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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 Draegers 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 suspects blood alcohol
concentration (BAC). It was contested whether: (1) the Alcotests 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 machines 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 Alcotests 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.
Page 2
2
HELD: The Court adopts, as modified, the Special Masters 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 Courts 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 Jerseys 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 Courts 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 Alcotests 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 Alcotests
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 Masters recommendation that the devices be recalibrated
semi-annually instead of annually. A semi-annual calibration is consistent with the manufacturers
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 Alcotests 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 subjects BAC. (pp. 95-96)
Page 3
3
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 Courts 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 defendants test; and the certificate of analysis of the 0.10
simulator solution used in a defendants 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
Crawfords 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 defendants 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 Courts 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
Masters Report filed -- November 8, 2007
Re-argued January 7, 2008 Decided March 17, 2008
On certification to the Superior Court, Law
Division, Middlesex County.
Page 5
2
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. DellAquilo, Jr., Deputy
Attorneys General, of counsel; Mr. Moczula,
Ms. Oppenheim, Ms. Hoffman, Mr. DellAquilo,
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,
Page 6
3
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. Draegers 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
Page 7
4
XI. Requirements Prior to the Admissibility of Alcotest Evidence
............................................................. 108
A. Confrontation Clause Implications ....................... 112
B. Application of Crawford v. Washington ................... 116
1. Operators 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.
Page 8
5
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 Generals 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.
Page 9
6
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 devices 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
Page 10
7
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 devices 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.
Page 11
8
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 States 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
Page 12
9
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 Masters 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 Masters 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
Judiciarys website.
Although we also vacated the Law Divisions 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
Page 13
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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
Page 14
11
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 Masters 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
Page 15
12
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.
Page 16
13
order to preserve Draegers 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 Masters 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 Legislatures
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 Jerseys 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
(Michaels 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 Legislatures 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
subjects 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 States
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.
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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 stomachs 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
persons 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 individuals 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
individuals blood would presumably provide more direct evidence
of that persons 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 devices 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 1970s or early 1980s 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
persons 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 persons 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 Divisions
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
courts decision in Foley have become important to our analysis
as we will detail.
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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 subjects 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 devices 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 devices 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
departments 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
Masters 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 Masters 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 Masters 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 Masters Finding 2(a)); he recommended
that the State be required to publish future firmware revisions
(Special Masters 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 Masters 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 Masters 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 Masters 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 Masters Finding 2(f)); he concluded that
the Alcotest is not operator dependent, (Special Masters
Finding 2(g)), and that it is therefore superior to the
breathalyzer (Special Masters 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 Masters
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 Masters 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 Masters Finding 2(j)); he found that the
agreement between Draeger and defendants regarding future
testing of firmware revisions should be enforced (Special
Masters Finding 3); he concluded that the Alcotest is well
shielded against radio frequency interference (RFI) (Special
Masters 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
Masters 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
Masters 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 Masters
Finding 6); he recommended that the State create and maintain a
centralized database of the digitally recorded data (Special
Masters 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 Masters 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 Masters
Finding 10).
B. Draegers Role in the Proceedings
During the first oral argument before this Court following
the Special Masters 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 manufacturers 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, Draegers 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 experts
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 States 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 Masters 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 Masters finding that the Alcotest is not as operator-
dependent as was the breathalyzer. (Special Masters 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
Masters Finding 4).
The parties agree, as well, about certain of the Special
Masters 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 Masters 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 Masters 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 Masters 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 Masters 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 MasterS Finding 2(h)).
20
Our review of the record
satisfies us that there is substantial, credible evidence that
supports the Special Masters 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 Masters
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 Courts 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 Masters
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 Masters 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 Courts 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 Masters 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 Masters recommendations are merely precatory,
Page 50
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 Masters 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 Masters recommendations on each
of the following matters: (a) the utilization of the 2100 to 1
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48
blood/breath ratio (Special Masters Finding 1(b)); (b) the
minimum breath sample criteria (Special Masters Finding 6); (c)
the requirement for the addition of a breath temperature sensor
(Special Masters Finding 9); and (d) the acceptable tolerance
among test results (Special Masters 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 Masters
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 Masters findings and recommendations
concerning foundational evidence (Special Masters 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 persons 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 States 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 Masters 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 Masters 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
Masters 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 States 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 States 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 States 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 Masters 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 officers 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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58
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. Dept 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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60
fundamental constitutional guarantee[]. Sojourner A. v. N.J.
Dept 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 Assn 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 Jerseys Constitution, we have applied a
balancing test that weighs the nature of the affected right,
Page 64
61
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.
Page 65
62
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. Harrahs 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
Page 66
63
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
enforcements 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
Page 67
64
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 Masters 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
Page 68
65
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
Page 69
66
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
Masters Finding 9). This recommendation was based on the
Special Masters 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
subjects 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.
Page 70
67
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 Alabamas 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 jurisdictions 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 Masters 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 States 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.
Page 71
68
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 persons
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
Page 72
69
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.
Page 73
70
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 subjects 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,
Page 74
71
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 Masters 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 Masters
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.
Page 75
72
mean for the four readings, whichever is greater. (Special
Masters 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.
Page 76
73
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
Page 77
74
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 courts 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.
Page 78
75
In so articulating the tolerance range, however, the court
did not simply r


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