the Alcotest’s “weighted averaging” algorithm is an appropriate calculation that
results in a more accurate infrared measurement. It gives greater weight to the breath that, inevitably, includes the
deepest air drawn from the lungs. It therefore focuses the analysis on the portion of the breath sample that most
accurately represents the subject’s BAC. (pp. 95-96)
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7.
The buffer overflow error is a real error in the programming that may cause the Alcotest to report incorrect
results in situations involving a third breath sample, which is taken only when the measurements from the first two
tests are not in tolerance. The buffer overflow programming error, which must be corrected, affects only the final
BAC result reported on the AIR. Because the infrared and electric chemical measurements for all of the test
samples are accurately reported on the AIR, the correct BAC value can, and must, be computed from those
measurements by applying a corrective formula. In pending prosecutions, and in future prosecutions based on tests
conducted prior to the implementation of the Court’s directives, the State must review all AIRs that include three
tests, perform the calculations to identify the correct BAC in accordance with the corrective formula, and provide
that data to the court. The calculations must be made a part of the evidence in any prosecution to facilitate appellate
review. (pp. 96-102)
8.
The Court finds adequate support in the record that catastrophic error detection should be re-enabled in the
Alcotest. This detection will allow the machine to recognize catastrophic errors and respond by shutting down.
There is no basis for the Court to conclude that the lack of catastrophic error detection could result in an inaccurate
AIR in any pending prosecution. (pp. 102-103)
9.
The Court finds the overall programming style and design of the source code to be acceptable. The
exhaustive review undertaken in this case revealed few actual errors or issues within the source code. There being
no evidence in the record that any other asserted shortcomings are more than stylistic or theoretical challenges, the
Court declines to require any specific programming standards at this time. (pp. 104-105)
10.
In future revisions to the Alcotest software, the State must: have the Alcotest software locked so that only
the manufacturer can make revisions to the source code; have the software revised so that the Alcotest identifies and
prints the software version that it is utilizing on each AIR; and give detailed notice consistent with due process to the
public and the New Jersey State Bar Association of any future revisions. (pp. 105-107)
11.
Draeger must make Alcotest training, comparable to that provided to the State, available to licensed New
Jersey attorneys and their experts at reasonable times and locations within New Jersey and at a reasonable cost. (p.
108)
12.
The twelve foundational documents identified by the Special Master must be provided during discovery in
all matters. The operator of the device shall be available to testify and shall produce evidence of his qualifications to
operate the device. The following foundational documents, evidencing the good working order of the machine, shall
be admitted into evidence in prosecutions based on Alcotest breath testing results: the most recent calibration
report, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
the most recent new standard solution report prior to a defendant’s test; and the certificate of analysis of the 0.10
simulator solution used in a defendant’s control tests. These foundational documents are not “testimonial,” as
defined by the United States Supreme Court in Crawford v. Washington and its progeny. In so holding, the Court
aligns itself with the majority of other courts, which have found that such documents are business records, which do
not implicate the Confrontation Clause. (pp. 108-125)
13.
The AIR itself, a “statement” of a machine, is not testimonial under Crawford because it does not implicate
Crawford’s core concerns -- it is not a report of a past event, given in response to police interrogation, with the
purpose of establishing evidence that a defendant committed an offense. Although the AIR is not testimonial
evidence, the Court nevertheless mandates various safeguards to protect a defendant’s due process rights: the
opportunity to cross-examine the operator of the Alcotest, the routine production of all foundational documents in
discovery, and the admission of the core foundational documents into evidence at trial. (pp. 125-130)
The findings and conclusions of the Court's Special Master are ADOPTED, as MODIFIED. The matters
involved in these consolidated proceedings are REMANDED to the Law Division for further proceedings consistent
with this opinion and the accompanying Order.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE
HOENS’ opinion. CHIEF JUSTICE RABNER did not participate.
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SUPREME COURT OF NEW JERSEY
A-96 September Term 2006
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JANE H. CHUN, DARIA L. DE
CICCO, JAMES R. HAUSLER,
ANGEL MIRALDA, JEFFREY R.
WOOD, ANTHONY ANZANO, RAJ
DESAI, PETER LIEBERWIRTH,
JEFFREY LING, HUSSAIN NAWAZ,
FREDERICK OGBUTOR, PETER
PIASECKI, LARA SLATER,
CHRISTOPHER SALKOWITZ, ELINA
TIRADO, DAVID WALKER, DAVID
WHITMAN and JAIRO J. YATACO,
Defendants-Respondents,
and
MEHMET DEMIRELLI and JEFFREY
LOCASTRO,
Defendant,
and
DRAEGER SAFETY DIAGNOSTICS,
INC.,
Intervenor.
Argued April 5, 2007 -– Remanded April 30, 2007
Master’s Report filed -- November 8, 2007
Re-argued January 7, 2008 – Decided March 17, 2008
On certification to the Superior Court, Law
Division, Middlesex County.
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Boris Moczula, Assistant Attorney General,
argued the cause for appellant (Anne
Milgram, Attorney General of New Jersey,
attorney; Mr. Moczula, Jessica S. Oppenheim,
Assistant Attorney General, Christine A.
Hoffman and John J. Dell’Aquilo, Jr., Deputy
Attorneys General, of counsel; Mr. Moczula,
Ms. Oppenheim, Ms. Hoffman, Mr. Dell’Aquilo,
Stephen H. Monson and Robert T. Lougy,
Deputy Attorneys General, on the briefs).
Jeffrey Schreiber argued the cause for
intervenor (Meister Seelig & Fein,
attorneys; Mr. Schreiber and Adena S.
Edwards, on the briefs).
Matthew W. Reisig, Samuel Louis Sachs, Evan
M. Levow and John Menzel argued the cause
for respondents (Mr. Reisig, attorney for
Raj Desai, Peter Lieberwirth, Peter Piasecki
and Christopher Salkowitz; Mr. Sachs,
attorney for James R. Hausler and Jeffrey R.
Wood; Levow and Associates and Andrew S.
Maze, attorneys for Jane H. Chun; Levow and
Associates, attorneys for Angel Miralda,
Frederick Ogbutor, Lara Slater and Elina
Tirado; Mr. Menzel, attorney for Anthony
Anzano, Jeffrey Ling, Hussain Nawaz, David
Walker and David Whitman; Garces & Grabler,
attorneys for Angel Miralda and Jairo J.
Yataco; Bartholomew Baffuto, attorney for
Daria L. DeCicco; Mr. Reisig, Mr. Sachs, Mr.
Levow, Mr. Menzel, Mr. Baffuto, Jonathan A.
Kessous, and Christopher G. Hewitt, on the
briefs).
Peter H. Lederman argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Lomurro,
Davison, Eastman & Munoz, attorneys; Mr.
Lederman and Andrew T. McDonald, on the
brief).
Jeffrey Evan Gold argued the cause for
amicus curiae New Jersey State Bar
Association (Lynn Fontaine Newsome,
President, attorney; Ms. Newsome, Mr. Gold,
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Wayne J. Positan, Former President and
Arnold N. Fishman, on the briefs).
JUSTICE HOENS delivered the opinion of the Court.
TABLE OF CONTENTS
INTRODUCTION................................................... 4
I. Facts and Procedural History................................ 6
A. Certification to this Court ............................... 8
B. Remand Hearings .......................................... 10
II. Legislative Framework..................................... 14
III. How the Alcotest Works................................... 20
A. Scientific and Physiological Framework ................... 20
1.
Alcohol and Blood .................................... 21
2.
Alcohol and Breath ................................... 22
3.
Differences Between Blood and Breath Tests ........... 23
B. Operation of the Alcotest ................................ 24
C. Test Administration and the Alcohol Influence Report ..... 26
IV. Findings of the Special Master............................ 34
A. Initial Report ........................................... 34
B. Draeger’s Role in the Proceedings ........................ 37
C. Source Code Remand ....................................... 39
V. Uncontested Issues......................................... 40
VI. Standards of Review....................................... 43
VII. Defendants’ Challenges to Scientific Reliability......... 46
VIII. Disputed Findings and Recommendations................... 47
A. Blood/Breath Ratio ...................................... 49
B.
Minimum Test Sample Criteria ........................... 52
1. Scientific Data Concerning Breath Volume .............. 54
2. Equal Protection and Lowered Breath Volume Requirement 58
3. Application to Pending Prosecutions .................... 64
C. Breath Temperature Sensor ................................ 65
D. Acceptable Tolerance Analysis ........................... 71
1. Doubled Tolerance Range in Firmware version 3.11 ....... 72
2. Expert Testimony ....................................... 78
3. Future Firmware Revisions .............................. 80
4. Application to Pending Prosecutions .................... 82
IX. Source Code Remand........................................ 88
A. EC Readings and Fuel Cell Drift Algorithm ............... 89
B.
Weighted Averaging Algorithm ........................... 95
C. Buffer Overflow Error .................................. 96
D.
Catastrophic Error Detection .......................... 102
E.
Overall Firmware Reliability .......................... 104
X. Additional Firmware Recommendations....................... 105
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XI. Requirements Prior to the Admissibility of Alcotest Evidence
............................................................. 108
A. Confrontation Clause Implications ....................... 112
B. Application of Crawford v. Washington ................... 116
1. Operator’s Qualifications ............................ 117
2. Foundational Documents ............................... 120
3. Alcohol Influence Report Admissibility ............... 125
XII. Conclusion.............................................. 130
INTRODUCTION
For decades, this Court has recognized that certain breath
testing devices, commonly known as breathalyzers, are
scientifically reliable and accurate instruments for determining
blood alcohol concentration (BAC)
1
and that drivers whose
breathalyzer test results demonstrate the requisite statutorily-
imposed BAC are guilty per se of driving while intoxicated
(DWI). Although the Legislature has from time to time reduced
the permissible BAC limits and has altered the penalties for
this offense, and although we have required foundational proofs
relating to the operation of the breathalyzer device as a
precondition for admission of the breathalyzer test results into
evidence, the accuracy and reliability of the breathalyzer
itself has remained essentially unquestioned since our decision
in Romano v. Kimmelman, 96 N.J. 66 (1984).
1
Although the statute fixes limits in terms of BAC, violations
of the statute have been proven routinely through analysis of
breath and a conversion of breath alcohol concentration (BrAC)
into a BAC reading. See Sections III.A. and VIII.A., infra.
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Nevertheless, in the intervening years, the devices have
become technologically outdated, with the result that
replacement parts are no longer available and the machines
themselves, when they fail, cannot be repaired or replaced with
like equipment. Faced with an increasingly difficult situation,
the Attorney General’s office began to consider alternate
devices to use for breath-testing purposes. That process led to
the decision by the Attorney General to select the Alcotest 7110
MKIII-C (the Alcotest).
2
Following its introduction into service
in a pilot program in Pennsauken, the use of the Alcotest has
been expanded to all but four of our counties. Its use and its
capabilities, as a means to analyze breath samples with
sufficient accuracy so that the results will be admissible into
evidence to support a conviction, withstood an initial challenge
arising from the Pennsauken program. Thereafter, the continued
expansion of use of the Alcotest around the state resulted in a
further challenge to its scientific reliability, which has been
the essential focus of our inquiry here.
In our effort to analyze the reliability of the Alcotest,
we have not only considered the questions concerning the
2
Throughout this opinion, we will refer to the Alcotest without
specifying further the model number and we will generally refer
to the firmware without designating the version utilized except
in instances where the designation is important for clarity. We
intend to make no comments about other models of the device or
about the software used to operate any other Alcotest model.
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scientific challenges to the machine, but we have also
considered the underlying constitutional questions about the
permissibility of its use in the context of a per se violation
of the statute based solely on the results it reports, together
with such safeguards and foundational requirements that will
allow its admissibility in a DWI prosecution. We have been
aided enormously in this task by the efforts of the Special
Master for his analysis of the voluminous record created during
the extended proceedings on remand.
In summary, we conclude that the Alcotest, utilizing New
Jersey Firmware version 3.11, is generally scientifically
reliable, but that certain modifications are required in order
to permit its results to be admissible or to allow it to be
utilized to prove a per se violation of the statute. Some of
these conditions upon admissibility we impose as a matter of
constitutional imperative, others as a matter of addressing
certain of the device’s mechanical and technical shortcomings
that were revealed during the proceedings on remand. Within the
framework for admissibility that we here establish, pending
prosecutions should be able to proceed in an orderly and uniform
fashion.
I. Facts and Procedural History
The matters that we have been called upon to consider are
both many and varied; even among those issues on which the
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parties agree, we are required to create mechanisms for
addressing the uses of Alcotest results generated in
prosecutions undertaken prior to this analysis.
The Alcotest is a breath-testing device,
3
manufactured and
marketed by Draeger Safety Diagnostics Inc. (Draeger), which was
first utilized in New Jersey as part of a pilot project in
Pennsauken. The admissibility of the results derived from
breath testing by this device was first challenged in 2003. See
State v. Foley, 370 N.J. Super. 341 (Law Div. 2003). In a
published decision addressing that challenge, the Law Division
judge concluded that the device was generally scientifically
reliable and that the BAC readings it generates are therefore
admissible as proof of a per se violation of the drunk driving
statute. Id. at 345.
Following the decision in Foley, the State expanded the use
of the device to other municipalities, including county-wide
utilization in Middlesex County. At the same time, in
cooperation with State Police personnel charged with overseeing
the device’s implementation, see N.J.A.C. 13:51-3.2, the
manufacturer created revised software for use in the device.
4
3
To the extent that the technical manner in which the device
operates is germane to our analysis, we set it forth in Section
III.B., infra.
4
The technical alterations in the software, referred to as
firmware, some of which are significant to our evaluation of the
device, are explained in Section VIII.D.1, infra.
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A. Certification to this Court
Defendants are twenty individuals who were arrested in
various municipalities in Middlesex County and were charged with
driving while intoxicated, see N.J.S.A. 39:4-50. Each of these
defendants challenged the admissibility of results from the
Alcotest in their respective proceedings. The Law Division
consolidated all of these matters for consideration of the
challenge to the Alcotest. In response, the State filed a
motion seeking to have the court recognize the Foley opinion as
binding authority and apply its findings about the scientific
reliability of the device to all pending prosecutions. The Law
Division denied that motion and stayed all DWI-related cases
involving the Alcotest that were then pending in Middlesex
County.
The Appellate Division granted the State’s motion for leave
to appeal and remanded the matter to the Law Division for a
hearing regarding the admissibility of Alcotest results. Before
that hearing could proceed, this Court certified the pending
appeal pursuant to Rule 2:12-1, vacated the remand to the trial
court, and instead remanded the case to a Special Master,
retired Appellate Division Presiding Judge Michael Patrick King.
The Court ordered the Special Master to:
1. Conduct a plenary hearing on the reliability of
Alcotest breath test instruments, including
consideration of the pertinent portions of the record
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in State v. Foley, 370 N.J. Super. 341 (Law Div.
2003), and the within matters in the Superior Court,
Law Division, Middlesex County, together with such
additional expert testimony and arguments as may be
presented by the parties;
2. Determine whether the testimony presented by the
parties should be supplemented by that of independent
experts selected by the Special Master;
3. Grant, in the Special Master’s discretion,
motions by appropriate entities seeking to participate
as amici curiae, said motions to be filed with the
Special Master within ten days of the filing date of
this Order;
4. Invite, in the Special Master’s discretion, the
participation of entities or persons as amici curiae
or, to the extent necessary in the interests of
justice, as intervenors to assist the Special Master
in the resolution of the issues before him; and
5. Within thirty days of the completion of the
plenary hearing, file findings and conclusions with
the Clerk of the Court and contemporaneously serve a
copy on the parties and amici curiae, which service
may be effectuated by the posting of the report on the
Judiciary’s website.
Although we also vacated the Law Division’s stay of all
drunk driving cases then pending in Middlesex County, we
subsequently created a distinction among pending prosecutions
based upon the proofs and the status of the charged individuals.
Our January 10, 2006 Order therefore directed that all drunk
driving prosecutions, see N.J.S.A. 39:4-50, that did not involve
an Alcotest, and all cases of repeat offenders, should proceed
normally. As to repeat offenders who were thereafter found
guilty, we directed that the sentences to be imposed on those
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defendants would be stayed only if the conviction were based on
the Alcotest results alone. We ordered that first-offender
cases involving the Alcotest be tried “based on clinical
evidence when available, including but not limited to objective
observational evidence, as well as the relevant Alcotest
readings.” We further ordered that if a court found that a
first offender was guilty, it was required to articulate, if
possible, the alternate bases for the finding. We stayed the
execution of all first offenders’ sentences pending resolution
of this matter, except where public interest required otherwise,
and stayed all further requests for Alcotest reliability
hearings. Finally, we reiterated our earlier Order authorizing
conditional guilty pleas, see R. 7:6-2(c), with a reservation of
the right to appeal in the event that we concluded that the
Alcotest is not reliable.
The Association of Criminal Defense Lawyers of New Jersey
(ACDL) and the New Jersey State Bar Association (NJSBA) were
subsequently permitted to participate as amici curiae in all of
the remand and appellate proceedings.
B. Remand Hearings
Shortly after being appointed to serve, the Special Master
issued a discovery order directing the State to provide
defendants with certain technical information concerning the
operation of the Alcotest device, followed by an order directing
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the State to make several Alcotest machines available to
defendants and the NJSBA. In large part, the ensuing dispute
about the disclosure of the software used to operate the device,
called firmware, and the source codes needed for an analysis of
that software, caused significant disruption in the orderly
completion of the proceedings and eventually led to our further
remand for additional proceedings.
In short, however, the Special Master was advised that
Draeger considered the software and the source code to be
proprietary information and would not disclose it. He proposed
that counsel enter into a standard protective order and invited
Draeger, which was not then a party, to intervene in the
proceedings. Draeger declined the Special Master’s invitation
to intervene. At the same time, Draeger refused to permit the
parties to review the software except under extremely limited
conditions and refused to disclose the source code under any
circumstances. As a result of this impasse, the Special Master
concluded that he could utilize an adverse inference as to the
reliability of the device, but he proceeded with the hearings in
the absence of any participation by Draeger. Near the end of
the initial hearings, defendants and Draeger entered into a
letter agreement, which would have permitted defendants to
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evaluate future changes to the software in the event that the
Alcotest was found to be scientifically reliable.
5
Following hearings that spanned four months, the Special
Master issued his findings and conclusions, embodied in a report
to this Court dated February 13, 2007. In that report, the
details of which we address in Section IV.A., infra, the Special
Master concluded that the Alcotest is generally scientifically
reliable, but he recommended that several changes be
incorporated both prospectively and with respect to pending
matters. Thereafter, but prior to the time when we received
briefs on the merits and entertained oral argument, Draeger
moved for leave to intervene before this Court, which motion we
granted.
After the initial oral arguments on April 5, 2007,
including those offered by Draeger, we remanded the matter to
the Special Master again to allow defendants an opportunity to
conduct the analysis of the source code that they had contended
was essential to an accurate determination of the reliability of
the device. State v. Chun, 191 N.J. 308, 309 (2007). In doing
so, we directed that the review be undertaken by an independent
software house, to be agreed upon by Draeger and defendants, in
5
In some respects, the parties disagree about the continued need
for and viability of the agreement, which they referred to as
Addendum A. We address future testing of software revisions
further below, see Section X, infra.
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order to preserve Draeger’s proprietary interests. Id. at 309-
10.
The parties, however, were unable to agree on an
independent software house that would conduct the source code
analysis. Although our order authorized the Special Master in
that event to make the selection, he believed he was not well
equipped to choose and he so advised us. Therefore, this Court
issued a supplemental order allowing each of the parties, at its
own expense, to designate an independent software house to
review the source code. The supplemental order also provided
that the Special Master, at his discretion, could conduct
further hearings following his receipt and review of the expert
reports.
Draeger and defendants each designated a software house to
analyze the source code and report on its reliability. Because
the reports reached different conclusions, the Special Master
scheduled further hearings. After ten additional days of
testimony and two days devoted to summations, the hearings were
completed on October 24, 2007. The Special Master submitted his
Supplemental Findings and Conclusions to this Court on November
8, 2007. He concluded, in summary, that the source code
analysis did not alter his original opinion that the Alcotest is
scientifically reliable, as to both its hardware and software
elements. However, he conditioned this conclusion on additional
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recommendations, which supplemented those contained in the
initial report.
II. Legislative Framework
Our analysis of the issues surrounding the scientific
reliability of the Alcotest device and our consideration of the
Special Master’s recommendations must begin with an
understanding of the legislative framework that bears upon drunk
driving prosecutions. We turn, then, to an explanation of the
statutes governing the offenses that we generally refer to as
drunk driving, together with an analysis of the relevant
legislative history that bears on the issues before us.
The Legislature has established that an individual is
guilty of driving while intoxicated if he or she "operates a
motor vehicle with a blood alcohol concentration of [0].08
[percent] or more by weight of alcohol in [his or her] blood."
N.J.S.A. 39:4-50(a). For first offenders who have a BAC that is
0.10 percent or greater, harsher penalties and higher fines
apply. See N.J.S.A. 39:4-50(a)(1). Subsequent offenses, as
measured by the 0.08 percent standard, are treated with
increasingly harsh penalties, including not only longer periods
of license suspension, but incarceration as well. See N.J.S.A.
39:4-50(a)(2), -50(a)(3).
As we have previously found, the primary purpose behind our
drunk driving laws is to remove intoxicated drivers from our
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15
roadways and thereby “to curb the senseless havoc and
destruction” caused by them. State v. Tischio, 107 N.J. 504,
512 (1987). We have consistently construed these laws both
broadly and pragmatically to ensure that the Legislature’s
intent is effectuated. See id. at 513; State v. Mulcahy, 107
N.J. 467, 479 (1987) (concluding that turning on ignition is not
required for finding that person behind the wheel was in control
of and intended to operate vehicle); State v. Wright, 107 N.J.
488, 497 (1987) (concluding that predicate of actual operation
of vehicle is not required for request that individual undergo
breathalyzer testing).
As part of the effort to rid our roads of drunk drivers,
the Legislature has sought over time to streamline the process
by which those charged with DWI offenses are efficiently and
successfully prosecuted. See Tischio, supra, 107 N.J. at 514.
Our current laws, as a result, can only be interpreted correctly
if they are viewed in the context of this continuing evolution.
Our analysis begins in 1951, when, in order to address
growing difficulties and confusion surrounding the evidentiary
burden for establishing operation of a vehicle “under the
influence,” the Legislature enacted N.J.S.A. 39:4-50.1.
Tischio, supra, 107 N.J. at 514-15; see also State v.
Protokowicz, 55 N.J. Super. 598, 603 (App. Div. 1959). This
statute provided that a 0.15 percent blood-alcohol level gave
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16
rise to a presumption of intoxication for purposes of a driving
under the influence prosecution. Tischio, supra, 107 N.J. at
515. A blood-alcohol level below 0.05 percent gave rise to a
presumption of non-intoxication, and a level between the two
gave rise to no presumption. Id. at 515 n.3. These legislative
presumptions were targeted at reducing the evidence,
specifically expert and other testimony, which was otherwise
needed to prove intoxication and convict a drunk driver. Id. at
515.
At that time, New Jersey’s 0.15 percent standard was the
most permissive in the country, see id. at 515-16 (citing Motor
Vehicle Study Commission, Report to the Senate and the General
Assembly of 1975 (hereinafter “Report”), at 135), although the
penalties imposed were “among the most stringent.” Id. at 515,
515 n.4. Nevertheless, studies revealed that most drivers were
impaired at BAC levels significantly lower than the statutory
presumption employed in the 1951 statute. Id. at 516 (citing
Report, supra, at 141-42). As a result, the Legislature amended
N.J.S.A. 39:4-50.1, in 1977, see L. 1977, c. 29, to lower the
presumptive BAC for intoxication purposes from 0.15 to 0.10
percent. Tischio, supra, 107 N.J. at 516.
In 1983, the Legislature again amended the drunk driving
statutes to take into account “mounting scientific findings,” to
the effect that almost all drivers suffered reduced driving
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17
ability at a BAC of 0.10 percent. Ibid. At the same time, the
amended statute brought the state into compliance with minimum
federal grant standards. L. 1983, c. 129; Assembly Judiciary,
Law, Public Safety & Defense Committee, Statement to Assembly
Committee Substitute for Senate Bill No. 1833 (Feb. 14, 1983).
Significantly, the amended version of N.J.S.A. 39:4-50 provided
that a 0.10 percent BAC level constituted a per se offense,
instead of simply giving rise to a presumption.
6
In 1990, the New Jersey Commercial Driver License Act was
enacted. L. 1990, c. 103. It created an even more stringent
standard to be applied to drivers of commercial vehicles. It
provides a penalty, in addition to any other applicable
penalties, of a one to three-year commercial license suspension
for commercial drivers caught driving with a BAC level of 0.04
percent or greater. N.J.S.A. 39:3-10.13, -10.20(a)(1). The
0.04 percent BAC standard for commercial drivers was enacted
both to comply with the federal standard in the Commercial Motor
Vehicle Safety Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207
(1986) (codified at 49 U.S.C.A. § 31310), and in recognition of
the fact that significant impairment occurred well below the
otherwise applicable 0.10 percent BAC levels. See L. 1990, c.
6
This change essentially engulfed the rule provided in N.J.S.A.
39:4-50.1, which nonetheless remained in the statutes until
1990, when it was repealed by L. 1990, c. 103, § 38.
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18
103; Assembly Appropriations Committee, Statement to Assembly
Bill No. 3258, at 23 (Oct. 1, 1990).
In 1992, the Legislature enacted an additional drunk
driving prohibition by creating a new per se offense, which
applies to drivers who are under the legal drinking age. L.
1992, c. 189. This most recently-added tier provides that any
person under the age of twenty-one who is caught driving with a
BAC level above 0.01 percent faces a thirty to ninety-day
license suspension, in addition to community service
requirements. See N.J.S.A. 39:4-50.14. The statement attached
to the legislation explained that the bill was intended to
establish penalties for any driver under the age of twenty-one
who is “found to have consumed an alcoholic beverage.” L. 1992,
c. 189; Assembly Judiciary, Law & Public Safety Committee,
Statement to Assembly Committee Substitute for Assembly Nos.
1447 & 1426 (June 1, 1992). The purpose of the enactment was
two-fold: “to deter younger drivers from drinking and driving,
and to establish an early detection and treatment program for
young people . . . .” Anthony Impreveduto, et al., Statement to
Assembly No. 1426 (May 14, 1992).
In 2003, the per se violation set forth in the statute was
further reduced. In order to comply with federal highway
funding requirements, the statutory standard of 0.10 percent BAC
was reduced to 0.08 percent BAC. L. 2003, c. 314. At the same
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19
time, the amendment created two separate, graduated penalties
relevant to prosecution for a first offense. As a result of
this legislative enactment, first time offenders with a BAC
level between 0.08 percent and 0.10 percent are subject to a
three-month license suspension, but first time offenders with a
BAC level of 0.10 percent or greater are subject to a seven to
twelve-month license suspension. Ibid.
In addition, throughout this time, penalties for second and
third offenders have become increasingly harsh. See, e.g., L.
1995, c. 286 (registration revocation); L. 1999, c. 417
(ignition interlock device installation); L. 2003, c. 315
(Michael’s Law; imposing mandatory jail time or inpatient
rehabilitation program time for a third or subsequent
violation); L. 2004, c. 8 (increasing penalties for refusal to
submit to breath test).
Although when considered together, these statutory
enactments make plain the Legislature’s view that drunk driving
is not to be tolerated, the relationship between this
increasingly restrictive legislative scheme and the new
technology of the Alcotest, as compared to the breathalyzer,
requires us to re-examine much of our earlier jurisprudence as
part of our consideration of the issues raised in this appeal.
In virtually all of these statutes, the Legislature has
utilized blood alcohol concentration, not breath alcohol
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20
concentration, as its standard measure.
7
Both the breathalyzer
and the Alcotest, however, test breath samples and convert that
analysis by mathematical calculations to an expression of the
subject’s presumed blood alcohol concentration. The principle
question, then, is whether the Alcotest does so with sufficient
accuracy and reliability to permit the results to be admitted in
evidence in a DWI prosecution, or used as the basis for a per se
violation of the statute and, therefore, a conviction.
III. How the Alcotest Works
The State seeks in this proceeding to establish that the
Alcotest is scientifically reliable to measure defendants’ blood
alcohol levels. We turn, then, to a discussion of the
physiological effects of alcohol on the body, how the Alcotest
measures the concentration of alcohol in the breath and converts
it to a measure of blood alcohol levels, and the State’s
proposed procedures to ensure that the Alcotest functions
properly.
A. Scientific and Physiological Framework
Much of the scientific evidence in the record before the
Court is undisputed. In fact, the basic physiological
mechanisms on which all breath testing devices rely are not
7
Although the commercial driving statute defines "alcohol
concentration" in terms of both blood and breath, see N.J.S.A.
39:3-10.11, our focus here will be on the more commonly applied
articulation of blood alcohol.
Page 24
21
themselves controversial. We set these scientific propositions
forth here, however, to provide the basis for our analysis of
the scientific matters that are in dispute.
1. Alcohol and Blood
8
Alcohol is ordinarily ingested orally and enters the
stomach where it is absorbed through the stomach’s walls and
intestines and is thereafter carried by the blood through the
liver to the heart. The heart pumps the blood and, along with
it, the alcohol, through the body, including carrying it to the
brain and the lungs. Alcohol exerts its effects on an
individual when the blood containing the alcohol reaches the
brain.
Absorption begins immediately once a person starts
drinking. The rate of absorption varies greatly from one person
to the next and can even vary in the same person at different
times. It depends on a wide variety of factors including
general health, recent food consumption, physical makeup, amount
of alcohol consumed, weight, and gender.
Elimination of alcohol also starts as soon as a person
begins to drink. Alcohol is eliminated through excretion and
metabolization, which occur when alcohol passes through the
8
We draw these scientific descriptions from the testimony in the
record offered by Barry Logan, a board-certified forensic
toxicologist, and Patrick Harding, a biochemist who has also
previously testified in proceedings involving breath testing
devices. See State v. Downie, 117 N.J. 450, 454 (1990).
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22
liver and is broken down by enzymes and dehydrogenates. When a
person’s body is absorbing alcohol faster than he or she is
eliminating it, the concentration of alcohol in the blood will
continue to rise. This period of time is ordinarily referred to
as the absorptive phase. The concentration will reach its peak,
and it will achieve a plateau, at the time when elimination and
absorption are occurring at about the same rate.
When the person stops ingesting alcohol, or slows down
ingestion to the point where the body is eliminating alcohol
more quickly than absorbing it, the body enters what has
generally been referred to as the post-absorptive phase. During
this period of time, the concentration of alcohol in the blood
decreases.
2. Alcohol and Breath
The reported concentration of alcohol in any particular
person varies depending upon the source of the test sample. An
understanding of the relationship of these potential test sample
sources to BAC is important to our analysis. Alcohol passes
into the lungs, through the walls of the air sacs, called
alveoli. As it does so, it mixes with the air that the person
has inhaled. When the person exhales, alcohol passes out of the
body as part of the breath.
An individual’s breathing pattern can influence the amount
of alcohol that appears in any particular breath. In addition,
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23
the amount of alcohol in the breath sample represented by a
single act of exhalation will vary from the beginning to the
end. This is because the breath actually comes from different
parts of the body, from the mouth to the deepest part of the
lungs. Except for the possible interference that would occur if
the test subject had ingested alcohol so recently that residual
mouth alcohol were captured, the first part of the breath comes
from the mouth and throat where there is little contact with the
alcohol passing through the alveoli. However, as the person
continues to exhale, the expelled air comes from deeper in the
respiratory system, where it contains alcohol that more closely
represents the amount passing through the lungs from the
circulating blood.
3. Differences Between Blood and Breath Tests
Our statute establishes the violation in terms of blood,
and not breath alcohol concentration. Although testing an
individual’s blood would presumably provide more direct evidence
of that person’s BAC, there are obvious practical and logistical
problems associated with attempting to collect blood samples
from suspected drunk drivers routinely.
As a result, although because of our statute New Jersey is
considered to be a “blood state,” we have long permitted BAC to
be established through breath testing, in which breath samples
are tested and converted to determine blood alcohol levels.
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24
Breath testing therefore uses an indirect measure of BAC by
calculating the alcohol concentration in the breath (breath
alcohol concentration, or BrAC) and extrapolating to derive the
BAC using a blood/breath ratio. Breath testing has become the
preferred method for field testing because it can be performed
easily, is highly automated, does not require scientific skill,
and produces an immediate result.
B. Operation of the Alcotest
In light of the fact that breath testing always relies on
the extrapolation of BAC through testing of breath, the
precision with which any device evaluates BAC through this
method is critical to our consideration of the admissibility of
the device’s results. We turn then to a description of the
manner in which the Alcotest operates.
The Alcotest, which is currently in use in seventeen of our
twenty-one counties,
9
as well as in other states, including
Alabama and parts of New York, is a device that purports to
accurately measure the concentration of alcohol from a human
subject through breath testing. The Alcotest is an embedded
system, meaning that it is a device with a specific purpose, and
it relies on pre-loaded software that the manufacturer refers to
as firmware.
9
Only Bergen, Essex, Monmouth, and Hudson counties do not
currently use it.
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25
The Alcotest uses both infrared (IR) technology and
electric chemical (EC) oxidation in a fuel cell to measure
breath alcohol concentration. The device therefore produces two
test results for each breath sample, one derived from an IR
reading and the other, by and large, from an EC reading.
Although the precise mechanism by which these tests are
accomplished is not relevant to the issues before us, the IR
chamber, also called a cuvette, captures the breath sample and
uses infrared energy to calculate absorption of the energy by
the alcohol concentrated in the chamber. IR technology has been
available since the 1970’s or early 1980’s and scientists have
concluded that it is reliable. See, e.g., Foley, supra, 370
N.J. Super. at 350.
The EC, or fuel cell technology, uses a catalyst to absorb
alcohol and provide a second measurement
10
of breath alcohol
concentration from a small sample captured from the cuvette. In
the EC chamber, voltage is applied to cause the catalytic
reaction, which causes any alcohol that is present to oxidize.
As that occurs, the oxidation process creates electricity, which
is then measured to determine the amount of alcohol interacting
with the fuel cell.
10
Draeger has consistently represented that the IR and EC tests
are “completely independent” as a basis for its claim that the
device is reliable. As our discussion of the fuel cell drift
algorithm, see Section IX.A., infra, explains, however, the
reported results of the two tests are not always independent.
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26
C. Test Administration and the Alcohol Influence Report
The Alcotest reports the IR and EC readings on a printout
from the machine, referred to as the Alcohol Influence Report
(AIR).
11
One of the claimed advantages of the Alcotest, as
compared to the breathalyzer, is that it is not operator-
dependent, but performs its analysis in accordance with a
sequence through a computerized program that gives visual
prompts to the operator. We turn, then, to a description of the
manner in which the device operates in practice in performing
these functions.
The actual administration of the test is performed by one
of the more than 5000 certified Alcotest operators in New
Jersey. When a person has been arrested, based on probable
cause that the person has been driving while intoxicated, he or
she is transported to the police station to provide a sample for
the Alcotest. The Alcotest, consisting of a keyboard, an
external printer, and the testing device itself, is positioned
on a table near where the test subject is seated.
Operators must wait twenty minutes before collecting a
sample to avoid overestimated readings due to residual effects
of mouth alcohol. The software is programmed to prohibit
operation of the device before the passage of twenty minutes
11
To the extent relevant to our analysis, we describe the
specific details of the information reported on each AIR
further, see infra.
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27
from the time entered as the time of the arrest. Moreover, the
operator must observe the test subject for the required twenty-
minute period of time to ensure that no alcohol has entered the
person’s mouth while he or she is awaiting the start of the
testing sequence. In addition, if the arrestee swallows
anything or regurgitates, or if the operator notices chewing gum
or tobacco in the person’s mouth, the operator is required to
begin counting the twenty-minute period anew.
The Alcotest that is the focus of this matter utilizes
software developed in collaboration with the New Jersey State
Police and known as New Jersey Firmware version 3.11.
12
This
software prompts the operator through a specific testing
sequence on each arrestee. Essentially, the process begins when
the operator has typed identifying information into the machine
through a series of questions and prompts. The device then
starts and automatically samples the room air to determine if
there are chemical interferents in the room. This is known as a
blank air test. Assuming that there are none, the machine then
uses its attached wet bath simulator to heat a solution and
12
The Alcotest that was the subject of the Law Division’s
findings and conclusions in Foley, supra, utilized an earlier
version of the software known as New Jersey Firmware version
3.8. A number of changes made to the software following the
court’s decision in Foley have become important to our analysis
as we will detail.
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28
produce a vapor sample from a control test solution
13
with a
known alcohol concentration of 0.10, which is then measured
using IR and EC technology. In order to be valid, the control
test, in accordance with currently-programmed firmware, must
produce results between 0.095 and 0.105. If the results do not
identify the known sample within the defined parameters, the
device is programmed so that the test cannot proceed. If the
machine is working properly as demonstrated by the control test,
then the instrument performs a second blank air test, again
using room air to purge the test sample out of the chamber.
Assuming that the results of the control test are within
the established parameters, the instrument prompts the operator
through a message on the LED screen to collect a breath sample.
The operator then attaches a new, disposable mouthpiece and
removes cell phones and portable electronic devices from the
testing area. The operator is required to read the following
instruction to the test subject: “I want you to take a deep
breath and blow into the mouthpiece with one long, continuous
breath. Continue to blow until I tell you to stop. Do you
understand these instructions?” The arrestee then provides the
13
The record reflects that the control solution must be changed
after approximately twenty-five test sequences or thirty days.
The device prompts the operator when the solution needs to be
changed and generates a separate report evidencing the results
of control testing after each change in the solution.
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29
first breath sample, which is measured in the IR and EC
chambers.
Lights on the LED screen and an audible sound alert the
operator when a breath sample which meets the minimum fixed
standards, comprised of four criteria, has been provided. The
operator then tells the subject to stop and the instrument
performs a third blank test to purge the first breath sample.
After a two-minute lock-out period during which the device will
not permit another test, the instrument prompts the operator to
read the instruction again to the arrestee and collect the
second breath sample. The second sample is also measured using
the IR and EC technology. The second sample is purged from the
machine and the device performs a fourth blank test using room
air.
If the measurements for the first breath test are out of
the accepted range of tolerance with the measurements for the
second breath test, the machine prompts the operator to conduct
a third breath test. Depending on the relationship among the
three tests, the results are reported. The instrument then
performs a second control test with the known solution from the
simulator. Finally, the air is purged again and a final blank
test is performed.
The device gives the operator three minutes to collect each
sample. If that time expires without a sample, the device will
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30
present the operator with three options. The options are to
terminate the test, report that the person refused the test, or
continue with the test. If the officer opts to continue the
test, the device will purge itself and then prompt the operator
to collect another sample. The operator has a maximum of eleven
attempts to collect two breath samples. After the eleventh
failed test, the only two options permitted by the device are to
terminate testing or report refusal.
14
As currently configured by New Jersey Firmware version
3.11, the software now being utilized, the device will accept a
sample only if it meets certain minimum criteria that have been
devised by the State.
15
Once the subject has provided an
acceptable breath sample, the machine prompts the operator,
through a system of lights on the LED screen and an audible
beep, to tell the subject that he or she may stop. If any of
these minimum test criteria has not been met, the machine will
generate an error message and a report of how much air was
14
Even if the officer types in the code for a refusal, he is not
required to issue a summons for refusal. Instead, the officer
may opt to start the test again and give the arrestee eleven
more attempts. Alternatively, the officer may decide to
terminate testing, without charging the test subject with
refusal. An operator will generally select this option if he or
she concludes that the subject has in fact attempted to comply
but is not capable of providing a sample that meets the minimum
test criteria.
15
The legitimacy of some of these criteria are in issue in this
dispute. We need not explain them in detail here but will do so
in the context of our analysis of those criteria that have given
rise to a debate. See infra, Section VIII.B.
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31
submitted. The machine then offers the operator the option of
giving the person another attempt or asserting refusal.
The results of the test sequence are printed out from the
device in a sequentially numbered document referred to as an
AIR. The AIR contains the test subject’s identifying
information, date, time, and test results for each stage of the
procedure. Each AIR includes a variety of other information
relevant to the test, including the serial number of the device
used in the test, dates of and file numbers for calibration and
linearity checks, and solution control lot and bottle numbers.
The operator must retain a copy of the AIR and give a copy to
the arrestee.
In the event that the administration of the test resulted
in errors because of, for example, insufficient breath volume or
duration, the AIR will report those errors and will not attempt
to calculate the BAC from an inadequate sample. Similarly, if
the results of the control test do not fall within the
acceptable tolerance, the device will produce an AIR that
reports that the test could not be accomplished because of an
invalid control test.
If the results are within the acceptable tolerance, the AIR
shows the BAC values for each IR and EC reading for each of the
tests to three decimal places. The AIR then reports the final
BAC test result, which will be the lowest of the four acceptable
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32
readings, that is, readings within acceptable tolerance, which
the device is programmed to truncate to two decimal places.
Truncating, as opposed to rounding, involves simply reporting
the first and second decimal places and dropping the third. For
example, by truncating, a reading of 0.079 percent BAC would be
reported as 0.07 and a reading of 0.089 percent BAC would be
reported as 0.08. The effect of truncating, as opposed to
rounding, is to under-report the concentration, to the benefit
of the arrestee.
By statute, the Legislature has designated the Attorney
General to create and implement a breath testing program. See
N.J.S.A. 39:4-50.3. The Attorney General, in turn, has vested
responsibility for carrying out this command in the State
Police. See N.J.A.C. 13:51-3.2. The Alcotest program was
designed and is overseen by the Office of Forensic Sciences, a
Division of the New Jersey State Police. The director of the
forensic laboratory, Dr. Thomas Brettell, together with other
forensic scientists in the Office assigned to the alcohol/drug
testing unit, conducted tests on a variety of breath testing
devices in an effort to select a successor to the breathalyzer.
After the Alcotest was chosen, Brettell assisted in the
creation of the test criteria and provided other input into the
original programming and the updates to the software that now is
utilized in operating the device. His office has collaborated
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33
with municipalities to train Alcotest operators and to oversee
certain aspects of the program. State Police Sergeant Kevin
Flanagan is the field supervisor for five State Police
coordinators, each of whom monitors a geographic area. The
coordinators receive factory and classroom training from Draeger
and they, in turn, train the operators. Coordinators do not
perform any repairs, but they perform “black key” functions,
such as calibration and software uploads, which are not done by
other police personnel.
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 IR and EC 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. When coordinators undertake to perform this
calibration, currently on an annual basis, and other routine
inspections, they also download the device’s test information
onto two compact discs.
16
In accordance with current State
16
The record reflects that each device is capable of storing the
data from 1000 test results. Current State Police protocol,
however, requires the coordinators to download data from each
device before it exceeds 500 tests.
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34
Police protocol, one of these discs is kept in the local police
department’s evidence file and the other is held by the
coordinator.
17
IV. Findings of the Special Master
Following hearings that spanned four months and included
testimony from eleven fact and expert witnesses called by the
State and two experts offered by defendants, the Special Master
issued his first report on February 13, 2007. Although there
are some aspects of that report and certain of the Special
Master’s recommendations that are not disputed by any of the
parties, much of the report and many of the recommendations are
challenged in this proceeding. As a result, we briefly
summarize the report and its findings and recommendations before
turning to our analysis of the matters in dispute.
A. Initial Report
In short, the Special Master concluded that the Alcotest in
general is scientifically reliable, that it is superior to the
breathalyzer because it relies less on operator influence, and
that the AIR it generates, therefore, meets the test for
admissibility in drunk driving prosecutions in general.
Notwithstanding that conclusion, however, the Special Master
offered a large number of suggestions for modifications both as
17
See Part IV, infra (Special Master’s Finding 7, recommending
creation of centralized database).
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35
to the future operation of the device and as to the use of the
extant AIRs as evidence in pending prosecutions.
In his first report, the Special Master offered all of the
following specific findings and recommendations.
18
He found that
the use of the 2100 to 1 blood/breath ratio is scientifically
reliable (Special Master’s Finding 1(b)); he recommended that
the AIR, solution change report and calibration documents be
amended to include a listing of the temperature probe serial
number and value (Special Master’s Finding 2(a)); he recommended
that the State be required to publish future firmware revisions
(Special Master’s Finding 2(b)); he recommended that the State
continue to lock the firmware so that only Draeger and the
coordinators would be able to make changes to that software
(Special Master’s Finding 2(c)); he found that the AIR, which
reports all of the breath test results, rather than only the
final reported lowest result, should be admissible in evidence
(Special Master’s Finding 2(d)); he recommended that the AIR be
revised to identify the reason that a particular defendant did
not achieve a reportable result (Special Master’s Finding 2(e));
he found that Firmware version 3.11 is itself scientifically
reliable and that future changes would not undermine its current
18
We have elected to adopt, only for the sake of simplicity and
clarity, the numbering of the recommendations utilized by the
Special Master rather than to proceed with a sequential
enumeration.
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36
reliability (Special Master’s Finding 2(f)); he concluded that
the Alcotest is not operator dependent, (Special Master’s
Finding 2(g)), and that it is therefore superior to the
breathalyzer (Special Master’s Finding 8); he recommended that
all defendants have access to centrally collected data on their
matters as well as to redacted versions of information relating
to breath tests performed on other arrestees (Special Master’s
Finding 2(h)); he recommended that the calibration,
certification and linearity reports be amended to include the
serial number of the digital temperature measuring system
utilized (Special Master’s Finding 2(i)); he found that the
State should be required to provide training for defense counsel
and their experts similar to that provided to the certified
operators (Special Master’s Finding 2(j)); he found that the
agreement between Draeger and defendants regarding future
testing of firmware revisions should be enforced (Special
Master’s Finding 3); he concluded that the Alcotest is well
shielded against radio frequency interference (RFI) (Special
Master’s Finding 4); he recommended that operators be required
to testify about their qualifications and the testing procedures
utilized in any proceeding relying on Alcotest results (Special
Master’s Finding 5(a)); he identified twelve foundational
documents that the State must provide in discovery, which may be
admitted into evidence without further formal proofs, and
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37
reasoned that they must be admitted into evidence in cases in
which the defendant is not represented by counsel (Special
Master’s Finding 5(b)); he concluded that the technical criteria
for a minimum breath sample utilized by the Alcotest are
appropriate, with the exception of the minimum breath volume as
it relates to women over sixty years of age (Special Master’s
Finding 6); he recommended that the State create and maintain a
centralized database of the digitally recorded data (Special
Master’s Finding 7); he concluded that the State must commence
use of the Draeger breath temperature sensor and apply a
mathematical formula to account for the effect of temperature to
pending reported results (Special Master’s Finding 9); and he
recommended that the State must reduce the acceptable tolerance
for breath results to a total range of ten percent in place of
the currently utilized calculation of a range of plus or minus
ten percent for future use of the device (Special Master’s
Finding 10).
B. Draeger’s Role in the Proceedings
During the first oral argument before this Court following
the Special Master’s release of his report and recommendations,
defendants argued that the entire proceedings were tainted by
the manner in which defendants were required to proceed. They
argued that because Draeger had refused to make its source code
available for their inspection and for analysis by their
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38
experts, the Court could have no confidence in the reliability
or accuracy of the device from a scientific perspective. In
short, they argued that the manufacturer’s intransigence forced
the Special Master and, by extension, this Court, to rely on
“black box” testing,
19
when only a complete and thorough analysis
of the source code used to operate the device would suffice for
constitutional purposes.
Indeed, the refusal of Draeger to intervene precluded the
Special Master from permitting any testing of the manner in
which the device operates, and required him to rely on tests
that at best could only demonstrate that the machine reliably
appeared to be able to identify correctly, or at least
acceptably within the established parameters, the alcohol
concentration of a known test sample. There is some logic to
that method of proceeding. If a breath testing device can,
reliably and consistently over time, correctly analyze a sample
of known alcohol concentration, one might argue that it matters
little how the device is able to do so. Notwithstanding the
rather considerable force of that logic, we were persuaded that,
in light of the constitutional dimension of the issues before
19
“Black box” testing refers in this context to a method of
evaluating the reliability of the device by using known
concentrations to test whether the device accurately detects
those concentrations. It refers to testing that does not also
consider whether the mechanism by which the result is achieved
might be flawed.
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39
us, Draeger’s eventual election to intervene in this matter
afforded us the opportunity to permit defendants to engage in
the technical analysis of the source code that they had asserted
was so necessary to the adequate protection of their rights.
C. Source Code Remand
Following our order remanding the matter for further
analysis of the issues by means of the source code evaluation by
the two independent testing entities, see Chun, supra, 191 N.J.
at 309-10, the Special Master entertained further testimony on
the issues. His supplemental report, dated November 8, 2007,
included several additional recommendations, but continued to
adhere to his initial conclusion that the device is
scientifically reliable for use in pending and, with
modifications, future proceedings.
In summary, the Special Master found that a mathematical
algorithm that corrects for fuel cell drift did not undermine
the reliability of the results, but he recommended that the
machines be recalibrated every six months rather than annually
to afford more regular opportunities to replace aging fuel
cells; he found that a specific buffer overflow error should be
corrected in future versions of the software and recommended
that in all pending matters in which a third test was performed,
that the AIR be excluded or recalculated according to a
corrective formula, described in the record as the Shaffer
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40
formula; he recommended that catastrophic error detection be re-
enabled to stop and restart the machine in the event that such
an error occurs; he recommended that the AIR should be
inadmissible in any case in which there is data missing from it;
he revised his initial finding 5(b) to recommend that the twelve
foundational documents be produced in discovery and be
admissible in all cases, without regard to whether a particular
defendant is represented by counsel or not; he suggested that
notice of any and all proposed software revisions be provided to
the NJSBA; he recommended generally that defendants’ expert’s
suggestions for reorganizing and simplifying the source code be
considered for implementation, but declined to mandate adherence
to any specific design standard for future software revisions;
he concluded that a weighted averaging algorithm in the code was
an accurate methodology that fairly aids in the measurement of
breath samples in a test subject; and he accepted the testing
method employed by the State’s expert and rejected the
hypothetical probability analysis raised by defendants as being
unnecessarily speculative.
V. Uncontested Issues
We begin our analysis with the observation that some of the
Special Master’s findings and recommendations have not been
contested by any of the parties. We will therefore limit our
review of those findings and recommendations to a consideration
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41
of whether they are supported by sufficient credible evidence in
the record, see State v. Locurto, 157 N.J. 463, 472 (1999);
State v. Johnson, 42 N.J. 146, 158-59 (1964), and, by extension,
whether we will adopt them as our own. With this standard to
guide us, we need only briefly address each of them. We do not,
however, by the relative brevity of the attention we here accord
to these findings and recommendations, intend to suggest that
any of them is unimportant to our overall evaluation of the
support in the record for the ultimate determination of the
scientific reliability of the device.
Certainly, there is adequate support in the record for the
Special Master’s finding that the Alcotest is not as operator-
dependent as was the breathalyzer. (Special Master’s Findings
2(g), 8). Indeed, the testing sequence we have described is
almost entirely controlled and prompted by the device and, with
only a very few exceptions, the operator is not able to
influence the manner in which the test is administered.
Similarly, there is ample support for the finding that the
Alcotest is well-shielded from the impact of any potential RFI
that might otherwise affect the reported results or limit our
confidence in the accuracy of the test results. (Special
Master’s Finding 4).
The parties agree, as well, about certain of the Special
Master’s recommendations for future revisions in the firmware
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42
that will provide additional information on the reported results
that the device generates. For example, the parties agree that
the firmware should be rewritten so that the AIR, solution
change report, and calibration documents include the temperature
probe serial number and probe value (Special Master’s Finding
2(a)); that if the particular test subject has not received a
reportable result, the AIR must include a statement identifying
why that occurred (Special Master’s Finding 2(e)); and that
future calibration, certification and linearity reports should
include the serial number of the Ertco-Hart digital temperature
measuring system utilized in performing those testing and
maintenance operations (Special Master’s Finding 2(i)).
As to each of these recommendations, there is sufficient
evidence in the record to support the conclusion that the
addition of this information for future firmware revisions might
be of some assistance to future defendants. Notwithstanding our
agreement that these proposed alterations, to which the State
has acceded, might be beneficial, we discern no basis in the
record that suggests that any previously-generated report that
lacks these additional details is therefore insufficient as a
matter of proof of a per se violation. Rather, we agree with
the Special Master that updating the firmware to provide this
information in addition to that which it already provides would
merely be beneficial.
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43
Similarly, the Special Master recommended, and the parties
by and large agree, that the State should create and maintain a
centralized database of information regularly uploaded through
modem (Special Master’s Finding 7), and that defendants should
have access to centrally collected and maintained data on their
own cases, as well as to the compiled scientific data on matters
involving others that has been redacted to shield the personal
information related to those other individuals as appropriate
(Special Master’S Finding 2(h)).
20
Our review of the record
satisfies us that there is substantial, credible evidence that
supports the Special Master’s recommendation concerning the
creation and maintenance of a regularly-updated database, as
well as his recommendation relating to providing access to that
data to defendants.
VI. Standards of Review
We turn, then, to the matters as to which the parties are
deeply divided. In part, our task is made more complicated by
the fact that some of the shortcomings in the operation of the
device can only be corrected with respect to future uses of the
20
The amicus NJSBA suggests that defendants should have access
to previously downloaded, centrally collected data. We do not
perceive this to be different from the Special Master’s
recommendation in this regard and the extent of the access to be
afforded to any litigant does not appear to be a matter in
dispute. In the absence of any suggestion in the record that
there is a genuine difference of agreement among the parties on
this matter, we see no need to address it further.
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44
machine, leaving, potentially, doubt as to the validity of the
previously-generated AIRs which form the basis for prosecutions
stayed pending the outcome of these proceedings. Moreover, our
task has become further complicated by the questions raised by
the United States Supreme Court’s recent Confrontation Clause
21
cases, see Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004); Davis v. Washington, 547 U.S. 813, 126
S. Ct. 2266, 165 L. Ed. 2d 224 (2006); cf. Whorton v. Bockting,
U.S.
, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007), as to
which we must proceed with great care when the only “witness”
confronting a defendant is a machine.
We begin, as we must, with a brief review of the applicable
principles of law governing admissibility of novel scientific
evidence. Admissibility of scientific test results in a
criminal trial is permitted only when those tests are shown to
be generally accepted, within the relevant scientific community,
to be reliable. See State v. Harvey, 151 N.J. 117, 169-70
(1997) (citing Frye v. United States, 293 F. 1013, 1014 (D.C.
Cir. 1923)); Romano, supra, 96 N.J. at 80; Johnson, supra, 42
N.J. at 170-71. That is to say, the test must have a
“sufficient scientific basis to produce uniform and reasonably
21
Because the Crawford implications were not thoroughly briefed
in connection with our consideration of the Special Master’s
Initial or Supplemental Reports, we invited the parties to
submit additional briefs directed to these issues, which we have
considered.
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45
reliable results and will contribute materially to the
ascertainment of the truth.” State v. Hurd, 86 N.J. 525, 536
(1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967)). As we
have previously commented, however, proof of general acceptance
is often “elusive.” Harvey, supra, 151 N.J. at 171.
Proof of general acceptance does not mean that there must
be complete agreement in the scientific community about the
techniques, methodology, or procedures that underlie the
scientific evidence. See Romano, supra, 96 N.J. at 80. Even
“the possibility of error” does not mean that a particular
scientific device falls short of the required showing of general
acceptance. Ibid. As we long ago recognized, “[p]ractically
every new scientific discovery has its detractors and
unbelievers, but neither unanimity of opinion nor universal
infallibility is required for judicial acceptance of generally
recognized matters.” Johnson, supra, 42 N.J. at 171. Neither
“complete agreement over the accuracy of the test [nor] the
exclusion of the possibility of error” is required. Harvey,
supra, 151 N.J. at 171.
Nevertheless, before we can conclude that scientific test
results are admissible in evidence, the proponent of the
scientific device must bear its burden to “clearly establish”
that the device or the test meets the standard of general
acceptance as we have defined it. Id. at 170; see State v.
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46
Kelly, 97 N.J. 178, 209-11 (1984); State v. Cavallo, 88 N.J.
508, 521 (1982).
VII. Defendants’ Challenges to Scientific Reliability
Defendants raise three distinct sets of challenges to the
basic scientific reliability of the Alcotest. First, they
attack it on numerous traditional grounds relating to scientific
acceptance, not unlike the challenges raised in Romano with
regard to two breathalyzer models, by contesting many of the
Special Master’s findings and recommendations. Second,
defendants separately attack the source code utilized to operate
the device as being so inherently flawed as to be independently
lacking in scientific reliability. Third, following the United
States Supreme Court’s lead in Crawford, defendants attack the
admissibility of documents generated by or in connection with
the device, which the Special Master suggested be routinely
admitted into evidence, as violating their constitutional rights
under the Confrontation Clause.
In addition, the State, although urging us to adopt the
Special Master’s conclusion about the general scientific
reliability of the device, argues that many of his
recommendations are unnecessary and that none of them undermines
the accuracy of any of the previously-reported BAC results for
any defendant. The State therefore contends that the majority
of the Special Master’s recommendations are merely precatory,
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47
that is, suggestions that the State may or may not elect to
adopt. Finally, the NJSBA, although in large part agreeing with
the Special Master’s findings and conclusions, suggested a
refinement to his recommendation relating to minimum breath
sample criteria.
In reviewing the findings and conclusions set forth by the
Special Master in his report, we employ our ordinary standards
of review, considering them in the same manner as we would the
findings and conclusions of a judge sitting as a finder of fact.
We therefore accept the fact findings to the extent that they
are supported by substantial credible evidence in the record,
see Locurto, supra, 157 N.J. at 472, but we owe no particular
deference to the legal conclusions of the Special Master, see
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995). With these standards in mind, we turn to our
analysis of the issues in dispute.
VIII. Disputed Findings and Recommendations
We begin our discussion by more specifically identifying
the three categories of disputed findings and recommendations.
First, there are a number of disputes about the criteria
employed by the Alcotest to identify an acceptable breath sample
and convert the measurement data into a reported result. This
category includes the Special Master’s recommendations on each
of the following matters: (a) the utilization of the 2100 to 1
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48
blood/breath ratio (Special Master’s Finding 1(b)); (b) the
minimum breath sample criteria (Special Master’s Finding 6); (c)
the requirement for the addition of a breath temperature sensor
(Special Master’s Finding 9); and (d) the acceptable tolerance
among test results (Special Master’s Finding 10).
Second, there are a number of disputes arising from the
supplemental remand that relate to the firmware and source code
analysis. This category includes the Special Master’s
recommendations about each of the following matters: (a) the
fuel cell drift algorithm; (b) the weighted averaging sequence;
and (c) the adequacy of the overall software design. In
addition, although the parties agree on the need to revise the
firmware to address two shortcomings identified through the
source code analysis, namely, the buffer overflow error and the
disabling of the catastrophic error detector, to the extent that
these conceded errors may have an impact on the reliability of
AIR results pending modification of the firmware, we are
compelled to address them as well.
Finally, there are a number of issues that arise as a
result of the Special Master’s findings and recommendations
concerning foundational evidence (Special Master’s Findings
5(a), 5(b)). This category includes all of the following
recommendations: (a) the requirement for disclosure of
foundational documents as a prerequisite for admissibility of
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49
any Alcotest results; (b) the required foundational documentary
proofs at trial; (c) the admissibility or uses of incomplete
reports; and (d) the constitutionally-required testimonial
proofs.
We begin, then, with the disputed findings and
recommendations as they relate to the criteria employed by the
Alcotest for the collection of an adequate breath sample and the
creation of an acceptable and reportable result.
A. Blood/Breath Ratio
As we have previously noted, the drunk driving statutes in
New Jersey define the offense in terms of BAC. In the majority
of cases involving individuals charged with these offenses,
however, the particular defendant has not undergone a blood test
but instead has submitted to a breath test. Modern breath
testing devices include an internal mechanism that collects an
acceptable breath sample and converts the alcohol detected in
the breath (BrAC) into a measure of the person’s BAC.
Historically, breath testing devices convert from BrAC to
BAC by using a mathematical calculation based upon a
scientifically accepted, judicially established blood/breath
ratio. The Alcotest utilizes a blood/breath ratio of 2100 to 1,
a ratio that this Court has previously considered as a part of a
challenge to the breathalyzer. See Downie, supra, 117 N.J. at
460-63.
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50
The Special Master concluded that the 2100 to 1
blood/breath ratio adopted by this Court in Downie and utilized
by the Alcotest remains a valid measuring mechanism. He based
this conclusion on the opinions of three of the State’s experts
and on a number of published studies here and abroad relating to
the average, or mean, blood/breath ratio that he found to be
authoritative.
22
At the same time, the Special Master rejected
the opinions offered by two of the experts who testified on
behalf of the defendants. He found that the analysis of one of
these experts was filled with so many errors that it could not
be reliable, and he rejected as flawed the assertion of the
other defense expert that the Alcotest actually does not test
alveolar air. Defendants nonetheless assert that the continued
use of the 2100 to 1 ratio is not scientifically supported and
they urge us to reject any use of the Alcotest on this basis.
The true focus of our analysis on this issue must be on
whether there has been any development in the scientific
community in the time since we decided Downie that undermines
22
See, e.g., Allan R. Gainsford, et al., A Large-Scale Study of
the Relationship Between Blood and Breath Alcohol Concentrations
in New Zealand Drinking Drivers, 51 J. Forensic Sci. 173 (2006);
Alan Wayne Jones & Lars Andersson, Variability of the
Blood/Breath Alcohol Ratio in Drinking Drivers, 41 J. Forensic
Sci. 916 (1996). These studies appeared in the Journal of
Forensic Sciences, which our Appellate Division has noted is an
authoritative publication in the field of forensic science. See
State v. Miller, 64 N.J. Super. 262, 268-69 (App. Div. 1960)
(citing Journal of Forensic Sciences to support reliability of
breath test).
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51
our continued confidence in the accuracy and validity of the
conclusion we drew there about the 2100 to 1 blood/breath ratio.
Simply put, there is not. Our review of the record demonstrates
that the arguments that we considered and rejected in Downie
have been raised anew, but there is no basis on which to
conclude that the continued utilization of this ratio is in any
way in error.
We reach this result for reasons similar to those that we
relied upon in Downie. First, we defer to the findings of the
Special Master concerning the credibility of the expert
witnesses who testified. See Locurto, supra, 157 N.J. at 471.
In part, his credibility analysis reflects the fact that one of
defendants’ experts candidly conceded that the use of this ratio
generally tends to underestimate blood alcohol, to the benefit
of the test subject.
Second, although there is some evidence that there is a
percentage of the population for whom the 2100 to 1 blood/breath
ratio may actually overstate the presence of blood alcohol, this
evidence is not significantly different from the record
considered in Downie, supra, 117 N.J. at 460. Scientific
studies comparing actual blood alcohol content to breath-tested
alcohol content found only a minute number of individuals for
whom this ratio would have incorrectly reported a result over
the established legal limit for driving while intoxicated. The
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52
percentage of individuals for whom there may be an
overestimation by use of this ratio remains “extraordinarily
small.” Id. at 469.
Finally, defendants’ experts on this issue did not produce
any evidence to the effect that the ratio is regarded by
authorities in the field with even the slightest suspicion or is
otherwise subject to any significant scientific challenge.
Indeed, the overwhelming evidence demonstrates that use of this
ratio tends to underestimate the actual BAC in the vast majority
of persons whose breath is tested. Although, as in Downie,
there may be a small number of individuals who are disadvantaged
by a device that uses the 2100 to 1 blood/breath ratio, there is
sound scientific support for its continued utilization.
We are confident, based on our review of the record and our
evaluation of the Special Master’s findings, that there is
sufficient credible evidence to support his findings as to the
continued validity of the 2100 to 1 blood/breath ratio. We
therefore reject defendants’ challenge to its use and we adopt
the Special Master’s recommendation that it continue to be
utilized in the Alcotest.
B. Minimum Test Sample Criteria
As we have explained, the Alcotest is programmed to require
that a test subject produce a breath sample that meets four
minimum criteria before the sample is considered to be
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53
sufficient for purposes of deriving an accurate test result.
The Special Master recommended approval, in general, of four
minimum criteria for a breath sample, which are: (1) minimum
volume of 1.5 liters; (2) minimum blowing time of 4.5 seconds;
(3) minimum flow rate of 2.5 liters per minute; and (4) that the
IR measurement reading achieves a plateau (i.e., the breath
alcohol does not differ by more than one percent in 0.25
seconds). However, the Special Master also found that there was
credible evidence to support lowering the minimum breath volume
from 1.5 to 1.2 liters for women over the age of sixty. He
recommended that the State reprogram the device to reflect that
finding, but found no need to lower the minimum volume for the
general population.
Although both defendants and the State agreed with these
recommendations, the amicus NJSBA suggested that the minimum
breath volume be reduced to 1.2 liters for all persons, so as to
avoid a potential equal protection challenge to the tests.
Because no party has raised a challenge to any of these criteria
other than the minimum required volume and because the Special
Master’s findings as to the other minimum criteria are based on
substantial credible evidence, we consider only the minimum
breath volume issue.
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54
1. Scientific Data Concerning Breath Volume
Breath alcohol concentration increases, in general, as
exhalation continues and deep alveolar air is expelled. The
rate of increase in alcohol concentration declines as a person
exhales, but the breath alcohol concentration itself continues
to increase until exhalation ends. The record reflects that the
minimum breath volume for the Alcotest in New Jersey was fixed
at 1.5 liters because the State’s experts believe that this
volume will exceed the point after which most of the relatively
rapid rise in concentration has occurred and the average person
is in a fairly level part of the exhalation curve. In addition,
the State’s experts contend that 1.5 liters is the minimum
volume necessary for an accurate BAC calculation because samples
of lesser volume, in general, do not include deep lung air.
At present, the most commonly used minimum breath sample
among the states is 1.5 liters. That requirement, however, is
not universal. For example, Alabama, where the Alcotest is
currently in use, has adopted a minimum sample requirement of
1.3 liters for all test subjects. Moreover, although the
experts generally agreed that 1.5 liters is the optimal minimum,
some people may be incapable of providing that sample.
In particular, the record demonstrates that as women age,
they have an increasingly difficult time producing a 1.5 liter
breath sample. Data from Alabama introduced during the
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55
proceedings shows that women aged sixty to sixty-nine have more
difficulty producing the 1.5 liter minimum requirement than
their younger counterparts. One of the State’s experts cited a
study from Germany
23
that demonstrated that women from age sixty-
to sixty-nine have an average breath volume of 1.4 liters, women
seventy and over have an average of 1.3 liters, and women eighty
and over have an average volume of 1.2 liters. The German study
included data that demonstrates that men, regardless of age,
were capable of producing a sample of 1.5 liters. Indeed,
Brettell also conceded that his own study data confirmed the
accuracy of the assertion that older women were the only ones
unable to produce a sample of 1.5 liters.
Based on this data and the expert opinions offered during
the hearing, the Special Master recommended that the minimum
breath sample be fixed at 1.5 liters for all test subjects
except for women over the age of sixty. He suggested that the
device be reprogrammed to require women over the age of sixty to
provide a 1.2 liter minimum sample for a valid test result.
Although defendants and the State agreed with these
recommendations, the NJSBA suggests that this Court should
instead require that the minimum required sample volume for all
23
Although it is not entirely clear, it appears that the study,
a copy of which was marked in evidence, is only available as an
unpublished manuscript. See G. Schoknecht & B. Stock, The
Technical Concept for Evidential Breath Testing in Germany 1
(1995)(unpublished manuscript, Institute of Biophysics).
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56
subjects be reduced from 1.5 to 1.2 liters in order to avoid a
future potential equal protection challenge.
There is substantial credible evidence in the record to
support the Special Master’s findings and recommendations
concerning the required minimum breath sample volume. The
assertion by the NJSBA that adopting a different standard for
women over the age of sixty than we apply to all other test
subjects might give rise to an equal protection challenge,
however, requires our careful consideration.
The minimum breath volume is significant, in and of itself,
because the Alcotest is programmed to determine whether the four
minimum criteria have been met in a precise order, the first of
which is the volume analysis. A sample that falls short of the
currently required 1.5 liter volume measurement will be found to
be unacceptable. In that event, the Alcotest will report the
amount of air delivered and will display an error message which
reads: “minimum volume not achieved.” The Alcotest permits up
to eleven attempts to collect two breath samples, after which,
the only options that the device offers are “terminate” or
“refusal.” If the operator chooses terminate, the Alcotest will
reset and the subject can then be given the opportunity for
eleven more attempts. If the operator chooses “refusal,” the
test sequence ends, but the operator is not required to issue a
summons for refusal. N.J.S.A. 39:4-50.4a. Charging an arrestee
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57
with refusal remains largely within the officer’s discretion.
See generally State v. Widmaier, 157 N.J. 475 (1999).
Although an Alcotest operator has several options if the
device reports that the test sample is inadequate, the fact
remains that one of them, refusal, carries with it the
possibility of severe sanctions. See N.J.S.A. 39:4-50.4a. In
the face of abundant evidence in the record that there is an
identifiable group in the test population who may be
physiologically incapable of complying, the risk of permitting
the device to reject samples from members of that group and, by
extension, authorizing the issuance of a summons for refusal, is
unjust.
By the same token, however, if the machine were
reprogrammed to accept the lowered volume from a woman of the
appropriate age, even if she could produce the ordinarily
required higher volume but attempted to limit her breath output
to avoid producing the deep lung air needed for the most
accurate analysis, the machine would reject the sample because
it would not achieve the plateau. It is therefore clear that
lowering the volume for this identifiable group of test subjects
will not, in reality, afford them any advantage over others.
The constitutional question raised by the NJSBA, however, also
requires us to consider whether it will disadvantage the other
individuals required to take the test.
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2. Equal Protection and Lowered Breath Volume Requirement
Lowering the minimum breath volume for women over sixty
implicates both age and gender classifications and requires us
to consider a potential challenge brought pursuant to both the
federal and state constitutions. Because these standards are
different and because the decision-making paradigm is different
in the federal and state courts, we address them in turn.
The Equal Protection Clause of the United States
Constitution mandates that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. The Equal Protection Clause “is
essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed.
2d 313, 320 (1985). The federal equal protection analysis looks
to the characteristics of the impacted protected class or the
nature of the right being affected by the government action.
The federal test used to evaluate an age-based challenge is
concerned with whether “the age classification in question is
rationally related to a legitimate state interest. The
rationality commanded by the Equal Protection Clause does not
require States to match age distinctions and the legitimate
interests they serve with razorlike precision.” Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 83, 120 S. Ct. 631, 646, 145 L. Ed.
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59
2d 522, 542 (2000). On the other hand, if the government
distinguishes between males and females, the classification is
subject to a heightened scrutiny. Nev. Dep’t of Human Res. v.
Hibbs, 538 U.S. 721, 728, 123 S. Ct. 1972, 1978, 155 L. Ed. 2d
953, 963 (2003). For a gender classification to survive this
scrutiny, the government “must show ‘at least that the
[challenged] classification serves ‘important governmental
objectives and that the discriminatory means employed’ are
‘substantially related to the achievement of those
objectives.’’” United States v. Virginia, 518 U.S. 515, 533,
116 S. Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996) (alteration
in original) (quoting Miss. Univ. for Women v. Hogan, 458 U.S.
718, 724, 102 S. Ct. 3331, 3336, 73 L. Ed. 2d 1090, 1098 (1982)
(quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150,
100 S. Ct. 1540, 1545, 64 L. Ed. 2d 107, 114 (1980))).
Unlike its federal counterpart, the New Jersey Constitution
does not contain an equal protection clause. Instead, we have
found that “[a] concept of equal protection is implicit in Art.
I, par. 1 of the 1947 New Jersey Constitution . . . .” McKenney
v. Byrne, 82 N.J. 304, 316 (1980). Therefore, even though
Article I, paragraph 1 of our Constitution does not include the
phrase “equal protection,” “it is well settled law that the
expansive language of that provision is the source for [this]
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fundamental constitutional guarantee[].” Sojourner A. v. N.J.
Dep’t of Human Servs., 177 N.J. 318, 332 (2003).
“Although conceptually similar, the right under the State
Constitution can in some situations be broader than the right
conferred by the Equal Protection Clause.” Doe v. Poritz, 142
N.J. 1, 94 (1995). Indeed, we have held that our Constitution
provides “analogous or superior protections to our citizens” in
the context of equal protection. Peper v. Princeton Univ. Bd.
of Trs., 77 N.J. 55, 79 (1978).
[W]here an important personal right is
affected by governmental action, this Court
often requires the public authority to
demonstrate a greater “public need” than is
traditionally required in construing the
federal constitution. Specifically, it must
be shown that there is an “appropriate
governmental interest suitably furthered by
the differential treatment.”
[Taxpayers Ass’n of Weymouth Twp. v.
Weymouth Twp., 80 N.J. 6, 43 (1976) (citing
Collingswood v. Ringgold, 66 N.J. 350, 370
(1975)).]
In considering equal protection-based challenges, we have
not followed the traditional equal protection paradigm of the
federal courts, which focuses rigidly on the status of a
particular protected class or the fundamental nature of the
implicated right. Instead, when analyzing equal protection
challenges under New Jersey’s Constitution, we have applied a
balancing test that weighs the “nature of the affected right,
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the extent to which the governmental restriction intrudes upon
it, and the public need for the restriction.” Caviglia v. Royal
Tours of Am., 178 N.J. 460, 473 (2004) (quoting Greenberg v.
Kimmelman, 99 N.J. 552, 567 (1985)).
Finally, in addressing equal protection challenges raised
in the context of the exercise of police power, we have held
that “[t]he constitutional principles of due process and equal
protection demand that the exercise of the power be devoid of
unreason and arbitrariness, and the means selected for the
fulfillment of the policy bear a real and substantial relation
to that end.” Katobimar Realty Co. v. Webster, 20 N.J. 114, 123
(1955).
There are, in theory, two potential equal protection
challenges to the adoption of a different minimum volume
standard for women over the age of sixty. First, one could
argue that the lowered volume allows testing of a smaller sample
of shallower depth and therefore results in a lower BAC reading.
As to this challenge, it is undisputed that the device will not
accept a sample that has not reached a plateau. An older woman
who is capable of producing a greater volume of air but does not
do so can be identified by her failure to meet the plateau.
Therefore, we can be certain that all test subjects, regardless
of age or gender, will only achieve a valid sample when the
deeper lung air is included.
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Second, one could argue that the differentiation permits
older women who produce a sample with a volume between 1.2 and
1.5 liters to avoid being charged with refusal but exposes both
younger women and all men who provide samples of the same volume
to be prosecuted with that offense. The record on which the
differentiation between the test groups is based, however,
demonstrates that the older women, and only the older women, may
be physically incapable of producing the larger sample.
The right to equal protection does not require us to
scrutinize gender distinctions that are based on real
physiological differences to the same extent we would scrutinize
those distinctions when they are based on archaic, invidious
stereotypes about men and women. See State v. Vogt, 341 N.J.
Super. 407, 418 (App. Div. 2001) (recognizing that “[t]he Equal
Protection Clause . . . does not demand that things that are
different in fact be treated the same in law, nor that a state
pretend that there are no physiological differences between men
and women”). Similarly, the federal courts have recognized that
not all sex-based differentiations are actionable. For example,
in the employment context some “standards that appropriately
differentiate between the genders are not facially
discriminatory.” Jesperson v. Harrah’s Operating Co., 444 F.3d
1104, 1109-10 (9th Cir. 2006); see Healey v. Southwood
Psychiatric Hosp., 78 F.3d 128, 132 (3d Cir. 1996) (recognizing
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that gender may, in certain defined circumstances, be a bona
fide occupational qualification for employment).
Applying the principles we have derived from both the
federal and state constitutional analyses, we discern no
meritorious ground for an equal protection challenge to the
proposed two-tiered approach for minimum breath sample volume,
regardless of which level of scrutiny we apply. Viewed against
our flexible approach to equal protection challenges as derived
from Article I, paragraph 1 of our Constitution, the system
survives the constitutional challenge. The governmental policy
of achieving accurate breath samples as part of law
enforcement’s role in ridding our roads of drunk drivers is
appropriately coupled with the authority to prosecute for
refusal. The proposed two-tiered system for minimum breath
volume, however, is neither unreasonable nor arbitrary for it
advances these goals without holding the identified class, older
women, to a standard that they cannot meet. In this manner, the
policy goals are fulfilled through “means . . . [that] bear a
real and substantial relation to that end.” Katobimar, supra,
20 N.J. at 123.
Similarly, under either the rational relationship test
applicable to age-based classifications, or the heightened level
of scrutiny applied to gender-based classifications under the
federal constitution, the lowered requirement for women over
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sixty passes constitutional muster. The policy goals we have
identified for our state constitutional analysis are, in federal
parlance, “important governmental objectives,” see Hibbs, supra,
538 U.S. at 728-29, 123 S. Ct. at 1978, 155 L. Ed. 2d at 963.
The selection of the two tiers for this aspect of the test
requirements is both rationally related to those goals and
“substantially related” to their achievement. Ibid.
Notwithstanding the concern voiced by the NJSBA, there is
no scientific or other ground in the record to direct that the
minimum volume be lowered for all test subjects. On the
contrary, there is ample support for the Special Master’s two-
tiered approach and we discern no equal protection violation in
lowering the required breath volume to 1.2 liters for women over
the age of sixty.
3. Application to Pending Prosecutions
Our conclusion that the firmware must be revised to accept
a minimum breath volume sample of 1.2 liters from women over the
age of sixty requires us to consider the impact of this
directive for pending prosecutions. We presume that there may
be women who meet this criteria and whose prosecutions have been
stayed pending our decision on these issues. For the sake of
completeness of our analysis, we address briefly the possible
factual scenarios relevant to these defendants. First, there
may be defendants who attempted but failed to achieve a
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sufficient volume for an acceptable sample. These individuals
will be readily identified by an AIR with a breath volume error
message. Obviously, proof of the charge of drunk driving for
these women can only be based on observational proofs because
there will be no reportable BAC results in an AIR.
The significance of the lowered breath sample volume,
however, rests less in the evidence utilized to support a charge
of drunk driving and more in its relationship to a charge of
refusal. In light of the scientific evidence that we have found
to be persuasive, in the absence of some other evidence that
supports the conclusion that any such individual was capable of
providing an appropriate sample, by volume, we must assume that
she was unable to do so. For these individuals, then, an AIR
demonstrating insufficient breath volume may not be used as
proof on a charge of refusal. On the other hand, if the AIR
demonstrates that a woman over the age of sixty was able to
provide at least one sample that was deemed to be sufficient for
purposes of the 1.5 liter volume requirement, but she failed to
do so on a subsequent attempt, the AIR demonstrating those facts
may be utilized as evidence, albeit not conclusive proof, in
support of a refusal charge.
C. Breath Temperature Sensor
The Special Master also recommended that in the future the
State acquire and utilize a breath temperature sensor device
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separately marketed by Draeger,
24
and that, in the interim, all
previously reported results be reduced by 6.58 percent to
account for breath variations in individuals tested. (Special
Master’s Finding 9). This recommendation was based on the
Special Master’s factual findings about breath temperature.
We are compelled to reject this recommendation because
there is insufficient support in the record for the factual
findings on which it is based. In particular, the Special
Master found that “[m]ost breath analyzers used in the United
States operate on the assumption that the temperature of an
expired breath sample is 34 degrees C[elsius],” but that
“[r]ecent scientific research supports the proposition that the
temperature of an expired breath sample is actually almost 35
degrees C[elsius].” He then found that BrAC increases by 6.58
percent for each degree above thirty-four degrees Celsius, and
reasoned that all BAC results should be reduced by 6.58 percent
to ensure their accuracy and that the optional breath
temperature sensor should be used in the future. He noted, in
support of his recommendation, that the State of Alabama
24
There are several temperature devices related to the Alcotest.
One, which is an integral part of each device, and the report of
which is included on the AIR, heats the simulator solution in
the control test both in the device and, by extension, in the
calibration process. Another heats the breath tube, but not the
subject’s actual breath sample, to prevent condensation. The
device that is the focus of this recommendation, is an optional
device that tests the temperature of the actual breath sample
and reports it.
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requires reduction of all breath results from the Alcotest by
this percentage.
Although defendants and the NJSBA urge this Court to adopt
this finding and recommendation, in part based on the assertion
that the most relevant scientific community is Alabama, the
State argues that Alabama’s program is an aberration and that
this recommendation is both unsupported and unsound.
We are persuaded to agree with the State for both
evidentiary and practical reasons.
25
First, the record reflects
that the generally accepted average temperature for human breath
is 34 degrees Celsius. Only one study, performed in Alabama and
therefore relevant for that jurisdiction’s purposes, concluded
that the average breath temperature is closer to 35 degrees
Celsius. At best, then, there is a debate about average breath
temperature. In fact, however, there is no support in the
record for the Special Master’s assumption that a rise in breath
temperature increases BrAC.
Notwithstanding that, some of the experts conceded that a
one-degree Celsius increase in breath temperature could
25
We reject, however, the State’s suggestion that a measuring
device that might more accurately determine BAC and serve as a
basis for a per se prosecution is an “option” that falls within
the sole discretion of the State in performing its prosecutorial
function. Rather, to the extent that the State seeks to utilize
a device, like the Alcotest, to prove a per se violation of the
statute, we think it abundantly plain that the decision as to
the accuracy of any innovation for proof purposes, consistent
with our Constitution, is ours to make.
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theoretically produce a 5.5 to 6.8 percent increase in BrAC,
assuming that all other variables remained constant.
Accordingly, a one-degree Fahrenheit increase in breath
temperature could theoretically cause the BrAC to rise by 3.8
percent. There is, however, no evidence in the record that this
theoretical increase translates into an inaccurately elevated
BAC result.
Moreover, all of the experts agreed that even a theoretical
possibility of a link would not alter the reported BAC readings
in practice. That is, if a person with a normal temperature
submitted a breath sample with a 0.07 percent BAC, that person’s
breath test would be read as being over 0.08 percent BAC only if
he had a 2.5 degree-Celsius or 4.5 degree-Fahrenheit increase in
body temperature. There is no evidence in the record from which
we can conclude that there is any risk that any individuals with
such an elevated temperature are even being tested. There is
also no evidence in the record to support the finding that the
average breath temperature exceeds 34 Celsius or that an
elevation of the breath temperature, in and of itself, results
in an elevated BAC reading.
Second, to the extent that there might be a relationship
between the breath temperature of the subject submitting the
sample and BAC, there is significant evidence in the record to
support the finding that an independent device to measure that
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temperature or to reduce the results to account for it
26
would be
redundant. The device as currently configured incorporates two
methods that account for any possible overestimation of the BAC
reading that an elevated breath temperature might theoretically
cause, and they operate to the benefit of the person being
tested. Both the truncation of results and the use of the 2100
to 1 blood/breath ratio, a ratio that in part takes temperature
into account, effectively underestimate the calculation to the
advantage of the test subject.
The debate about the effect of temperature is not new. It
was presented specifically in Foley, supra, and in part in
Downie, supra. The trial court in Foley, supra, analyzing
virtually the same factual assertions as are included in this
record, concluded that, apart from a test subject suffering from
a very high fever, the natural variation of temperature was
subsumed within the variability of the blood/breath ratio. 370
N.J. Super. at 355. As that court recognized:
The factor of 2100 to 1 was developed by
doing studies on persons in the field
including both arrested subjects and research
subjects. The breath temperature of all
these subjects varied. Therefore, the 2100
26
The record reflects that the Alcotest with the added breath
temperature device does not actually recalculate BAC to account
for elevations in breath temperature. Instead, in Alabama, the
sensor reports breath temperature and if it is shown to be
elevated above 34 degrees Celsius, the court reduces the
reported BAC results by a factor of 6.58 percent for every
degree.
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to 1 ratio already subsumes within it the
variation in breath temperature of the
general population.
[Ibid.]
We, too, have previously considered the relationship, in
general, between temperature and the blood/breath ratio, see
Downie, supra, 117 N.J. at 462-63. We there concluded that the
utilization of the 2100 to 1 ratio adequately accounts for any
small impact that a particular subject’s elevated temperature
might potentially have on the result.
Our review of the record convinces us that the Alcotest BAC
reading would not be made more accurate by the addition of the
breath temperature sensor or by the across-the-board reduction
of all values by 6.58 percent to account for the theoretical
temperature factor as suggested by the Special Master. More to
the point, perhaps, we reach our conclusion for practical
reasons as well. The unrebutted evidence in the record
convincingly demonstrates that requiring the addition of the
breath temperature sensors would result in an unreasonable
maintenance burden to the program. In fact, the record includes
detailed descriptions of the added steps, equipment, time and
personnel that are necessary simply to maintain and calibrate
the temperature sensors.
27
That added practical and logistical
27
Because of the equipment needed to do so, the temperature
sensors cannot be maintained or calibrated on-site. Instead,
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burden on the State and the municipalities in New Jersey, while
perhaps not prohibitive, is unreasonable in light of the scant
basis in the record that might support requiring the sensor.
Our evaluation of the evidence therefore leads us to reject
the Special Master’s recommendation concerning utilization of a
breath temperature sensor or reduction in BAC results by a 6.58
percent factor as unsupported by the factual record and
unnecessary. Rather, we are persuaded that the effect of breath
temperature on BAC is theoretical at best, and that the effect,
if any, is ameliorated because the Alcotest uses both truncation
and the 2100 to 1 blood/breath ratio to calculate BAC. Because
both of these safeguards effectively underestimate BAC, any
additional subtraction to account for temperature is redundant
and unnecessary. We therefore reject the Special Master’s
finding and recommendations concerning the breath sensor and a
6.58 percent compensating reduction.
D. Acceptable Tolerance Analysis
The Special Master recommended that the firmware be revised
to correct the acceptable tolerance among the reported results
so as to permit results to be accepted if they are within plus
or minus 0.005 percent BAC or plus or minus five percent of the
the equipment must be taken out of service and moved to a
central location for these purposes, resulting in the need for
arrestees to be transported to an adjoining municipality for
testing while the equipment is undergoing routine maintenance.
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mean for the four readings, whichever is greater. (Special
Master’s Finding 10). Although the State does not dispute the
need to correct future firmware versions, both the
recommendation of the Special Master as to the acceptable
tolerance range and the effect of this determination upon
pending cases require our analysis.
The acceptable tolerance question raises a variety of
concerns, including its implications for the validity of any
particular test result, our confidence in the accuracy and
reliability of a specific Alcotest unit, the need for
performance of a third test on any particular test subject, and
the appropriate method by which to assess tolerance in light of
changes to the quantification of the per se violation in recent
years. We address each of these difficult issues in turn.
1. Doubled Tolerance Range in Firmware version 3.11
Tolerance is the range of any set of measurements that is
accepted as being representative of a true reading. Precision
and accuracy can be ensured by requiring the application of a
narrow range for tolerance. Conversely, the wider the
acceptable tolerance between reported results, the lower our
confidence in the accuracy of any of the reported results.
Therefore, for purposes of permitting any device to be utilized
for proof of a per se violation of the statute, the acceptable
tolerance is of fundamental importance.
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As a matter of historical perspective, we first considered
the question of acceptable tolerance ranges in Romano, supra.
There, as a part of our evaluation of whether the test results
obtained from two breathalyzer models which might have been
affected by radio frequency interference (RFI) could be
admissible, we accepted the 0.01 percent BAC standard as a
scientifically reliable tolerance range, based on the opinions
of two experts who so opined, see Romano, supra, 96 N.J. at 86.
At the time, the statute created a per se offense for any person
whose BAC was 0.10 percent or greater, see id. at 78. As we
articulated the tolerance analysis in Romano, “admissibility is
satisfactorily established . . . [i]f the breathalyzer results
consist of two tests or readings within a tolerance of 0.01
percent of each other . . . .” Id. at 87-88. The point, of
course, was that if a breathalyzer that might be influenced by
RFI could nevertheless read two separate breath samples with
results within this range, we would presume those results were
unaffected by external influences and, therefore, valid.
After our decision in Romano, the 0.01 percent BAC
tolerance range became the benchmark against which all
breathalyzer results, not just those from RFI-susceptible
models, were tested for general reliability and accuracy. In
Downie, we again referred to the 0.01 percent BAC tolerance
range as a benchmark for reporting accurate results. See
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Downie, supra, 117 N.J. at 455. Although we did not
independently evaluate the continuing validity of that tolerance
range, we adhered to it as a part of our evaluation of the
overall scientific accuracy and reliability of the breathalyzer.
Indeed, we have never departed from that standard and have not
previously been called upon to consider any different
articulation of that accepted range of tolerance.
Prior to the trial court’s decision in Foley, the tolerance
range for the Alcotest was fixed by the software to be 0.01
percent BAC or a range of ten percent for all samples. That
range was determined by Brettell when the Alcotest program was
first devised. The range, however, was tested by reference to
the arithmetic mean, the effect of which halves the expression
of the range. In addressing the challenge to the tolerance as
being inconsistent with Romano, the court in Foley described the
tolerance as fixed in the Alcotest in somewhat different terms.
The Foley court explained that our long-accepted standard of a
required tolerance of 0.01 percent BAC between two breath
samples was the “strictest standard in the United States,” and
concluded that, as applied to the four results derived by
Alcotest, “the additional parameter of +10 [percent] is within
the tolerance considered acceptable for reliable results by the
scientific community.” Foley, supra, 370 N.J. Super. at 357.
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In so articulating the tolerance range, however, the court
did not simply re-articulate a long-accepted tolerance,
expressing it as a percentage rather than an absolute. Nor did
it accurately express the tolerance used by the device, an
earlier version of software known as Firmware version 3.8, in
which the tolerance was expressed in alternate terms. Rather,
the court, inadvertently, we think, endorsed a tolerance range
that effectively doubled that which we have allowed.
There are several considerations arising from this expanded
tolerance that are now before us. First, the use of a
percentage tolerance range tends to permit readings at higher
levels that are wide of the previously accepted 0.01 percent BAC
standard. This might lead to results that are, in and of
themselves suspicious in terms of their intrinsic reliability.
That is to say, although for purposes of guilt, it might not
matter whether we accepted two test results that were within ten
percent but beyond 0.01 percent BAC of each other, those results
might raise a concern about the overall reliability of the
particular machine. Second, however, use of an absolute rather
than a percentage might arguably disadvantage subjects whose
test results are at the lower end of the range by accepting test
results that are, by percentage, more widely separated and that
would be rejected as out of tolerance were a percentage analysis
applied.
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Third, in some measure the amendments to the statute and
the creation of new per se offenses, not extant when we
considered the acceptable tolerance in Romano and Downie, makes
our evaluation of this issue more complex. In the abstract,
tested against a statute that only utilized one per se test for
drunkenness, namely, 0.10 percent BAC, our acceptance of the
single test for acceptable tolerance was well supported in the
scientific record. The question, in light of the lowered per se
limits now in force, is what we should demand in terms of
precision to demonstrate accuracy and support admissibility.
Taking into account these considerations, we turn to an
evaluation of the evidence in the record concerning tolerance
and its significance. At present, assuming the subject has
provided an otherwise acceptable sample, the Alcotest reports
the EC and IR results of the first sample. The device is
programmed to accept the EC and IR test results from a second
sample only if those results are within its programmed tolerance
of the EC and IR results from the first breath sample. If the
second-sample results are not within the tolerance, the Alcotest
will record the results, but require a third sample.
For Firmware version 3.8, used in the Alcotest program at
issue in Foley, Brettell testified that he set the tolerance in
accordance with the breathalyzer tolerance expressed in Downie.
He interpreted the Downie standard to mean that two breath tests
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had to be within 0.01 percent BAC of each other when the mean
BAC measured below 0.10 percent BAC, which was the per se level
when Downie was decided. Brettell testified that,
notwithstanding the fact that the Court never varied from the
0.01 percent BAC standard, he assumed we intended a tolerance of
ten percent for BAC values above 0.10 percent BAC. Therefore,
Firmware version 3.8 was programmed to accept the second breath
test if there was no more than 0.01 percent BAC or ten percent
between the highest and lowest readings.
Notwithstanding Brettell’s acknowledgment that he knew that
the Foley statement about tolerance was mathematically
incorrect, he concedes that following the decision in Foley, the
State directed Draeger to reprogram the device so as to take
advantage of that far wider, effectively doubled, range for
tolerance. He explained that he did so to make the test conform
with programs in other states and to address criticism of the
relative frequency with which the device in Foley rejected
results for being out of tolerance and required the
administration of a third test. Brettell believed that taking
advantage of the court-sanctioned wider tolerance would
alleviate a similar challenge in the future. The State concedes
that Firmware version 3.11 did precisely that, creating a range
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of either plus ten percent or minus ten percent of the mean, for
a doubled tolerance.
28
2. Expert Testimony
Although New Jersey, prior to the introduction of Firmware
version 3.11, in compliance with our decision in Romano and
Downie, adhered to the 0.01 percent BAC tolerance standard,
there is no general agreement among the states as to what
standard is acceptable. Many states other than New Jersey
utilize the 0.01 percent BAC tolerance standard as well, but the
National Safety Council, for example, recommends a tolerance of
no more than 0.02 between the highest and lowest readings.
One of the State’s witnesses, Rod Gullberg, testified about
his previously published conclusions on tolerance measurement.
He opined, therefore, that the Firmware version 3.11 tolerance
is too broad. See R.G. Gullberg, Determining an Appropriate
Standard for Duplicate Breath Test Agreement, 39 Can. Soc’y
Forensic Sci. J. 15, 23 (2006). Instead, he recommended using
plus or minus five percent of the mean of the four tests. He
28
There is, in addition, a further distinction that is a subtle
one. Using a range, whether expressed in absolute or
percentage-based terms, when comparing two numbers as in Romano,
is not the same as expressing the same range for tolerance among
four numbers as evaluated against their arithmetic mean.
Technically, Firmware version 3.11 is a good deal more
sophisticated in its measure for tolerance. In fact the device
tests tolerance as the greater of plus or minus ten percent of
the mean of all four results or plus or minus 0.01 percent BAC
of that mean.
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estimated that if the firmware were changed to utilize this
tolerance, the number of people who would have to submit
additional samples would increase by approximately five percent.
That estimate is mirrored by a comparison of the data from
Pennsauken, in which Firmware version 3.8 was used, with the
data from Middlesex County, in which Firmware version 3.11, with
its doubled tolerance, was used.
Another of the State’s witnesses, Hansueli Ryser, explained
that if New Jersey used a tolerance of plus or minus 0.005
percent BAC, or plus or minus five percent, of the mean,
whichever is greater, then for mean measurements below 0.10
percent BAC, the acceptable tolerance would be plus or minus
0.005 percent BAC. As an example, if a person had a mean
alcohol concentration of 0.08 percent BAC, the tests would be in
tolerance if they fell between 0.075 and 0.085 percent BAC.
29
For mean concentrations above 0.10 percent BAC, the relevant
tolerance would be plus or minus five percent.
Brettell testified that he planned to “revisit” the
tolerance because it had caused “so much litigation.” He
testified that the 0.02 percent BAC National Safety Council
29
The significance of tolerance, as this example demonstrates,
is related to the truncation procedure. A test subject with
results ranging from 0.075 to 0.085 would not be guilty of the
per se violation because the machine must report the lowest
truncated value, here 0.07 percent BAC. By the same token,
however, the machine could not reject these results and subject
the individual to a third test, with a potentially higher BAC.
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recommendation might be the easiest to adopt, but he preferred
the use of a combination of a set value and a percentage because
the percentage would account for scientifically defensible wider
tolerance at very high values. Overall he favored
30
plus or
minus 0.005 percent BAC from the mean or plus or minus five
percent of the mean, whichever was greater.
3. Future Firmware Revisions
Although we have never considered the use of a tolerance
other than the absolute 0.01 authorized in Romano, intervening
legislative enactments require us to address the continuing
validity of that standard. At the time that we decided the
question of acceptable tolerance in Romano, there was but one
per se standard for drunk driving prosecutions, namely, the 0.10
percent BAC. Since that time, however, the Legislature has
reduced that per se limit to 0.08 percent BAC, while maintaining
the 0.10 percent BAC standard for enhanced punishment.
31
The
30
We are constrained to observe that, for purposes of assessing
scientific accuracy and therefore admissibility in evidence as
proof of a per se violation, “ease” and “simplicity” are
irrelevant. Similarly, a test based on whatever the current
director of the program “favors” is unlikely to withstand
scrutiny.
31
In addition, the separately-adopted per se limits that apply
to commercial drivers (0.04 percent BAC) and individuals under
the legal drinking age (0.01 percent BAC) are entirely new.
Although the effect of the absolute measure of tolerance might
have less validity when applied to these separate offenses, it
is not challenged here and we do not address it.
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issue is what measure of tolerance comports with scientifically
reliable, and therefore admissible, results.
Expressing the tolerance in terms of the greater of the
absolute or a percentage of deviation from the mean authorizes,
in effect, a wider range of tolerance at the higher readings.
There is, in this record, evidence that demonstrates to our
satisfaction that at the higher readings, all measures of BAC
are somewhat less precise than they are at the lower ranges. As
a result, the wider tolerance expressed by a percentage
deviation from the mean applied to the upper ranges of possible
readings does not suggest that the device is not working
properly. At the lower readings, in contrast, a deviation
outside of the tolerance limit we have traditionally required
most assuredly will raise a question about the functioning of
the particular device.
Our evaluation of the record compels us to conclude that,
even in light of the lowered overall per se limit adopted since
Romano, the continued use of the absolute 0.01 percent BAC
standard, coupled with the use of a like range of tolerance
expressed as a percentage deviation from the mean, is both
scientifically appropriate and consistent with our understanding
of the intention of the Legislature in adopting these per se
limits.
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To the extent that Firmware version 3.11 took advantage of
an explanation of the tolerance range in Foley that
inadvertently doubled the permissible range, however, it cannot
be sustained. We therefore direct that for future firmware
revisions, the device be programmed to fix the tolerance range
to be plus or minus 0.005 percent BAC from the mean or plus or
minus five percent of the mean, whichever is greater, in order
to ensure scientifically accurate, admissible test results.
4. Application to Pending Prosecutions
Our inquiry, however, cannot end there. There is stark
evidence in the record, based on a comparison of the data from
the Pennsauken program, in which the device with Firmware
version 3.8 and the appropriate tolerance was utilized, with the
data collected in Middlesex County, using Firmware version 3.11
and its doubled range, that the intervening expansion of the
tolerance range resulted in tests being deemed acceptable by the
device that cannot meet the tolerance range we have required.
In fact, the data demonstrates that precisely the effect that
Brettell desired, namely, reducing the frequency of out of
tolerance readings that required third samples, was achieved to
the point of apparent elimination. The Special Master, while
recommending that the software be revised for future uses to
reflect his analysis of acceptable tolerance ranges, did not
regard the State’s adoption of a different and widely expanded
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tolerance to be problematical for pending prosecutions. The
State urges us to adopt this finding that the doubled tolerance
had no effect on any defendant’s substantive rights. We
disagree.
The simple fact is that the tolerance range is a critical
component in our conclusion that this or any other device
correctly and accurately measures breath alcohol and converts
that data into a scientifically reliable, accurate BAC analysis.
Our acceptance of those results for purposes of supporting,
without more, a criminal conviction, must be based on our
conclusion that the results are reliable and accurate. The use
of a doubled tolerance, however, deprived some percentage of
test subjects of a third, and perhaps dispositive, test. At the
same time, it undermines our confidence in the accuracy of the
reports of those tests that fall outside of the range that we
have demanded be utilized as a prerequisite for scientific
accuracy and that undergirds admissibility in a criminal
proceeding.
It is easy enough to identify those individuals for whom a
third test should have been given. To be sure, if we had the
third test data for those defendants, some of them would achieve
a result within the authorized tolerance and thus be shown to
have violated the per se limits. But just as surely, there may
be others for whom a third test would have yielded a result
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still further out of range so as to, perhaps, call the accuracy
of the particular machine into question. And it is even
possible that there might be a defendant for whom a third test
would result in a reading that would meet the test for tolerance
but would exonerate that individual.
The suggestion that we permit those test results that are
outside of the range for tolerance to be utilized for purposes
of a per se conviction unfortunately is, simply put,
unacceptable. Zealousness in ridding our roads of drunk drivers
cannot overcome our ordinary notions of fairness to those
accused of these offenses. Therefore, we are constrained to
direct not only that future firmware updates utilize the
tolerance computation that we have concluded is acceptable, but
that all pending prosecutions include an evaluation of whether
the two reported test results exceeded this acceptable
tolerance.
Any AIR that reports results from tests of only two breath
samples, therefore, must be analyzed to determine whether its
results are within our accepted tolerance by use of a
mathematical calculation. The appropriate calculation for this
purpose will consist of applying the following formula: (a) add
the IR and EC results given for the first breath sample to the
IR and EC results for the second breath sample; (b) divide the
sum calculated in (a) by 4 to derive the arithmetic mean; (c)
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compute the upper limit of tolerance by taking the larger value
of the mean multiplied by 1.05 or the mean plus 0.005 percent
BAC; (d) compute the lower limit of tolerance by taking the
smaller of the value of the mean multiplied by 0.95 or the mean
minus 0.005 percent BAC; (e) if all of the IR and EC results of
the two samples fall within the upper and lower limits of the
tolerance range, the AIR is valid, but if any of the results
fall outside of the tolerance range, the AIR is not valid.
Although we have prepared a worksheet that is attached to
the order that accompanies this opinion for use in all
prosecutions pending reprogramming of the device, two examples
will, we think, illustrate the way in which the formula should
be utilized in practice to differentiate between an AIR that
reports results within tolerance and one that does not. If, for
example, a defendant’s first breath test sample yielded an IR
result of 0.100 percent BAC and an EC result of 0.101 percent
BAC, and the second sample yielded an IR result of 0.104 percent
BAC and an EC result of 0.103 percent BAC, the calculations
would be performed as follows:
(a) first all four of the results (two IR
and two EC) would be added, in this example,
0.100 + 0.101 + 0.104 + 0.103 = 0.408;
(b) next, the arithmetic mean would be
derived by dividing that sum by four, 0.408
/ 4 = 0.102;
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(c) then the upper limit of acceptable
tolerance must be determined by comparing
the two methods for computing the range,
namely, the use of the absolute or the
percentage. This is done by computing each
separately and selecting the greater of the
two. In this example, the computation would
yield the following options: (0.102 x 1.05
= 0.1071) OR (0.102 + 0.005 = 0.1070).
Because the greater of these is 0.1071, that
will be the correct upper tolerance limit;
(d) next, the lower limit of acceptable
tolerance must be derived by comparing the
two methods for computing the range, again,
by using the absolute and the percentage
calculations.
This is done by computing
each separately and selecting the lesser of
the two. In this example, the computation
would yield the following options: (0.102 x
0.95 = 0.0969) OR (0.102 – 0.005 = 0.0970).
Because the lesser of these is 0.0969, that
will be the correct lower tolerance limit;
and
(e) finally, by comparing all four of the
reported test sample results (0.100, 0.101,
0.104,
0.103)
against
this
accepted
tolerance range of 0.0969 to 0.1071, it
becomes plain that, in this example, the AIR
is valid because all four test results fall
within the accepted tolerance range.
Because the Firmware version 3.11 utilized a doubled
tolerance range, there will be AIRs that will not meet the test
for tolerance that we have deemed to be permissible. We
therefore provide a further example to illustrate the
calculations relating to an AIR that would be out of tolerance
under this standard and, therefore, inadmissible in a
prosecution. If, for example, a defendant’s first breath test
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sample yielded an IR result of 0.089 percent BAC and an EC
result of 0.080 percent BAC, and the second sample yielded an IR
result of 0.091 percent BAC and an EC result of 0.084 percent
BAC, the calculations, which would be performed in the same
manner, would yield a different outcome, as follows:
(a) first, all four of the results (two IR
and two EC) would be added, in this example,
0.089 + 0.080 + 0.091 + 0.084 = 0.344;
(b) next, the arithmetic mean would be
derived by dividing that sum by four, 0.344
/ 4 = 0.086;
(c) then the upper limit of acceptable
tolerance must be determined by comparing
the two methods for computing the range,
namely, the use of the absolute or the
percentage. This is done by computing each
separately and selecting the greater of the
two. In this example, the computation would
yield the following options: (0.086 x 1.05
= 0.0903) OR (0.086 + 0.005 = 0.0910).
Because the greater of these is 0.0910, that
will be the correct upper tolerance limit;
(d) next, the lower limit of acceptable
tolerance must be derived by comparing the
two methods for computing the range, again,
by using the absolute and the percentage
calculations.
This is done by computing
each separately and selecting the lesser of
the two. In this example, the computation
would yield the following options: (0.086 x
0.95 = 0.0817) OR (0.086 – 0.005 = 0.0810).
Because the lesser of these is 0.0810, that
will be the correct lower tolerance limit;
and
(e) finally, by comparing all four of the
reported test sample results (0.089, 0.080,
0.091,
0.084)
against
this
accepted
tolerance range of 0.0810 to 0.0910, it
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becomes plain that, in this example, the AIR
is invalid because the first breath sample’s
EC result (0.080) does not fall within the
accepted tolerance range.
The use in Firmware version 3.11 of the doubled tolerance
range, which we have rejected, requires that all AIRs that
report results of only two breath samples be tested for validity
against the tolerance range we have accepted. Therefore, in all
prosecutions stayed by our January 10, 2006 Order, the State
shall review the BAC results as reported in the AIR and shall
calculate whether those results fall within tolerance, and the
court shall review those calculations and make them a part of
the record. In those cases in which this review reveals that
the results fall outside of the acceptable tolerance, the AIR
cannot be deemed to be sufficiently scientifically reliable to
be admissible and it shall not be admitted into evidence as
proof of a per se violation.
IX. Source Code Remand
We turn, then, to a series of issues that arose following
the supplemental remand for evaluation of the source code. Not
all of the firmware issues we must address are disputed, but our
review of the record has identified issues that bear on the
extent and manner in which existing AIR results may be utilized
in pending prosecutions. We begin with the software-based
questions that are in dispute.
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A. EC Readings and Fuel Cell Drift Algorithm
One of the most controversial findings that came out of the
second remand proceedings, during which the parties were
afforded the opportunity to undertake an analysis of the source
code that is the heart of the operation of the Alcotest device,
related to the EC readings. During the proceedings, the Special
Master summoned Brian Shaffer, a Draeger employee responsible
for the code and for implementing changes to the New Jersey
Firmware since the Foley decision, to testify. Near the end of
his testimony, Shaffer revealed that Firmware version 3.11
utilizes a compensating algorithm to account, in part, for a
phenomenon known as fuel cell drift.
As Shaffer explained it, the EC reading is obtained by
passing an electrical current through a small sample of the
breath that has otherwise been captured for IR testing in the
cuvette. The fuel cell that creates the electrical charge
reacts in the presence of alcohol. The reaction of the fuel
cell can be represented graphically as a curve and the
percentage of alcohol in the breath is measured by calculating
the area under the curve mathematically. As fuel cells age, the
area under the curve that expresses the same breath alcohol
content is unchanged, but the shape of the curve itself changes
from a high sharp peak to a longer, flatter one. As a matter of
mathematical computation, the area being measured is the same
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even though the curves, were they plotted graphically, would
appear to be different when observed visually.
According to Shaffer, the flattening of the curve is caused
by the aging of the fuel cell, which reacts more slowly and with
less intensity to the same amount of alcohol than when the fuel
cell is new. This phenomenon, known as fuel cell drift, does
not actually alter the accuracy of the EC measurement. However,
because the fuel cell begins to react more slowly to the
presence of alcohol as it ages, a portion of the area under the
curve that is the basis for the alcohol measurement is not
captured during the time when the Alcotest EC data is collected.
Instead, a portion of the end of the curve is, in essence, cut
off, resulting in a lower than accurate measurement.
Because fuel cell drift is a known scientific phenomenon
that would otherwise result in an inaccurate underreporting of
the percentage of alcohol in the test subject’s breath, Draeger
added a compensating algorithm into the firmware. The EC fuel
cell drift algorithm, therefore, is intended to capture a
portion of the missing data and, in theory, create a more
accurate result as the reported EC reading. The algorithm,
however, does not attempt to quantify the missing area under the
curve per se, but instead attempts to compensate in part for the
lack of complete data arising from the EC measurement. In the
event that fuel cell drift is detected during the control test,
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the algorithm mathematically increases the EC reading that is
reported by up to twenty-five percent of the difference between
the IR and EC readings from the tests of the subsequent breath
samples.
The compensating algorithm is not routinely applied, but
only functions if the appropriate preconditions are met. The
device, in performing the control test, compares the EC and the
IR readings and accurately reports those results. Because the
control test utilizes a known test solution to ensure that the
device is functioning properly and that it accurately reads a
solution of a known percentage of alcohol, fuel cell drift can
be detected from the control test’s results. If the device
detects drift, the algorithm will adjust the EC measurement
standard, which, in turn, will slightly increase the reported EC
results for the test subject’s breath sample to account for the
fuel cell drift.
The discovery of the EC fuel cell drift algorithm in the
source code prompted the Special Master to conclude that more
frequent re-calibration of the devices with replacement of fuel
cells that had become “depleted” would reduce reliance on the EC
fuel cell drift algorithm and, therefore, increase the accuracy
of the readings. The State objects to this proposal as
unnecessary and burdensome, arguing that its current program of
annual calibration is sufficient.
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Defendants, on the other hand, raise several challenges to
this EC algorithm, both in theory and in practice. First, they
argue that it demonstrates that Draeger’s claim that the device
uses two completely independent measurements for breath alcohol
is false. Second, they argue that it demonstrates that the
device is simply not accurate in any sense. Third, they argue
that the algorithm, which they attack as having been hidden from
them throughout the initial remand proceedings, is evidence that
the software may be utilizing other hidden mechanisms that might
inflate readings so that the accuracy of the results can never
be reliable.
We do not share either the State’s or defendants’ concerns.
The record reflects that a semi-annual inspection and
recalibration program recommended by the Special Master is
consistent with the manufacturer’s recommendations. At the same
time, it provides a useful safeguard by affording a more regular
opportunity to evaluate and replace aging fuel cells. We
discern no reason to permit the State to continue to adhere to
its program of annual recalibration, particularly in light of
the concerns raised as to the utilization of a compensating
algorithm in the interim.
However, we do not find merit in defendants’ concerns about
the EC algorithm or its use. There is sound scientific evidence
that supports the conclusion that fuel cells begin to age as
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soon as they are put into service and that fuel cell drift is
inevitable. But there is equally ample support for the
proposition that even as the intensity of the peak demonstrated
by the EC evaluation of the sample diminishes over time, the
reactive effect overall (that is, the area under the curve being
calculated) does not. Instead, the time within which the test
is performed simply truncates the EC reading before all of the
otherwise appropriate data can be generated. Theoretically, one
could, perhaps, program the machine to calculate the missing
area based on a presumed regularly-shaped curve. Although that
might even be a more accurate method of supplying the missing
data, it would not, in the end, be as advantageous to defendants
as is the minor upward adjustment that the algorithm effects.
Indeed, because the device will not generate a result that can
be utilized if the readings are out of tolerance, the algorithm
alters the EC result in an amount that, we are confident, cannot
fairly be seen as convicting the innocent.
Nor do we consider the fact that the algorithm was unknown
until Shaffer revealed it or the fact that neither of the
independent experts who evaluated the source code recognized its
existence to be indicative of any broader shortcoming in the
firmware. Two reasons support this result. First, in “black
box” testing, the machine performed accurately by demonstrating
the ability to identify the percentage of alcohol in known
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solutions within the applicable tolerance parameters. Were
there a fundamental defect in the source code, one would expect
that the machine would not be able to perform in this fashion.
Second, the evidence in the record demonstrates that the EC
reading is not always less than the IR reading either during
control tests or in actual testing. If, as defendants fear, the
EC is always being artificially inflated to approximate, if not
absolutely match, the IR, one would expect to find only results
in which the IR was the higher reading. That, however, is
simply not the case, as there are numerous examples of readings
from both actual and control tests in which the EC reading is
higher than the IR. We cannot therefore conclude that the
source code includes hidden commands to artificially inflate the
EC to raise it to the level of the IR.
Finally, however, defendants argue that the existence of
the EC algorithm calls into question all of the testimony
received during the original remand proceedings. They point out
that several witnesses referred to the fact that the Alcotest
uses two independent testing methods as proof of its superiority
and as support for their opinions that the device is
scientifically reliable and accurate. They further point to
Draeger’s representations to the State that this technology made
the device superior to others which was essentially accepted by
the Special Master. Although the use of this algorithm
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certainly undercuts the accuracy of the marketing claims made by
Draeger, it does not, in and of itself, alter the support in the
record for the conclusion by the Special Master about the
general scientific reliability of the device.
B. Weighted Averaging Algorithm
During the supplemental remand proceedings, source code
analysis revealed the use of a calculation referred to as the
weighted averaging algorithm. In short, this algorithm relates
to the manner in which the IR result is calculated. This
technology measures the effect of breath alcohol on an infrared
signal. In order to calculate the result, the device is
programmed to calculate a reading every quarter of a second,
based on measurements taken every 8.192 milliseconds. The
reported IR result is then computed by means of the algorithm,
which places proportionately greater weight on the later
measurements than on the earlier ones. In operation, the
algorithm directs that the first two readings are averaged, and
that value is averaged further with each successive reading.
The effect is that the measurement is calculated to place
greater and greater weight on the readings taken as the sample
of breath continues.
Defendants attack the use of this methodology as
scientifically unsound. They point out, correctly, that it is
neither an average nor technically even a weighted average.
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They further assert, however, that the use of this algorithm is
evidence of a scientifically unsound device operated by
inherently flawed software. We do not find merit in these
arguments. To be sure, the calculation is not an average in
accordance with the strict mathematical definition. It is,
however, in a more general sense, a calculation designed to
accord greater weight to that part of the breath sample that
enters the cuvette at the end. In doing so, it gives greater
weight to the breath that, inevitably, includes the deepest air
drawn from the lung. It therefore focuses the analysis on the
portion of the breath sample that most accurately represents the
subject’s BAC. In this manner, the weighted averaging algorithm
seeks to achieve a more accurate result. We discern nothing in
defendants’ attacks on this weighted averaging algorithm that
persuades us that it is inherently flawed or that it leads to an
inaccurate measurement of BAC.
C. Buffer Overflow Error
During the proceedings on remand, Draeger’s expert, Bruce
Geller, identified a significant flaw in the program’s source
code that, in limited circumstances, can lead to an inaccurate
reported BAC test result. Following Geller’s testimony,
Draeger’s programmer, Shaffer, disputed many of the conclusions
proffered by defendants’ experts, but he acknowledged and
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explained the buffer overflow defect, admitting that he was
responsible for the inclusion of this error in the code.
The buffer overflow error is only relevant when a test
subject, based on the IR and EC results of the first two breath
samples that fall outside of the accepted tolerance, is given a
third test.
32
Whenever that occurs, there are six results (an IR
and EC value for each test) that must be evaluated. According
to Shaffer, an array of temporary variables is declared in order
to calculate the blood alcohol level from the six readings. The
available Alcotest array, as currently programmed, however, is
only large enough for four readings, and therefore does not hold
the second and third EC values. For purposes of this
calculation, the third EC value is stored, accurately, in a
previous memory location, but the second EC value is altered
because of the buffer overflow error. In a situation in which
there are six readings, if the second EC result is the lowest
value, the device will effectively overlook it and the
calculated BAC level will be incorrectly reported instead as the
next lowest of the six readings.
32
Although the frequency with which this error occurs has not
been quantified with precision, the experience in Pennsauken
suggests that, absent the State’s adoption of an expanded
tolerance level between the two initial sets of results in NJ
Firmware version 3.11, and its resultant diminution of third
test results in Middlesex, one might estimate that as many as
five percent of all test subjects would ordinarily have results
that would require a third breath sample.
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Shaffer testified that although the buffer overflow error
must be corrected,
33
the previously recorded AIRs correctly
display the values for each of the six readings. According to
Shaffer, the only error on the AIR will be its report of the
BAC. Whether the buffer overflow error affected the reported
result, however, is not immediately obvious from looking at the
AIR. Instead, a set of calculations, referred to by all of the
parties as the Shaffer formula, must be employed to determine
whether the buffer overflow error occurred, and, if so, what the
proper BAC should have been.
The Special Master, finding Shaffer’s candor to be
impressive and his testimony “completely reliable,” concluded
that the buffer overflow error is a “real” one that must be
corrected. Pending any corrective action, he recommended that
the use of all AIRs that report three breath samples either be
prohibited as a basis for prosecution or, in the alternative,
that Shaffer’s corrective formula be applied.
Defendants argue that the Special Master’s solution is
inadequate because of the effect of the widened tolerance which
led to fewer third tests, but they do not otherwise suggest that
either of his proposed alternatives is inappropriate for AIRs
reporting third test results. The State, although conceding
33
He explained that he has not done so because of the pendency
of this litigation.
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that the error is one that must be corrected, argues that there
is no basis on which to discard previously reported results in
light of the ability of the courts to apply the corrective
formula to the reported results.
There is no doubt in the record that the Firmware version
3.11 source code includes an error, which may cause the BAC to
be incorrectly reported in cases when a third breath sample has
been taken.
34
The record, however, makes clear that the error
does not in any way alter the accuracy of the reported results
for each test of each breath sample, but instead lies in the
manner in which the device reads and evaluates that data to
calculate the lowest BAC, which then may be both inaccurately
calculated and reported.
Were we without confidence in the accuracy of the
individually reported results, we would be constrained to agree
with the Special Master’s suggestion that we reject all of the
tests in which a third sample was taken. However, in light of
the fact that there is no evidence in the record on which to
34
We recognize, of course, the force of defendants’ argument
that the severity of the impact of this error has been masked by
the State’s unilateral decision to double the tolerance and
therefore to reduce the circumstances in which a third test
would be permitted. Our decision to address the extant third
test result cases does not in any way, in our view, alter the
separate manner in which we have elected to deal with the
problem presented to us by the increased tolerance range. We
instead have addressed that aspect of the record separately, see
Section VIII.D., supra.
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conclude that the six readings will themselves be inaccurate, we
find no ground on which to order a resolution so drastic.
Instead, we conclude that each AIR that includes three
breath tests will be admissible as evidence of an accurate BAC
reading only after application of the Shaffer formula
35
to ensure
the correct calculation of the lowest possible result and
reading. We do so, however, with two added cautions heretofore
unspoken. First, a third sample is taken only when the four
readings from the first two samples are outside of the accepted
range of tolerance. As a result, where there are three breath
samples, the device does not simply identify and report the
lowest of the six reported readings. Instead, it must first
evaluate the six readings to determine which of the samples fall
within the accepted tolerance and then determine, through
truncation, which is the lowest acceptable reported result.
Calculating the correct result in the face of the buffer
overflow error is therefore not a matter of visually inspecting
the reported results and selecting the lowest of them. Rather,
the use of the formula is required to ensure that the apparently
lowest result is also the lowest acceptable one in accordance
35
Although referred to as the Shaffer formula, the mechanism for
the correct determination of whether a buffer overflow error has
occurred and, if so, the calculation of the correct BAC is
embodied in a worksheet that we have revised to apply the
correct tolerance range and have appended as Worksheet B to the
Order that accompanies this opinion for use in all proceedings
pending revision of Firmware version 3.11.
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with the tolerance range.
36
Second, we note that in devising the
formula, Shaffer continued to utilize the tolerance calculation
reflecting the doubled range. Because we have rejected that
range as unacceptable, we have revised the formula, in the form
of a worksheet, and have appended it to the Order that
accompanies this opinion in its corrected format.
The use of this methodology, however, will require that,
pending appropriate correction to the firmware, each AIR with
three test sample results must be separately reviewed and that
calculations must be performed and verified for accuracy in
accordance with Shaffer’s formula.
37
We therefore direct that
the State undertake to review all such AIRs, perform the
calculations to identify the correct BAC in accordance with the
Shaffer formula as we have adopted it, and provide that data to
the court in which each matter is pending. We further direct
that the calculations be made a part of the evidence in any
36
As an example, if the results on test one were IR = 0.030 and
EC = 0.031 and the results on test two were IR = 0.085 and EC =
0.088, and the results on the third test were IR = 0.091 and EC
= 0.092, the latter tests are within tolerance of one another,
but neither of the latter tests is in tolerance with the first.
The correct BAC result, therefore, would be 0.08 even though the
results of the first test were far lower. We use this example
by way of explanation and only to highlight the need for
applying the formula.
37
The calculations based on the formula, which is set forth in a
table, appended to the Order that accompanies this opinion,
should be included as part of the record to facilitate further
review.
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prosecution, pending correction of the firmware, to facilitate
appellate review.
D. Catastrophic Error Detection
Following the remand for source code analysis, the Special
Master also recommended that the machine’s catastrophic error
detection device be re-enabled. He based his recommendation on
his findings that the Alcotest’s ability to detect catastrophic
errors, which was included in the original source code, had been
disabled from use in Firmware version 3.11 and that, if
utilized, it would ensure that the device would shut down if it
encountered such an error. Although defendants agree with the
recommendation that this device be enabled in future software
updates, they argue that the implications of the unilateral
decision of the manufacturer to disable this feature and the use
of the Alcotest without this error detection capability must
undermine any confidence in any of the results reported. The
State, although disagreeing with both the significance of the
decision to disable this detection device and with the impact it
might have had on any readings by the machine, agrees that the
firmware will be revised to re-enable catastrophic error
detection.
Our review of the record demonstrates that there is ample
support for the findings and recommendations of the Special
Master concerning this aspect of the source code. The witnesses
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were in general agreement that the absence of an operational
catastrophic error detection device is not optimal, and they
candidly conceded that in the interim, and based on these
proceedings, the feature has been re-enabled for use in other
jurisdictions. Notwithstanding that general agreement, the
experts disagreed about how the machine would respond if it
encountered a catastrophic error.
Defendants’ expert suggested that the machine might under
those circumstances create an inaccurate AIR, although he could
not explain, even theoretically, how it would do so. Apart from
that rather speculative opinion, the experts agreed that the
machine would most likely enter an endless loop of non-
productive analysis and become unresponsive. Because there is
no credible evidence in this record that an Alcotest machine
that encounters a catastrophic error would create, in reaction
thereto, an incorrect AIR, we discern no basis on which to
conclude that any of the previously-generated AIRs might
represent a test in which the machine encountered an error of
this magnitude and reacted by recording an inaccurate series of
test results. Rather, we direct that the State arrange to have
the software corrected to re-enable the catastrophic error
detection feature.
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E. Overall Firmware Reliability
As part of the analysis during the supplemental remand
proceedings, defendants’ expert opined that his evaluation of
the source code revealed thousands of programming errors. He
criticized the source code on multiple levels, arguing that the
style utilized is outdated, that the reliance on global
variables leaves too much room for executional errors, and that
the program lacks adherence to any recognizable design criteria.
In short, he opined that there are so many, and so great a
variety of shortcomings in the source code and the programming
methodology that we should conclude it is too flawed to be
relied upon to generate accurate test results.
The State and Draeger disagree. They assert that most of
the programming flaws that defendants’ expert identified are
simply stylistic programming preferences and that they do not,
in fact, represent errors in theory or in reality. They urge us
not to be misled into concluding that the source code is
inadequate for purposes of scientific reliability.
Our consideration of this matter need not be extended. In
actuality, few aspects of the firmware required our analysis and
fewer still require our intervention. Of the four major issues
-- the EC fuel cell drift algorithm, the buffer overflow error,
the disabled catastrophic error detention device, and the
weighted averaging algorithm -- only the buffer overflow error
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is capable of producing an erroneous AIR. Two of the challenged
features, the EC fuel cell drift algorithm and weighted
averaging algorithm, we have concluded, contrary to defendants’
assertions, are scientifically sound. The last of these, the
catastrophic error detection device, we have concluded should
not have been disabled but its absence was incapable of
producing an inaccurate AIR.
Our evaluation of the exhaustive record relating to the
source code leaves us confident that its errors have been
revealed. Based on that record, we do not share defendants’
larger concerns that it is likely to generate inaccurate results
simply because, from a source code writer’s viewpoint, it is
complex or prolix. There being no evidence in the record that
these asserted shortcomings are anything more than stylistic,
theoretical challenges, we decline defendants’ invitation to
require that the firmware comply with any specific programming
standards as unnecessary at this time.
X. Additional Firmware Recommendations
We next turn to a variety of issues arising from the
Special Master’s recommendations that require our attention.
Some of these matters are not in significant dispute, but our
consideration of each of them is essential to ensuring that the
Alcotest remains in compliance with our directives. Most of
these matters relate to the recommendations of the Special
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106
Master concerning the future revisions to the firmware, but some
we independently deem to be necessary based on our review and
analysis of this record. None, however, requires significant
analysis or detail.
The Special Master included a recommendation (Special
Master’s Finding 2(c)) that the firmware be locked so that only
the manufacturer or the coordinators would be able to make
changes to the firmware. Although defendants and the State
agreed with this recommendation, the NJSBA argued that it would
be more appropriate if only the manufacturer had the ability to
make changes to the firmware. In light of defendants’ continued
criticism of the programming style and lack of rigorous
programming standards used in the source code, we are firmly
convinced that the pool of individuals who are able to make
alterations to the firmware should be reduced rather than
expanded. Our concern for uniformity in the firmware compels us
to direct that the firmware be locked so that only the
manufacturer will be able to make changes to it, which changes
may then be downloaded by the coordinators.
Further, considering the numerous changes that we have
directed be incorporated into the Alcotest in order to ensure
that the device is scientifically reliable and as a prerequisite
for admissibility of its BAC readings in the future, we
anticipate that our courts will encounter AIRs from devices that
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107
utilize different versions of the firmware. We therefore
direct, for ease of analysis, that the device be programmed so
that on all future AIR printouts, the firmware version then
being utilized by the device is reported.
The Special Master also recommended that the State should
be required to publish future firmware revisions and that notice
of all such future revisions should be given to the public in
general and to the amicus NJSBA in particular. Our analysis of
this record demonstrates, however, that this recommendation may
be insufficient. In our view, merely requiring that the parties
or the NJSBA receive notice of future revisions will not be
sufficient to ensure that the device is not reprogrammed in a
manner inconsistent with producing accurate and reliable results
that will be admissible in DWI prosecutions. We therefore have
concluded that this required notice, to the parties, the public
and the amicus NJSBA, of the future firmware revisions must be
sufficiently specific to identify the proposed changes in a
manner that affords notice in compliance with due process. A
generic notice to the effect that the firmware has been revised,
in light of some of the previous alterations that we today
correct, will not suffice.
38
38
We note that the parties asked this Court to appoint an
independent software house to be responsible for any future
reviews of the Alcotest source code. We decline to do so at
this time, and will determine that issue should there be a
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108
The Special Master also recommended that the State provide
Alcotest training for defense attorneys and their experts
similar to that provided for operators and coordinators. The
State, understandably, objected to this recommendation and urges
us to reject it. Although we reject it in part, defense
attorneys should not be left without any means of learning about
the device or its operation. Rather, we deem it to be in the
interests of justice that some form of training be made
available to defense attorneys to enable them to better prepare
to represent their clients. However, we agree that the State
should not be burdened with this responsibility. We therefore
direct that Draeger make Alcotest training, substantially
similar to that provided to Alcotest operators and coordinators,
available to licensed New Jersey attorneys and their designated
experts. The training shall be offered at regular intervals and
at locations within the State of New Jersey, at a reasonable
cost to those who attend.
XI. Requirements Prior to the Admissibility of Alcotest Evidence
Our analysis of the general scientific reliability of the
Alcotest is grounded, in part, on our expectation that there
will be proof that the particular device that has generated an
AIR being offered into evidence was in good working order and
challenge in the future to the scientific reliability of the
Alcotest based on future firmware revisions.
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109
that the operator of the device was appropriately qualified to
administer the test. This requirement that the test results be
supported by foundational proofs for admissibility has been part
of our jurisprudence since we decided Romano. There we demanded
that, as a precondition for admissibility of the results of a
breathalyzer, the State was 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. Romano, supra, 96
N.J. at 81.
In matters relating to the Alcotest, the same general
considerations that gave rise to these requirements must, of
course, apply. In an effort to address these concerns, the
Special Master recommended that certain documents, which he
referred to as the “foundational documents,” be produced during
discovery and that they be admitted into evidence as part of the
State’s case-in-chief.
39
The documents in question can be
described as follows: (1) Calibrating Unit, New Standard
Solution Report, most recent change, and the operator’s
39
Technically, in his initial report, the Special Master only
suggested that these documents be admitted into evidence in
cases in which the defendant was not represented by counsel. He
amended that recommendation in his supplemental report to extend
it to all prosecutions, without regard to whether the particular
defendant was represented by counsel or not. Regardless of
that, the arguments raised by the State as to this requirement
have not been altered.
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110
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.
Defendants, although not conceding the scientific
reliability of the Alcotest device, generally or otherwise, and
the NJSBA, agreed with the Special Master that the State should
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111
be required to produce all of these documents as part of routine
discovery. In addition, in their initial briefs, they also
agreed that admitting these documents into evidence in all
prosecutions based on Alcotest results is essential. In
response to our request for further briefs directed to the
admissibility of these documents, defendants have altered their
position, contending that the documents can only be admitted
into evidence if accompanied by testimony from a witness who may
be cross-examined about the statements included within them.
The amicus NJSBA has argued that testimony from the
operator, the officer who performed the control solution change,
and the coordinator who calibrated the machine, should be
routinely required. The amicus ACDL charted a middle course.
They suggested that testimony from the coordinator should be
required. Nevertheless, they conceded that if the Court
concludes that the device is generally scientifically reliable,
it would serve no purpose to require a witness to testify about
the reports, generated by the device itself, that evidence its
good working order.
The State disagreed in part with the Special Master’s
recommendations in its initial and supplemental briefs.
Although representing that all of these documents are and will
continue to be routinely produced in discovery, the State
asserts that only four documents should be required to be
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112
admitted into evidence in support of the use of the device: the
AIR itself, which should be deemed admissible, and the required
foundational documents, which should be limited to the New
Standard Solution Report that immediately preceded the
administration of the test in question and is referred to in the
AIR, the Calibration Check Report documents, which are also
referred to in the AIR, and the documents demonstrating that the
operator was certified as an Alcotest Breath Test Operator.
40
Those alone are required, in the view of the State, because all
of the other documents included on the Special Master’s list
are, in essence, tests of tests or relate to testing standards
that are not now, and should not be in the future, required for
prosecution.
A. Confrontation Clause Implications
We begin by noting that this argument is complicated by our
consideration of the way in which the standards set forth by the
United States Supreme Court in Crawford, supra, impact on
admissibility of these proofs. We turn, then, to an analysis of
the implications of the constitutional protections identified by
Crawford and its progeny.
40
Although the State refers to this as being four documents, in
fact the State’s list includes parts of multiple categories from
the Special Master’s list and others not included in his
foundational list.
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113
The Sixth Amendment of the United States Constitution
guarantees defendants in criminal
41
cases “the right . . . to be
confronted with the witnesses against” them. U.S. Const. amend.
VI. Our own Constitution includes identical language. N.J.
Const. art. I, ¶ 10. As we have previously recognized,
defendants exercise their right to confrontation through cross-
examination. See State v. Branch, 182 N.J. 338, 348 (2005); see
also Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L.
Ed. 2d. at 199 (“reliability [of witnesses must be] assessed by
testing in . . . the crucible of cross-examination”). Although
we commented in Branch that “[a]n established and recognized
exception to the hearsay rule will not necessarily run afoul of
the Confrontation Clause,” Branch, supra, 182 N.J. at 349, the
United States Supreme Court in Crawford explained that for
certain categories of evidence, falling within a recognized
hearsay exception is not enough. Crawford, supra, 541 U.S. at
51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d. at 192-93.
Rather, the Court held that the Confrontation Clause
derives from the concern of the Framers that certain categories
41
We recognize, and our Appellate Division has recently
observed, that we have not specifically held that the
Confrontation Clause applies to quasi-criminal proceedings or
that it applies generally to DWI matters. See State v. Kent,
391 N.J. Super. 352, 387-88 (App. Div. 2007) (Stern, P.J.A.D.,
concurring). In light of the manner in which we have addressed
the potential impact of Crawford on the evidence we here
consider, we need not directly consider this constitutional
question.
Page 117
114
of evidence are the equivalent of testimony and thus only
appropriately tested through cross-examination. Ibid. For
evidence in these categories, namely, “testimonial” evidence,
only confrontation through cross-examination will suffice. As a
result, merely testing such evidence against the standards for
reliability represented by the exceptions to the hearsay rules
is insufficient to comport with the protections afforded by the
Confrontation Clause. See Crawford, supra, 541 U.S. at 60-61,
124 S. Ct. at 1369-70, 58 L. Ed. 2d at 198-99.
Although the Court “le[ft] for another day,” id. at 68, 124
S. Ct. at 1374, 158 L. Ed. 2d. at 203, the precise delineation
of what it meant by “testimonial” as opposed to “nontestimonial”
evidence, the Court identified that the “core class of
‘testimonial’ statements” includes:
“ex parte
in-court testimony or its
functional equivalent--that is, material
such as affidavits, custodial examinations,
prior testimony that the defendant was
unable to cross-examine, or similar pretrial
statements that declarants would reasonably
expect
to
be
used
prosecutorially,”
“extrajudicial statements . . . contained in
formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions,” [and] “statements that were
made under circumstances which would lead an
objective witness reasonably to believe that
the statement would be available for use at
a later trial[.]”
[Id. at 51-52, 124 S. Ct. at 1364, 158 L.
Ed. 2d. at 193 (citations omitted).]
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115
The Court further explained that this definition of testimonial
includes “ex parte testimony at a preliminary hearing [and
s]tatements taken by police officers in the course of
interrogations . . . .” Id. at 52, 124 S. Ct. at 1364, 158 L.
Ed. 2d. at 193. More recently, the Court has explained the
distinction between “testimonial and nontestimonial” as follows:
Statements are nontestimonial when made in
the course of police interrogation under
circumstances objectively indicating that
the primary purpose of the interrogation is
to enable police assistance to meet an
ongoing emergency.
They are testimonial
when the circumstances objectively indicate
that there is no such ongoing emergency, and
that
the
primary
purpose
of
the
interrogation is to establish or prove past
events
potentially
relevant
to
later
criminal prosecution.
[Davis, supra 547 U.S. at ___, 126 S. Ct. at
2273-74, 165 L. Ed. 2d at 237.]
The Crawford paradigm, therefore, begins with an analysis
of whether any particular piece of evidence is admissible as a
matter of complying with the rules of evidence. Typically, the
issue arises in the context of hearsay and the exceptions
thereto. The model adopted in Crawford then considers whether
the particular evidence is “testimonial” within the meaning of
the Confrontation Clause, for if it is, then the fact of
admissibility for purposes of the exceptions to the hearsay
rules is insufficient. See Crawford, supra, 541 U.S. at 60-61,
124 S. Ct. at 1369-70, 58 L. Ed. 2d at 198-99. That is to say,
Page 119
116
if the evidence is testimonial, reliability as defined by the
exceptions to the hearsay rules does not equate with, and cannot
substitute for, confrontation through cross-examination.
In order to correctly apply the Crawford analysis, then, we
must consider first whether the particular evidence is
admissible under the ordinary rules of evidence and then whether
it is testimonial, thus requiring the declarant to be made
available for cross-examination. Significantly, for purposes of
our analysis, the Court in Crawford noted that business records
are considered “by their nature” to be nontestimonial, see id.
at 56, 124 S. Ct. at 1367, 158 L. Ed. 2d. at 195, and therefore
their admission into evidence would not implicate the
Confrontation Clause’s guarantees. Although we recognize that
the broadest reading of that observation would permit us to end
the analysis here, we do not regard the Court’s apparent
exclusion of all business records from the Constitution’s
protective scope to be dispositive of the issues before us.
B. Application of Crawford v. Washington
For purposes of our analysis of the Crawford issue, the
foundational documents identified by the Special Master are only
part of the matters we must consider. Overall, we perceive of
three categories of documents
42
relevant to our discussion: (1)
42
The NJSBA, in its supplemental letter brief addressing the
Crawford question, suggested dividing these documents into
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117
the documents evidencing the qualifications of the operator; (2)
the documents evidencing that the machine was in working order
at the time of the test; and (3) the AIR being offered into
evidence to demonstrate
43
the results of the breath testing.
Very different levels of analysis pertain to each of these
categories.
1. Operator’s Qualifications
For Crawford purposes, we begin by noting that the parties
agree that, unlike the breathalyzer, the Alcotest is not
“operator-dependent,” meaning that the device is not subject to
influences from the operator. Instead, the record demonstrates
that the operator will play a relatively lesser role here than
has been the case in the past. His role now consists of
observing the subject to ensure that twenty minutes has passed
and to be certain that the subject has neither swallowed nor
regurgitated any substances during that time that would
categories based upon which entity could be identified as having
prepared it. We believe that our functional analysis provides
the more useful analytical framework.
43
Two issues generally relating to the AIR require comment.
First, the amicus ACDL urges us to conclude that the Alcotest is
sufficiently new that the AIR should merely be evidence of BAC.
In light of the thorough record about the general scientific
reliability of the device, we reject that suggestion. Second,
the Special Master recommended that incomplete AIRs should be
inadmissible. An AIR that is incomplete in its report of breath
test results cannot be admissible as proof of a per se DWI
violation. On the other hand, an AIR that is “incomplete” in
that it does not include added data we here order for the future
is not necessarily inadmissible.
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influence the test results; inputting and verifying the accuracy
of the identifying information needed to start the sequence;
changing the control solution if the machine alerts him to do
so; attaching a new mouthpiece; reading the instructions about
how to blow into the machine; observing the LED screen and
following its prompts; and observing the subject to ensure that
he or she actually provides a sample. There are no meters to
read, no dials to turn, and if the machine detects an error, the
error is reported and no test results are derived. The
operators are not able to alter or affect the software that
governs the performance of the device and cannot fix the machine
should a repair be needed.
Even so, the Special Master recommended, and the State
concedes, that the operator should be available to testify in a
contested matter. Notwithstanding this reduced role to be
played by the operator as relates to the ultimate BAC results
reported, requiring that he or she be made available for cross-
examination is an important constitutional safeguard. We
therefore, consistent with our longstanding practice, see
Romano, supra, 96 N.J. at 90-91, can ensure that each defendant
has the opportunity to confront the witness who has potentially
relevant testimony.
44
44
It may well be that, as the use of the device becomes more
routine, some, or even most, defendants will eventually forgo
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119
It is in this context, however, that we consider the
Special Master’s requirement that the operator produce evidence
of his qualifications through a certificate or a current
operator card.
45
We perceive of no potential violation of the
right to confrontation that might arise from the admission into
evidence of these documents. Apart from the fact that these
documents fall squarely within the traditional business records
exception
46
to the hearsay rule, N.J.R.E. 803(c)(6); see State v.
Matulewicz, 101 N.J. 27, 28 (1985) (defining scope of business
record exception), and thus are presumably exempted from the
Crawford analysis entirely, see 541 U.S. at 56, 124 S. Ct. 1367,
158 L. Ed. 2d at 195, they are not testimonial within the
contemplation of Crawford. On the contrary, these supporting
documents are not testimonial because they neither establish an
element of the offense charged nor demonstrate the truth of any
fact in issue. Even were we concerned that there is some
constitutional infirmity in permitting these documents to be
cross-examination of the operator in light of the limited
information that can be achieved in that effort.
45
Technically, the Special Master included this as part of his
description of the required operator’s testimony rather than
listing it among the foundational documents. None of the
parties has voiced any objection to this requirement.
46
Although in Crawford the Court used business records as an
example of nontestimonial evidence, other courts have suggested
that the distinction is not so clear. See, e.g., Thomas v.
United States, 914 A.2d 1, 26 (D.C. 2006) (contrasting
historically limited definition of business records with current
interpretation; questioning validity for Confrontation Clause
analysis).
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120
offered into evidence, in light of the fact that the operator
will ordinarily be called to testify, all defendants will be
able to exercise their right to cross-examine the individual to
whom these documents actually pertain.
2. Foundational Documents
In addition to the requirement relating to the operator’s
credentials, however, we next consider the Crawford-based
challenge to the twelve foundational documents, relating to the
good working order of the device, that the Special Master has
recommended be produced and admitted into evidence. These
documents fall into two categories: (1) documents directly
evidencing the good working order of the machine as of the time
of the test, including: the most recent calibration record, the
most recent new standard solution report, and the certificate of
analysis of the 0.10 simulator solution used in the control
tests; and (2) documents evidencing the accuracy of the devices
used and chemical composition of the solutions used to routinely
test and calibrate the machine, including the analysis of all of
the solutions used to test linearity, the documents attesting to
the accuracy of the devices used in the simulator, and the
certificates of accuracy of the simulator and temperature
probes.
As a threshold matter, we perceive no shortcoming, from a
constitutional perspective, with respect to any of this large
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121
group of foundational documents that the Special Master
identified as prerequisites to a finding of guilt. All of the
twelve documents that the Special Master identified qualify as
business records in the traditional sense. For purposes of the
hearsay exception, we can describe all of these documents as
being records of tests of the device, or of the simulator unit
that is used to calibrate the device, or of the chemical
composition of the solutions used to either perform the control
tests or calibrate the machine. Although these are part and
parcel of ensuring that the machine is in good working order,
from the perspective of the hearsay analysis, we do not regard
them as being anything other than business records that are
ordinarily reliable. We reach this conclusion notwithstanding
the arguments raised by defendants to the effect that any
document prepared by either the State Police or Draeger, in
connection with the Alcotest, should be viewed with suspicion.
In part, defendants’ concerns pre-suppose that these documents
are similar to affidavits or include statements by their
preparers. There is, however, nothing in this record that
suggests that any of these foundational documents is subject to
manipulation by the preparer.
Nor do we reach a different conclusion on the question of
whether they fall within the ambit of that which Crawford
teaches us is testimonial and therefore requires an opportunity
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122
for cross-examination. In this, we find accord with the great
majority of the jurisdictions that have considered this, or
similar, questions relating to foundation documents for
scientific testing devices. See Bohsancurt v. Eisenberg, 129
P.3d 471, 476-77 (Ariz. Ct. App. 2006) (holding that maintenance
and calibration records for breath testing machine are routine
business records that are not testimonial); Rackoff v. State,
637 S.E.2d 706, 707, 709 (Ga. 2006) (holding that inspection
certifications are business records and are not testimonial);
People v. Kim, 859 N.E.2d 92, 93-94 (Ill. App. Ct. 2006), appeal
denied, 871 N.E.2d 60 (Ill. 2007) (holding that affidavit
certifying that device was tested is non-testimonial); Jarrell
v. State, 852 N.E.2d 1022, 1026 (Ind. Ct. App. 2006) (holding
that a breath test device certification is not testimonial);
Napier v. State, 820 N.E.2d 144, 149 (Ind. Ct. App. 2005)
(holding that inspection and operator certifications are not
testimonial); Commonwealth v. Walther, 189 S.W.3d 570, 575 (Ky.
2006) (holding that notations regarding maintenance and testing
of device are not testimonial); State v. Fischer, 726 N.W.2d
176, 181-83 (Neb. 2007) (holding that a simulator solution
certificate is not testimonial); People v. Lebrecht, 823
N.Y.S.2d 824, 826-27 (N.Y. App. Div. 2006) (holding that
calibration/maintenance report and simulator solution
certification are not testimonial); State v. Norman, 125 P.3d
Page 126
123
15, 18-20 (Or. Ct. App. 2005), review denied, 132 P.3d 28 (Or.
2006) (holding that certificates of accuracy are not
testimonial). But see Shiver v. State, 900 So. 2d 615, 618
(Fla. Dist. Ct. App. 2005) (holding that breath test affidavit,
including portion used to show that device had required
maintenance, is testimonial).
To be sure, some of these documents and certificates are
prepared by the police, but none of them relates to or reports a
past fact and none of them is generated or prepared in order to
establish any fact that is an element of the offense. See
Davis, supra, 547 U.S. at ___, 126 S. Ct. at 2273-74, 165 L. Ed.
2d at 237. The fact that they may be used to demonstrate that a
device, which was used to conduct the breath tests for a
particular defendant, was in good working order does not
transform them into evidence of an element of the offense nor
make them testimonial in the constitutional sense. We perceive
both in the Constitution itself and in Crawford, ample room for
admissibility of these foundational documents consistent with
protecting defendants’ rights.
Although we therefore conclude that they would all be
admissible within the confines of the Constitution, we will not
adopt the Special Master’s recommendation and require that they
all be offered into evidence routinely. Indeed, as the State
has correctly pointed out, many of the documents on the Special
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124
Master’s list of foundational proofs are tests of tests and,
therefore, are too attenuated to require that they be admitted
as part of the evidence. We include in that category all of the
documents relating to the working order of the simulator, the
reports of the solutions used during simulation and calibration,
the certificate of accuracy of the simulator used to calibrate
the device, and the temperature probe documents. Although, as
all parties agree, these documents should continue to be
produced in discovery,
47
they are not fundamentally a part of
demonstrating that the particular device was in good working
order.
48
47
We note that there is already, according to the State, a
routine disclosure of all of the documents on the Special
Master’s list. We presume that, in 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.
48
The record includes scant evidence relating to repair history
of any of these devices. Presumably the devices that were part
of the evidence in the prosecutions for the named defendants
were so newly put into service that no repairs have been needed.
At the same time, there is evidence suggesting that from time to
time one or more of the devices has been adjusted by a
coordinator or returned to Draeger for repair. The record
reflects that in either event, a document is generated by the
coordinators that evidences those repairs. We commend to the
State the establishment of a protocol for maintaining repair
logs to the extent that these become more frequent and,
therefore, potentially relevant.
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125
The foundational documents that we conclude need to be
entered into evidence therefore are few. They are: (1) the
most recent calibration report prior to a defendant’s test, with
part I – control tests, part II – 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.
Absent a pre-trial challenge to the admissibility of the AIR
based on one of the other foundational documents produced in
discovery, we perceive of no reason to require that they be made
a part of the record routinely.
3. Alcohol Influence Report Admissibility
The final aspect of our Crawford analysis must be focused
on the AIR itself. In the time since Crawford was decided,
courts around the country have struggled to analyze its import
in matters relating to scientific or forensic testing generally.
A few have directly confronted documents that are similar to the
AIR and have attempted to apply Crawford’s constitutional
commands in that context.
The AIR, unlike the foundational documents evidencing the
good working order of the machine, reports the results of a test
which, in and of itself under our statute, suffices to support a
conviction. It is proof of BAC, over a specified threshold,
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126
that forms the basis for a per se violation. Were we to step
back and consider it in Crawford terms, we might well conclude
that it is the modern day, functional equivalent of testimony.
It comes, however, not from the mouth of a living witness, but
from a machine. Surely the Founding Fathers did not envision
the day when a device that cannot itself be cross-examined would
be the equivalent of a witness.
We have previously addressed the constitutional question of
the right to confront a written document that is itself evidence
of a crime. In State v. Simbara, 175 N.J. 37 (2002), we
identified the essence of the constitutional quandary in
considering the admissibility of a laboratory certificate
analyzing suspected controlled dangerous substances. We
reasoned:
A laboratory certificate in a drug case is
not of the same ilk as other business
records, such as an ordinary account ledger
or office memorandum in a corporate-fraud
case. Those latter documents have not been
prepared specifically for the government’s
use in a potential criminal prosecution. In
contrast,
the
analyst
prepares
the
laboratory certificate at a prosecuting
agency’s request for the sole purpose of
investigating an accused.
Because the
certificate is singularly important in
determining whether the accused will be
imprisoned or set free, we must be sensitive
to Sixth Amendment interests whenever a
defendant preserves those interests for
trial.
[Id. at 49.]
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In Simbara, we acknowledged that a defendant could seek to
cross-examine the laboratory technician who performed the test
on the sample as a means to protect his or her Confrontation
Clause rights. Ibid. The AIR presents us with a somewhat more
complex constitutional question.
Although no court has considered the Alcotest and its AIR,
other courts have suggested a variety of analytical frameworks
to be utilized in determining whether test results are
testimonial. Some have concluded that because a test result or
report is generated by a machine, rather than a human, it cannot
qualify as a statement in the sense Crawford intended. See
United States v. Washington, 498 F.3d 225, 230-32 (4th Cir.
2007) (finding that “[t]he raw data generated by the diagnostic
machines are the ‘statements’ of the machines themselves, not
their operators”); United States v. Khorozian, 333 F.3d 498, 506
(3d Cir. 2003) (explaining that “a statement is something
uttered by ‘a person,’ so nothing ‘said’ by a machine . . . is
hearsay”).
Other courts have focused on the fact that the machine has
no discretion as to whether it will produce a particular result
and cannot be manipulated to produce a result to secure a
conviction of a particular defendant in the way that
interrogating a person could. See People v. Geier, 161 P.3d
Page 131
128
104, 140 (Cal. 2007) (holding that lab reports are not
testimonial because they are made of part of a routine and non-
adversarial process); Commonwealth v. Verde, 827 N.E.2d 701, 705
(Mass. 2005) (holding that lab reports are not testimonial
because they are neither discretionary nor based on opinion);
State v. Forte, 629 S.E.2d 137, 143 (N.C. 2006) (holding that a
serology report is nontestimonial because it is neutral and has
the possibility to exonerate or convict).
Neither of these analytical frameworks is entirely
sufficient in our view. Instead, we return to the fundamentals
of the definition of testimonial as the Court explained in both
Crawford, supra, and Davis, supra. Viewed against that
standard, the essential elements of testimonial evidence are a
report of a past event, given in response to police
interrogation, with the purpose of establishing evidence that a
defendant committed an offense. Judged against this standard,
the AIR falls outside of the definition of testimonial on two,
and arguably all three, grounds. First, the AIR reports a
present, and not a past, piece of information or data. Second,
although given in the presence of a police officer who operates
the device, nothing that the operator does can influence the
machine’s evaluation of the information or its report of the
data. Third, although the officer may have a purpose of
establishing evidence of a BAC in excess of the permissible
Page 132
129
limit, the machine has no such intent and may as likely generate
a result that exonerates the test subject as convicts him or
her. Seen through this prism, we conclude that the AIR is not
testimonial in the sense that was intended by the Framers of the
Confrontation Clause.
Although we have concluded that the AIR is not testimonial,
we have nevertheless concluded that defendants are entitled to
certain safeguards that we have required be implemented in
prosecutions based on the Alcotest. We have directed that an
opportunity for cross-examination similar to that described in
Simbara and Romano be provided to these defendants through our
requirement that the operator of the device be made available to
testify. Likewise, we have required the routine production in
discovery of all of the foundational documents that might reveal
some possible flaw in the operation of the particular device and
we have demanded that the core foundational documents that
establish the good working order of the device be admitted into
evidence.
But more than implementing these safeguards, because the
ability to cross-examine the operator of the Alcotest will
provide little means to challenge the veracity of the AIR, we
appointed a Special Master, who we commend and thank for his
extraordinary assistance. Through him, we have engaged in a
lengthy process of receiving testimony and evidence, both
Page 133
130
initially and in the supplemental proceedings to ensure the
scientific reliability of the Alcotest. In our effort to judge
the scientific reliability of the device, we have made available
the opportunity for cross-examination of the witnesses who are
most familiar with the device and we have directed that the
manufacturer divulge its source code and make available the
personnel who can explain it.
We are confident, based on this far-reaching and searching
inquiry, that the device is sufficiently reliable so that the
rights of all defendants have been protected. We are satisfied
that, with the directions we here adopt for pending and future
matters, the confrontation rights of all defendants have been,
and will continue to be, protected. We have no doubt that the
device, with the safeguards we have required, is sufficiently
scientifically reliable that its reports may be admitted in
evidence. And we are confident that, in so concluding, all of
defendants’ rights have been advanced and considered.
XII. Conclusion
The Report and Recommendations and the Supplemental Report
and Recommendations of the Special Master are adopted as
modified. The stay effected by our January 10, 2006 Order shall
be lifted in accordance with the Order that accompanies this
decision and that sets forth the precise manner in which our
directives shall be applied. The matters involved in these
Page 134
131
consolidated proceedings are remanded to the Law Division for
further proceedings consistent with this opinion and the
accompanying Order.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO
join in JUSTICE HOEN’s opinion. CHIEF JUSTICE RABNER did not
participate.
Page 135
SUPREME COURT OF NEW JERSEY
NO. A-96
SEPTEMBER TERM 2006
ON REVIEW OF THE REPORT OF THE SPECIAL MASTER
STATE OF NEW JERSEY,
Plaintiff,
v.
JANE H. CHUN, DARIA L.
DE CICCO, JAMES R. HAULSLER,
ANGEL MIRALDA, JEFFREY R.
WOOD, ANTHONY ANZANO, RAJ
DESAI, PETER LIEBERWIRTH,
JEFFREY LING, HUSSAIN NAWAZ,
FREDERICK OGBUTOR, PETER
PIASECKI, LARA SLATER,
CHRISTOPHER SALKOWITZ, ELINA
TIRADO, DAVID WALKER, DAVID
WHITMAN and JAIRO J. YATACO,
Defendants-Respondents.
DECIDED
March 17, 2008
Justice Long
PRESIDING
OPINION BY
Justice Hoens
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
ADOPTED AS
MODIFIED
CHIEF JUSTICE RABNER
---------------------
----------------------
JUSTICE LONG
X
JUSTICE LaVECCHIA
X
JUSTICE ALBIN
X
JUSTICE WALLACE
X
JUSTICE RIVERA-SOTO
X
JUSTICE HOENS
X
TOTALS
6
Page 136
- 1 -
SUPREME COURT OF NEW JERSEY
A-96 September Term 2006
58,879
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ORDER
JANE H. CHUN, DARIA L. DE
CICCO, JAMES R. HAUSLER,
ANGEL MIRALDA, JEFFREY R.
WOOD, ANTHONY ANZANO, RAJ
DESAI, PETER LIEBERWIRTH,
JEFFREY LING, HUSSAIN NAWAZ,
FREDERICK OGBUTOR, PETER
PIASECKI, LARA SLATER,
CHRISTOPHER SALKOWITZ, ELINA
TIRADO, DAVID WALKER, DAVID
WHITMAN and JAIRO J. YATACO,
Defendants-Respondents,
and
MEHMET DEMIRELLI and JEFFREY
LOCASTRO,
Defendant,
and
DRAEGER SAFETY DIAGNOSTICS,
INC.,
Intervenor.
The Court having previously certified the within matter
directly pursuant to Rule 2:12-1, and having contemporaneously
appointed retired Appellate Division Presiding Judge Michael
Patrick King to serve as the Court’s Special Master,
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And the Court having remanded the matter to the Special
Master to develop a record, conduct hearings, and report his
findings and conclusions regarding the scientific reliability of
the Alcotest 7110 MKIII-C (the Alcotest),
And the Court having received the Special Master’s Report
dated February 13, 2007, and Supplemental Report dated November
8, 2007,
And the Court having considered the briefs and arguments of
counsel for the parties, the intervenor, Draeger Safety
Diagnostics, Inc. (Draeger) and the amici curiae, New Jersey
State Bar Association and Association of Criminal Defense
Lawyers,
And the Court having on January 10, 2006, issued an Order
governing prosecution, appeals, and imposition of sentences
pursuant to N.J.S.A. 39:4-50 pending the decision in this
matter,
And the Court having issued this day its decision in the
matter,
And good cause appearing,
1. IT IS ORDERED that the previously imposed stay is
vacated and prosecutions, appeals, and imposition of sentences
in all matters arising pursuant to N.J.S.A. 39:4-50, shall
proceed in accordance with the following directives:
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- 3 -
A. For all pending prosecutions, including all
prosecutions in which imposition of sentence has been stayed by
our January 10, 2006 Order, and in all future prosecutions based
on tests conducted prior to the implementation of our directives
through creation of and implementation of revised firmware,
Alcotest 7110 MKIII-C with New Jersey Firmware version 3.11 is
sufficiently scientifically reliable, and the Alcohol Influence
Report (AIR) which sets forth the results of breath tests is
admissible as evidence of blood alcohol content (BAC), except
that:
(1) in each prosecution in which an AIR is offered as
evidence and in which there are only two reported test samples:
(a) the State shall prepare and produce a
calculation, in a form consistent with Worksheet A attached
hereto, that ensures that the two samples meet the
acceptable range of tolerance as follows:
(i) add the sum of the IR and EC results given
for the first breath sample to the sum of the IR and
EC results for the second breath sample;
(ii) divide the sum calculated in (a) by 4 to
derive the arithmetic mean;
(iii) compute the upper limit of the tolerance
range by taking the higher of the mean multiplied by
1.05 or the mean plus 0.005;
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- 4 -
(iv) compute the lower limit of the tolerance
range by taking the lower of the mean multiplied by
0.95 or the mean minus 0.005;
(v) if all of the IR and EC results of the two
samples fall within the upper and lower limits of the
tolerance range, the two tests are in tolerance and
the AIR is valid; if any of the results fall outside
of the tolerance range, the AIR is not valid;
(b) the court shall verify the accuracy of the
State’s calculation and, in any event, shall make the
calculation a part of the record to facilitate further
review;
(c) if the two samples meet the test for tolerance as
we have defined it, the AIR shall be deemed admissible
(unless challenged on an alternate ground as set forth
herein) into evidence in the prosecution of the matter;
(d) if the two samples do not meet the test for
acceptable tolerance as we have defined it, the AIR shall
not be admissible into evidence;
(2) in each prosecution in which an AIR is offered as
evidence and in which there are three reported test samples,
(a) the State shall prepare and produce a
calculation, in a form consistent with Worksheet B attached
hereto, that, in accordance with the formula on the
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- 5 -
attached worksheet, analyzes the reported results to
determine which, if any, meet the test for tolerance as we
have defined it, and
(i) if, after completing the worksheet there are
at least two breath samples for which IR and EC
results are within the acceptable range of tolerance,
the AIR will be admissible and the BAC shall be the
lowest of those results; but
(ii) if, after completing the worksheet, there
are no two test samples that meet the test for
tolerance as we have defined it, then the AIR shall
not be admissible into evidence;
(b) the court shall verify the accuracy of the
State’s calculations and shall ensure that there has been
no buffer overflow error or that the calculation of the
BAC, accounting for a buffer overflow error, has been
corrected;
(c) the calculations relating to the possibility of a
buffer overflow error and its correction, if appropriate,
shall be made a part of the record to facilitate further
review;
(3) in each prosecution involving any woman who, at the
time of the alleged offense, was over the age of sixty and for
whom an AIR was generated with an error message evidencing a
Page 141
- 6 -
breath sample of inadequate volume, the AIR shall not be
admissible as evidence in a prosecution for refusal, see
N.J.S.A. 39:4-50.4a, unless the woman also provided another
breath sample of at least 1.5 liters; and it is further
2. ORDERED that the State shall arrange forthwith with
Draeger for revisions to the New Jersey Firmware utilized in
Alcotest 7110 MKIII-C, as needed to accomplish the directives
set forth in the Court’s opinion regarding the admissibility
into evidence of results of Alcotest breath testing, currently
New Jersey Firmware version 3.11, as follows:
A. The firmware shall be locked so that only the
manufacturer of the device is able to change the firmware, with
changes to be downloaded by State Police Coordinators as needed;
B. The firmware shall utilize minimum breath sample
criteria as follows: (1) minimum volume of 1.5 liters for all
test subjects except for women over sixty years of age, for whom
the minimum volume shall be fixed at 1.2 liters; (2) for all
subjects, regardless of age or gender, the minimum criteria
shall also include (a) a minimum 4.5 second blowing time; (b) a
minimum flow rate of 2.5 liters per minute; and (c) a plateau as
established by the infrared (IR) measure which does not differ
by more than one percent in 0.25 seconds;
C. The firmware shall be corrected to set the acceptable
tolerance range for breath sample readings at the greater of
Page 142
- 7 -
plus or minus five percent of the mean, or plus or minus 0.005
percent BAC from the mean;
D. The firmware shall be corrected to eliminate the
buffer overflow programming error;
E. The firmware shall be corrected to re-enable
catastrophic error detection;
F. The firmware shall be corrected so that the AIR will
report control test results for IR and EC readings prior to the
application of the fuel cell drift algorithm;
G. The firmware shall be programmed to include the serial
number of the Ertco-Hart digital temperature measuring system
utilized as a part of each calibration, certification and
linearity report;
H. The firmware shall be corrected to identify, on any
AIR which reveals that the test subject has no reportable
results, why there has been no reportable result derived or
generated;
I. The firmware shall be reprogrammed to include, on all
future AIR printouts, solution change reports, calibration
documents, and a listing of the temperature probe serial number
and value; and
J. The firmware shall be reprogrammed to include, on all
future AIR printouts, a designation of the firmware version
Page 143
- 8 -
utilized by the device reporting breath results; and it is
further
3. ORDERED that the State shall forthwith:
A. Commence inspection and recalibration of all Alcotest
devices every six months in place of the current annual
inspection and recalibration program;
B. Create and maintain a centralized statewide database,
comprised of downloaded Alcotest results, and shall make the
data, following appropriate redactions of personal
identification as needed, available to defendants and counsel;
and
C. Produce in discovery the twelve foundation documents
identified by the Special Master as follows:
(1) New Standard Solution Report of the most recent
control test solution change, and the credentials of the
operator who performed that change;
(2) Certificate of Analysis for the 0.10 percent
solution used in that New Solution Report;
(3) Draeger Safety Certificate of Accuracy for the
Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy for the
Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy for the
Alcotest 7110 Instrument;
Page 144
- 9 -
(6) Calibration Records, including control tests,
linearity tests, and the credentials of the coordinator who
performed the calibration;
(7) Certificate of Analysis for the 0.10 percent
solution used in the calibration control test;
(8) Certificate of Analysis for the 0.04, 0.08, and
0.16 percent solutions used in the calibration linearity
test;
(9) New Standard Solution Report, following the most
recent calibration;
(10) Draeger Safety Certificates of Accuracy for the
Simulators used in calibration;
(11) Draeger Safety Certificate of Accuracy for the
Alcotest 7110 Temperature Probe used in calibration; and
(12) Draeger Safety Ertco-Hart Calibration Report; and
it is further
4. ORDERED that the State shall provide notice, both to
the parties and by means calculated to be generally accessible
to the public and shall specifically provide notice to the New
Jersey State Bar Association, of any and all proposed future
revisions to the Alcotest New Jersey Firmware, which notice
shall not be generic, but shall be sufficiently specific to
identify the proposed software changes so as to afford notice in
compliance with due process; and it is further
Page 145
- 10 -
5. ORDERED that Draeger shall make training on the
Alcotest device, substantially similar to that provided to
Alcotest operators and coordinators, available to licensed New
Jersey attorneys and their designated experts, at regular
intervals and at locations within the State of New Jersey, at a
reasonable cost to those who attend; and it is further
6. ORDERED that in all pending prosecutions based on or
including Alcotest New Jersey Firmware version 3.11 and all
future firmware versions, and consistent with past practices in
prosecutions based on breathalyzer analysis,
A. The operator who conducted the tests shall be made
available to testify and shall produce the documents evidencing
his or her training, and
B. The following foundational documents shall be offered
into evidence to demonstrate the proper working order of the
device:
(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.
Page 146
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WITNESS, the Honorable Virginia Long, Associate Justice, at
Trenton, this 17th day of March, 2008.
/s/ Stephen W. Townsend
Clerk of the Supreme Court
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and
HOENS join in the Court's Order. CHIEF JUSTICE RABNER did not
participate.
Page 147
- 12 -
WORKSHEET A
State v. Chun, et al.
Supreme Court of New Jersey
A-96 September Term 2006 (Docket No. 58,879)
Tolerance Worksheet (for use in connection with Alcotest New Jersey Firmware 3.11)
How to Calculate Whether Two Breath Samples are in Tolerance Under Acceptable Tolerance Standard
Line #
Subject Alcohol Results to be Input from Alcohol Influence Report
1
Valid Breath Sample 1 IR
(Value entered from AIR)
2
Valid Breath Sample 1 EC
(Value entered from AIR)
3
Valid Breath Sample 2 IR
(Value entered from AIR)
4
Valid Breath Sample 2 EC
(Value entered from AIR)
Breath Samples Tolerance Agreement Check
5
Add Lines #1, #2, #3, and #4:
(This is the sum)
6
Divide Line #5 by 4:
(This is the arithmetic mean)
7
Multiply Line #6 by 1.05:
(This is relative tolerance upper limit)
8
Add 0.005%BAC to Line #6:
(This is absolute tolerance upper limit)
9
Multiply Line #6 by 0.95:
(This is relative tolerance lower limit)
10
Subtract 0.005%BAC from Line #6:
(This is absolute tolerance lower limit)
11
Report the greater of Line #7 or Line #8, to four digits
after decimal point:
((This is the upper tolerance limit)
12
Report the lesser of Line #9 or Line #10, to four digits
after decimal point:
(This is the lower tolerance limit)
13
Lines #1, #2, #3, and #4 are within the values of Lines
#11 and #12. TRUE or FALSE?:
(If TRUE, breath samples are in tolerance
and AIR is valid; if FALSE, breath samples
are not in tolerance and the AIR is invalid)
Page 148
- 13 -
WORKSHEET B
State v. Chun, et al.
Supreme Court of New Jersey
A-96 September Term 2006 (Docket No. 58,879)
Buffer Overflow Worksheet (for use in connection with Alcotest New Jersey Firmware 3.11)
How to Calculate Reported Breath Test Result When Third Valid Breath Sample is Collected
Line #
Subject Alcohol Results to be Input from Alcohol Influence Report
1
Valid Breath Sample 1 IR
(Value entered from AIR)
2
Valid Breath Sample 1 EC
(Value entered from AIR)
3
Valid Breath Sample 2 IR
(Value entered from AIR)
4
Valid Breath Sample 2 EC
(Value entered from AIR)
5
Valid Breath Sample 3 IR
(Value entered from AIR)
6
Valid Breath Sample 3 EC
(Value entered from AIR)
Valid Breath Samples 1 & 3 Tolerance Agreement Checks
7
Copy Line #1
(Copy from appropriate field above)
8
Copy Line #2
(Copy from appropriate field above)
9
Copy Line #5
(Copy from appropriate field above)
10
Copy Line #6
(Copy from appropriate field above)
11
Add Lines #7, #8, #9, and #10:
(This is the sum)
12
Divide Line #11 by 4:
(This is the arithmetic mean)
13
Multiply Line #12 by 1.05:
(This is relative tolerance upper limit)
14
Multiply Line #12 by 0.95:
(This is relative tolerance lower limit)
15
Add 0.005%BAC to Line #12:
(This is absolute tolerance upper limit)
16
Subtract 0.005%BAC from Line #12:
(This is absolute tolerance lower limit)
17
Report the greater of Line #13 or Line #15, to four digits after
decimal point:
((This is the upper tolerance limit)
18
Report the lesser of Line #14 or Line #16, to four digits after
decimal point:
(This is the lower tolerance limit)
19
Lines #7, #8, #9, and #10 are within the values of Lines #17 and
#18. TRUE or FALSE?:
(Valid Breath Samples 1 & 3 are in
tolerance agreement if TRUE)
Valid Breath Samples 2 & 3 Tolerance Agreement Checks
20
Copy Line #3
(Copy from appropriate field above)
21
Copy Line #4
(Copy from appropriate field above)
22
Copy Line #5
(Copy from appropriate field above)
23
Copy Line #6
(Copy from appropriate field above)
24
Add Lines #20, #21, #22, and #23:
(This is the sum)
25
Divide Line #24 by 4:
(This is the arithmetic mean)
26
Multiply Line #25 by 1.05:
(This is relative tolerance upper limit)
27
Multiply Line #25 by 0.95:
(This is relative tolerance lower limit)
28
Add 0.005%BAC to Line #25:
(This is absolute tolerance upper limit)
29
Subtract 0.005%BAC from Line #25
(This is absolute tolerance lower limit)
30
Report the greater of Line #26 or Line #28, to four digits after
decimal point:
((This is the upper tolerance limit)
31
Report the lesser of Line #27 or Line #29, to four digits after
decimal point:
(This is the lower tolerance limit)
32
Lines #20, #21, #22, and #23 are within the values of Lines #30
and #31. TRUE or FALSE?:
(Valid Breath Samples 2 & 3 are in
tolerance agreement if TRUE)
Selection of Reported Breath Test Result
33
If Lines #19 and #32 are both TRUE, report the lowest value
from Lines #1, #2, #3, #4, #5, and #6. Truncate to two digits
after the decimal point. Otherwise, write FALSE
(The value here is the RBTR. If FALSE,
there is not agreement both for breath
samples 1&3 AND 2&3.)
34
If Line #19 is TRUE and Line #32 is FALSE, report the lowest
value from Lines #1, #2, #5, and #6. Truncate to two digits after
the decimal point. Otherwise, write FALSE
(The value here is the RBTR. If FALSE,
there is not agreement only for breath
samples 1&3.)
35
If Line #19 is FALSE and Line #32 is TRUE, report the lowest
value from Lines #3, #4, #5, and #6. Truncate to two digits after
the decimal point. Otherwise, write FALSE
(The value here is the RBTR. If FALSE,
there is not agreement only for breath
samples 2&3.)
36
If Line #19 and Line #32 are both FALSE, write TRUE. When
TRUE, the breath test will result in a TESTS OUTSIDE +/- TOL
error and no alcohol value will be reported. Otherwise, write
FALSE
(If TRUE, there is no tolerance agreement
between any of the three samples provided.
Therefore the AIR is invalid.)
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