Court ruling lets N.J. DUI cases proceed

Thousands of drunken-driving prosecutions are set to resume across New Jersey after the state Supreme Court ruled yesterday that a new computerized breath test is scientifically reliable and can be used as evidence.

The 6-0 decision by the state's highest court came after a special master conducted hearings and concluded last year that Alcotest, a device used in 17 of the state's 21 counties, was more reliable than the decades-old Breathalyzer machine it replaced.

"We are confident, based on this far-reaching and searching inquiry, that the device is sufficiently reliable so that the rights of all defendants have been protected," Justice Helen E. Hoens wrote in a 131-page opinion.

The immediate impact of the ruling will be the resumption of cases against more than 10,700 drunken-driving defendants who are awaiting sentencing, according to the state Administrative Office of the Courts. The high court halted many cases in January 2006 while it resolved questions about the test.

The decision marked the first time a state high court has ruled on the reliability of the test, which is also used in Alabama, New York and Massachusetts, as well as in parts of eight other states and in 31 other countries.

State Attorney General Anne Milgram said in a statement that the ruling provides a "firm foundation" for use of the new test, which she said "will provide strong evidence and sure justice for those who violate New Jersey's drunken-driving laws."

But the ruling was met with disappointment by lawyers who specialize in drunken-driving defense work.

"We think it's wrong," said Cherry Hill defense lawyer Evan M. Levow, who represents one of the defendants in the case and plans to ask the U.S. Supreme Court to hear an appeal.

Levow said that, with 36,000 drunken-driving cases filed each year in New Jersey, he believes that many more cases have been put on hold. He predicted "a flood on the court system" as those cases now start to lurch forward.

Though police can use other criteria - ranging from having a suspect count or say the alphabet, or walk the familiar straight line - to make a case, breath tests are regarded as important evidence in a prosecution for driving while intoxicated.

If a driver is found to have a blood-alcohol level of 0.08 percent or higher, he or she is guilty.

The Alcotest device is a modern-day, high-tech version of the well-known Breathalyzer, the gold-standard sobriety test that has been used in many states, including Pennsylvania, since the 1950s.

But tracing the history of the sobriety tests, the New Jersey court said the old breath-test devices had become outdated, with replacement parts hard to come by and repairs difficult.

So New Jersey started to look for other options, and it decided on the Alcotest - a computerized, high-tech breath test manufactured by Draeger Safety Diagnostics Inc., a German company.

But as the state spent millions of dollars to implement the test, starting in 2001, the device hit a bumpy road, as it was challenged almost immediately by defense lawyers when it was used in a pilot program in Pennsauken.

Yesterday's high court ruling came in a later case brought by 20 drunken-driving defendants in Middlesex County.

The justices largely accepted the recommendations of the special master, retired Judge Michael Patrick King, who concluded after a series of hearings that the device is reliable.

While the court rejected King's suggestion that a breath-temperature sensor be added, it said the manufacturer must provide training and software information to defense lawyers. It also said the machine must be calibrated every six months, instead of once a year.

Cherry Hill lawyer Jeffrey E. Gold, who argued on behalf of the New Jersey State Bar Association before the high court, said the ruling would have a far-reaching impact.

"It is really a precedent for the entire country in how to deal with these breath tests," Gold said.

Hoens' opinion was joined by five other justices - Virginia Long, Jaynee LaVecchia, Barry T. Albin, John E. Wallace Jr., and Roberto A. Rivera-Soto. Chief Justice Stuart Rabner, a former state attorney general, did not take part in the decision.

While the legal challenges worked their way through the state court system, the Supreme Court in 2006 issued an order halting proceedings in cases in which defendants had challenged the reliability of the test, and sentencings for most first-time offenders.

It remained unclear how quickly those cases would resume; defense lawyers said a number of legal and logistical matters still needed to be worked out.

But for the German manufacturer, yesterday's decision was good news.

Jeffrey Schreiber, a lawyer who argued the case on behalf of the company, said the decision would likely be scrutinized in states already using the device, as well those that might be considering it.

"I would think other states should give great deference to the result in the New Jersey Supreme Court," Schreiber said.

Hansueli Ryser, a vice president for the manufacturer, called the ruling a "very significant" development. "It definitely will have an echo throughout the United States," he said.