New Jersey Court Puts Breath Test Instrument Under Microscope

A breath test instrument used in thousands of drunken driving cases is under scrutiny as the state Supreme Court considers an appeal challenging whether the machine provides reliable blood-alcohol level readings.

The court's decision will affect at least 10,000 cases that have been hung up -- some for more than a year -- over questions about the reliability of the machine, the Alcotest 7110. The Alcotest is the successor to the Breathalyzer machine and is used in 17 of the state's 21 counties. The other four still use the Breathalyzer.

Alabama, New York and Massachusetts also use the Alcotest, manufactured by Draeger Safety Diagnostics.

Peter H. Lederman appeared as a friend of the court on behalf of the Criminal Defense Lawyers of New Jersey, which claims the machine can produce erroneous readings. He said the ruling "will have an impact throughout the country because Draeger will try to sell this machine saying that New Jersey thoroughly vetted it and found it reliable."

The state Supreme Court is considering whether the machine is scientifically reliable for establishing blood-alcohol levels in prosecutions, as the state contends.

There was no indication when the court would rule on the matter.

The legal threshold for intoxication in New Jersey is a blood-alcohol level of .08 percent.

The state has spent millions to upgrade to the Alcotest, and the machine figures in about 80 percent of the 30,000-35,000 drunken driving cases prosecuted in New Jersey each year.

Questions over the reliability of the Alcotest are nothing new. After a 13-month trial period for the then-new Alcotest in Camden County in 2001-2002, a Superior Court judge upheld the machine's use after some defendants challenged its results.

Other states use machines that are similar to the Alcotest to measure blood-alcohol levels, but the basic technology is applied differently, making the devices more reliable, said Lederman.

Marcia Cunningham, director of the National Traffic Law Center, which provides training to prosecutors in traffic-related matters, said the science behind the Alcotest is solid.

"The role of the defense is to raise clouds," she said. "If you have science involved, it's relatively easy to make things look murky. Anyone familiar with the science used in breath tests is very confident in the results."

In February, a special master appointed by the state Supreme Court concluded that the machine is generally reliable but not perfect, and that it should only be used with some adjustments and discretion.

The master, retired Judge Michael Patrick King, suggested that judges be able to consider other evidence in cases where the Alcotest readings are close to the threshold, such as the way a defendant walked and talked at the time the test was administered.

King also said that until the Alcotest machines are outfitted with breath temperature sensors, all the readings should be reduced. Higher breath temperatures give higher blood-alcohol readings, King wrote in his report.

Boris Moczula, who argued the case for the state, said it would cost $1,300 more to purchase a new machine with a sensor and $1,600 per machine to retrofit existing ones.

The reliability of the new machines especially important in New Jersey because judges are given little leeway in ruling in drunken driving cases. If a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.