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March 18, 2008
In This Issue
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1. NJ Supreme Court holds Alcotest DWI breath testing
machine results admissible
2. Free Wills and Power of Attorney Seminar on Wednesday,
April 2, 2008
3. Recent webpages added to www.njlaws.com website.
Greetings ,
1. NJ Supreme Court holds Alcotest DWI breath testing
machine results admissible.
The Supreme Court on March 17, 2008 adopted, as modified,
the Special Master's reports and recommendations. This
landmark decision changes the prosecution of DWI cases
in New Jersey forever. 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 issued 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. This State v Chun
has been pending before the court since 2005.
The Supreme Court held:
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.
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.
3. The Supreme Court in State v. Chun declined 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.
4. A tolerance range of an absolute 01 percent (plus
or minus 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.
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
6. The Supreme Court concluded 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
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.
8. The Supreme Court in State v. Chun found 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.
9. The Supreme Court found 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.
10. In future revisions to the Alcotest software, The
Supreme Court ruled 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.
11. The Supreme Court ruled 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.
12. The Supreme Court in State v. Chun ruled 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 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.
13. The Supreme Court ruled 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, givenin 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.
The full 130 page opinion will be available on website
www.njlaws.com/statevchun.htm
2. Free Wills and Power of Attorney Seminar on Wednesday,
April 2, 2008.
Wills & Power of Attorney Program
Learn about documents to save your family money
WHERE: Heritage at Clara Barton, 1015 Amboy Ave. Edison
WHEN: Wednesday, April 2, 2008 8 - 9 P.M.
SPEAKER: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
Sponsor: Metuchen- Edison Women's Club
NJ State Federal of Women's Clubs, Shore District
Co-sponsored by Middlesex County Estate Planning
Council
Cost: Free, open to the public
- So you don't have a Will.
You won't live forever and you can't take it with you.
What should you do?
Main Topics:
1. Wills and the changes to the NJ Probate Law
2. Power of Attorney
3. Living Will
4. Administering the Estate/ Probate/Surrogate
5. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills,
"Probate and Administration of an Estate", Power
of Attorney, Living Wills, Real Estate Sales for Seniors,
and Trusts.
Here is your opportunity to listen to an experienced attorney
who will answer questions how to distribute
your property and avoid many rigid provisions of state
law. For more information on Elder law, visit the
Website www.njlaws.com.
You can also subscribe to the free email Elder Law
newsletter by visiting the website, or sending an email
to Kenv@njlaws.com.
Call for information on Metuchen- Edison Women's Club
contactChristine Mullen 732-549-7173
About the Speaker: Kenneth Vercammen is an Elder Law
and Litigation Attorney in Edison, NJ. He often lectures
for the American Bar Association and New Jersey State
Bar Association on Elder Law, personal injury, and criminal
/ municipal court matters. He has published
125 articles in national and New Jersey publications on
legal topics.
He speaks as a volunteer on Wills and Elder law to Adult
Community Schools and non profit groups including
Edison, Metuchen, Woodbridge, East Brunswick,
North Brunswick, South Brunswick, Piscataway,
Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors.
He has established New Jersey's most popular Elder law
website on the Internet to provide information
on Probate, Elder Law and Traffic matters located at www.njlaws.com
About Middlesex County Estate Planning Council:
In several counties in New Jersey, estate planning professionals
have set up Councils whereby those
assisting seniors and taxpayers with their estate
planning could meet on a quarterly basis to share
ideas. Invited to attend are accountants, financial
planners, Life insurance agents, funeral directors,
bank representatives involved in reserve mortgages,
nursing home managers and Municipal senior citizen
coordinators. We will share ideas on providing advice,
new laws and marketing. Senior Citizen Coordinators
and anyone who provides advice to seniors and the
Elderly should also attend.
http://www.njlaws.com/middlesex_estate_council_speaker_needed.htm
3. Recent webpages added to www.njlaws.com website.
1. Middlesex County Bar Association 3rd Annual Awards
Dinner
2. Intestacy
3. Litigation Involving Wills
4. Litigation Involving Intestacy
5. NJ Inheritance Return Form Revised
6. Victims Testifying at Trial
7. Whiplash
8. Strains
9. Sprains
10.Anabolic Steroids
11.Financial Recovery for Fall Down Victims
12.Black Ice Fall Down
13.Wills for Unmarried Women
14.30:4-123.51 Eligibility for parole
15.39:4-50.9. Drunk Driving Victim's Bill of Rights
16.Financial Recovery for Car Accident Victims
17.Injury Help Line
18.Fiduciary Duties, Obligations and Liabilities
19.Brief to Dismiss DWI Summons
20.FIRST INTERIM REPORT OF THE NEW JERSEY CIVIL UNION
REVIEW COMMISSION
21.Whiplash in Car Accidents
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KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
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