Report: Alcotest worthy, imperfect

Both sides in the debate over a new device used to test drunk drivers in New Jersey saw something they liked in a massive report released yesterday.

To the state's delight, retired Appellate Division Presiding Judge Michael Patrick King called the Alcotest machine "scientifically reliable" and "state-of-the-art technology."

King's 268-page report also made defense lawyers happy by saying the device should be modified and by acknowledging that defendants should be allowed to contest borderline blood-alcohol readings.

Both sides praised the comprehensive report, which could pave the way for full acceptance of the machine.

"To a large degree, this is like the Magna Carta," said Jeffery E. Gold, a Cherry Hill lawyer who represented the New Jersey State Bar Association in the matter. "We're going to use the Alcotest, and we're going to use it for a long time. . . . This is foundational."

The Alcotest, used in 17 of the state's 21 counties, including all of South Jersey, is a breath-testing device connected to a computer platform. New Jersey has been rolling it out as the last state to replace the old Breathalyzer.

After challenges to Alcotest's reliability, the New Jersey Supreme Court asked King to hold hearings and make recommendations. In the meantime, Alcotest evidence could be used in prosecutions, but sentencing for most first-time offenders had to wait.

That was more than a year ago, and, by most estimates, more than 10,000 sentencings have piled up. Those drivers could lose their licenses for three to 12 months, but they have been allowed to drive while the Alcotest case has been sorted out.

Gold said defendants in some of the borderline cases - with readings near the 0.08 percent legal limit for blood-alcohol content - could find reasons to challenge their convictions based on King's report.

"There is quite a bit in this report, and good lawyers will cultivate it," he said.

King's report is not binding on the Supreme Court. The justices will hold their own hearing - probably in March - and make a final ruling on the Alcotest.

A team of defense lawyers who challenged Alcotest before King will carry their arguments to the high court.

Evan M. Levow, a Cherry Hill lawyer on that team, said there was no way to know whether Alcotest could be trusted unless someone examined its computer program. The manufacturer, Draeger Safety Diagnostics Inc., has not shared the computer code, calling it proprietary information.

"Our position was that constitutional rights are not proprietary," Levow said. "It's completely unfair to prosecute individuals based on information they are not even permitted to understand."

Levow and the other attorneys also argued that the Alcotest works on physiological assumptions, or averages, that only one in 10 people meets at a given time. Particularly important is the assumption about breath temperature.

King seemed to agree with the defense lawyers on that issue, saying the state should install sensors that can account for different breath temperatures. Without the sensors, he said, a margin of error that pushed the legal limit to about 0.085 percent should be applied.

The manufacturer also acknowledged during King's hearing that the Alcotest had a normal margin of error of 0.005 percentage points, aside from the breath issue. But King did not say that margin of error should be taken into account.

Instead, he said defendants with borderline readings could impeach the test results - something that has not been codified in New Jersey law.

"Before this opinion, blowing an .08 was an .08," Levow said. "Judge King said you have to look at that now."

The Alcotest is used in several other states, most widely in Alabama and Massachusetts, Levow said. The machine's reliability has been challenged in Massachusetts, but not as extensively as in New Jersey.

"This is a landmark case," Levow said. "This machine is going to find its way into many, many states."

To read the judge's report, go to http://go.philly.com/

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