Critics of the breath test used in New Jersey drunken driving cases took aim Tuesday in front of the state’s Supreme Court, arguing that modifications mandated by the court five years ago haven’t been implemented by the state and that the test should be scrapped.
At issue is Alcotest, the machine that began to replace the old Breathalyzer machines beginning in 2001. A lawsuit brought by 20 people charged with DWI who challenged the results of the test succeeded in halting the use of the machine in 2006. A 2008 Supreme Court decision that called Alcotest “generally scientifically reliable” and allowed the machine to be used, with some modifications.
That 2008 ruling required the state to make software changes in the machines and create a centralized statewide database of Alcotest results that would be available to defendants and their attorneys.
“The state hasn’t done that. They haven’t even tried,” attorney Evan Levow, who represents drunken driving defendants, argued Tuesday. “Alcotest is scientifically unreliable because the state never made the changes.”
According to Levow and other attorneys arguing before the court Tuesday, the version of Alcotest currently in use has an algorithm that isn’t included in a version the state hasn’t yet rolled out, a tacit admission that there was a problem with it. The attorneys also contended the state hasn’t provided specific details on what went into the new version.
Another required software modification pertained to women over age 60, who frequently aren’t capable of reaching the minimum breath volume of 1.5 liters. The 2008 ruling ordered the state to reprogram the machines to lower the minimum for those women to 1.2 liters. That hasn’t been done, Levow said.
Levow called for all future Alcotest results to be suppressed and to have police and prosecutors instead rely on physical evidence or field sobriety tests.
“Breath testing is trial by machine,” he told the justices. “It’s imperative that the public has trust” in the technology being used.
Arguing for the state, Deputy Attorney General Robyn Mitchell called the defense attorneys’ solution “an extreme remedy and completely unwarranted.” She told the justices the new version of Alcotest is in compliance with the 2008 order. She also told the justices that the maker of Alcotest has told them the current machines will have to be replaced by the end of 2016 and that the state already has begun looking at a new breath test to use.
The attorney general’s office has filed a motion to be released from implementing its new version of the software so it can devote resources to finding an alternative test. Mitchell estimated it could take a few years for the state to put its new version of Alcotest into use.
The court is expected to rule in the next few months. It could hold that the current version of Alcotest is acceptable or that the new version should be implemented, or it could appoint a special master as it did before its 2008 ruling to review the machine’s reliability.