If you have been convicted of driving under the influence in New Jersey, you likely submitted a breath sample. In 2005, the State began using the Alcotest 7110 MKIII-C machine to test driver’s breath for alcohol. The Alcotest analyzes breath samples, produces blood alcohol concentration readings and determines whether a driver is above the legal limit to operate a motor vehicle.
The results of the Alcotest can be used against a driver in court to prove guilt provided that a number of conditions are met. One of the conditions imposed by the New Jersey Supreme Court was the semiannual recalibration of the Alcotest to ensure accurate measurements.
During that calibration, simulator solutions are used to confirm the accuracy of the machine. These solutions are heated to a precise temperature to mimic human breath of a person with a certain blood alcohol concentration (“BAC”). During this calibration, the operator uses a specialized NIST-traceable thermometer to confirm the solutions have been heated to between 33.8 and 34.2 Celsius.
A NIST is a federal agency which maintains and promotes consistent units of measurement. A NIST-traceable thermometer is a thermometer that is can be compared to the stand measurements and its level of uncertainty is known. NIST-traceable thermometers are generally accepted as accurate by the scientific community.
The New Jersey State Police has used non-NIST-traceable thermometers during the semi-annual calibration of the Alcotest machines throughout New Jersey. The New Jersey Supreme Court has recently issued an opinion that may call into question many Alcotest results due to this calibration technique. See State v. Cassidy, ___ N.J. ___ (2018). The Court in Cassidy addressed the issue of whether the failure to test the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine would undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine. The New Jersey Supreme Court stated that it did.
The Court held that breath test results from Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible, finding that accurate temperature readings of the simulator solutions are the foundation upon which the entire calibration process is built and essential to confidence in the Alcotest’s results. One of the experts who testified stated that if the simulator solution is off by a single degree and that error is undetected, the Alcotest results would be off by seven percent.
So if the Alcotest results are inadmissible, does that mean the case is over? Well, the short answer is “it depends.” If the Alcotest results are inadmissible, the reading cannot be used against you at trial. However, the State can still proceed based upon the officer’s observations, such as odor of alcohol, slurred speech, droopy eyes, swaying while standing, etc.
In any event, if you have a prior conviction or pending DUI/DWI, you should talk to an attorney to see if this issue is present in your case.