udge King releases findings regarding 7110 Alcotest DWI machine

Judge King releases findings regarding 7110 Alcotest DWI machine After months of testimony and hearing, Court Special master Michael Patrick King rederered Findings and Conclusions Submitted to Supreme Court on February 13, 2007 regarding the DWI Alcotest machine.
I. PROCEDURAL HISTORY The case arises from quasi-criminal actions involving twenty defendants who were arrested in Middlesex County for driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50. Defendants challenged the admissibility and reliability of breath test results obtained from the Alcotest 7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).

On October 14, 2005 the Law Division granted the State's motion to consolidate the cases pending as of May 23, 2005 in several Middlesex County municipal courts. Among other things, Judge Cantor denied the State's motion to take judicial notice of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law Div. 2003), which ruled that the Alcotest 7110 MKIII-C was scientifically accurate and reliable and that its reported readings would be admitted into evidence without the need for expert testimony. At the time of Foley, New Jersey was using firmware version 3.8.

In her written statement of November 10, 2005 Judge Cantor explained that the Alcotest 7110 MKIII-C was a new instrument adopted throughout New Jersey on a county-by-county basis on a sequential timetable. She emphasized that only the Camden County, Law Division in Foley had found it scientifically reliable and that Judge Orlando, in dictum, had concluded that New Jersey should make certain changes in the instrument's firmware and the instructions given to its users. Ibid. Because the Alcotest 7110 MKIII-C was a novel scientific instrument which had never been vetted by an appellate court or our Supreme Court, Judge Cantor concluded that its scientific reliability remained a justiciable issue.

On December 1, 2005 the Appellate Division granted the State's motion for leave to appeal and denied its motion for a summary reversal. The Appellate Division remanded the matter to the trial court for an accelerated hearing on the validity of breath tests for alcohol, obtained through the use of Alcotest instruments.

On December 14, 2005 our Supreme Court certified the appeal pending in the Appellate Division on its own motion pursuant to R. 2:12-1. The Court vacated the remand to the Law Division and remanded the matter to retired Appellate Division Judge Michael Patrick King, to preside as a Special Master. The Court ordered the Special Master to conduct a hearing and report his findings and conclusions on an accelerated basis. 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 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 Master's 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 Master's discretion, the participation of entities or persons as amici curiae or, to the extent necessary in the interests of justice, as interveners 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 7 parties and amici curiae, which service may be effectuated by the posting of the report on the Judiciary's website . . . .

The Court also ordered the parties, and permitted all amici curiae who participated in the plenary hearing, to serve and file initial briefs within fourteen days of the filing of the Special Master's report as well as responses, if any, within ten days. It further ordered the Clerk to set the matter for oral argument on the first available date after completion of briefing by the parties. Finally, the Court ordered the stay of N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and directed all Superior and Municipal Court judges before whom such proceedings were pending, to ensure strict enforcement of the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.

On January 9, 2006 the Special Master granted to the Association of Criminal Defense Lawyers of New Jersey (ACDL) leave to appear as amicus curiae. On January 23, 2006 the Special Master also admitted the New Jersey State Bar Association (NJSBA) as amicus curiae, under R. 1:13-9, in view of the matter's public importance.

On January 10, 2006 the Court sua sponte issued an order addressing issues that affected the prosecution of N.J.S.A. 39:4-50 offenses statewide. The Court ordered all prosecutions and appeals which did not involve the Alcotest 7110 to proceed in the normal course. The Court, however, ordered the stay of prosecutions and appeals involving repeat offenders and the execution of their sentences where the convictions were based solely on Alcotest readings. The Court also ordered that first- offender prosecutions proceed to trial based on clinical evidence when available and on Alcotest readings. It ordered, however, that the execution of sentences for all first offenders be stayed pending disposition of the Court's final decision on the Alcotest 7110's reliability, unless public interest required their immediate implementation.

As explained by the Administrative Director, Judge Carchman, in a clarifying memorandum to municipal court judges dated January 17, 2006, a court could admit evidence of an Alcotest reading, over the objection of defense counsel, without first holding a hearing on the instrument's scientific reliability. He further explained that under N.J.S.A. 39:4- 50(a)(2) and (3), the penalty for repeat offenders was the same whether the finding of guilt was based on observation or blood alcohol levels. However, for first offenders, the penalty could vary, making the Alcotest reliability hearing of fundamental importance.

On March 15, 2006 the Court entered an order directing the Special Master to designate an independent expert or experts. Upon deliberation and consultation with the parties and amici curiae, the Special Master determined that a court-appointed expert was not necessary for proof purposes, especially because of the quasi-criminal nature of the proceedings. Meanwhile, discovery proceeded. On February 3, 2006 the Special Master entered an order directing the State to give defendants certain information, documents and materials pertaining to the Alcotest 7110's firmware, software, algorithms, electronic schematics, and source codes. Among other things, the discovery order recognized that the exchange of firmware and software might require a protective order to be submitted by the State or manufacturer for court approval. On February 17, 2006 the Special Master entered a supplemental discovery order directing the State to lend three Alcotest 7110s to defense counsel and one to counsel for the amicus NJSBA.

Among other things, the supplemental discovery order also allowed the manufacturer Draeger Safety Diagnostics, Inc. (Draeger) to apply to intervene in this matter, especially because of the issue of "trade secrets."

Draeger objected to the discovery orders claiming that they permitted the release of trade secrets and proprietary information. On February 23, 2006 Draeger's intellectual property counsel prepared a proposed protective order and sent it to the State for submission to the court.

Draeger's proposal included a request for indemnification from defense counsel. In response to defendants' objections to Draeger's initial draft especially to the request for indemnity and a revised proposal by the State, the Special Master requested defense counsel to submit a proposed protective order.

Draeger then offered to make copies of the Alcotest7110's source codes available to the Special Master and explain them to him during an in camera session provided there would be no testimonial record and the data would be returned after his inspection and decision. Again, defense counsel objected, explaining that the purpose of requesting the source codes and algorithms was to allow their expert to review and test them.

On April 19, 2006 defendants submitted their proposed protective order. In anticipation of a court-issued protective order, the State provided to defense counsel and the amicus the four Alcotest 7110 instruments for their inspection.

On April 26, 2006 the Special Master entered a protective order which required all discovery information in which Draeger asserted an intellectual property right so marked. With regard to the marked discovery, the protective order required: (1) that the information could not be disclosed by parties or amici curiae, or by consultants and experts given access to it; and (2) that the information must be returned to Draeger following the conclusion of all litigation. The protective order also extended its terms and restrictions for three years from the termination of litigation or until such time as the marked discovery information entered the public domain, whichever came first, and stated that the violation or breach of any condition would be grounds for court contempt action, civil damages or other appropriate sanctions after a hearing where the accused would be afforded due process under R. 1:10. Additionally, if Draeger did not cooperate with discovery, the protective order allowed the Special Master to draw any appropriate negative inferences in his decision on the Alcotest 7110's reliability. The protective order did not include an indemnification provision.

Shortly after, on April 28, 2006, the State submitted comments on its revised proposed protective order. In part, the State explained that the indemnification provision would require those defendants who received the instruments to indemnify and hold harmless the State from any damage that might result from the firmware's use or installation.

On May 15, 2006 Draeger wrote to the State with its objections noting that it would not cooperate with discovery unless the court entered a "satisfactory" protective order. On May 22, 2006, after consideration of Draeger's expressed objections, the Special Master amended the protective order by: further limiting access to the information disclosed; extending the term and restrictions from three years to as long as the marked discovery information remained a trade secret or until it entered the public domain; and providing that other sanctions might be appropriate in cases where Draeger demonstrated at a hearing that it would suffer irreparable harm and there was no adequate remedy at law.

On June 15, 2006 Draeger wrote again to the State indicating that the amended protective order was an "improvement" but still did not provide adequate protection. Draeger continued to insist that the Special Master adopt an order substantially similar to its initial proposal. For example, Draeger contended: it should be provided with the identity of experts who would be given the marked information in discovery; it should not have to appear before the Special Master at a hearing to demonstrate irreparable harm; it should be allowed to demonstrate its intellectual property rights or prove its need for injunctive relief in a forum other than before Judge King; and it should not be forced to comply with an order essentially based upon a proposal by defendants who did not have any trade secrets or proprietary information to be protected.

Draeger also advised the Special Master and the State that it "recently" had adopted a "new policy" regarding confidential disclosure of the Alcotest 7110's source codes and other trade secrets to those individuals including parties involved in the Chun litigation who accepted the following conditions: (1) individuals who agreed to sign appropriate non-disclosure and confidentiality agreements prepared by Draeger; (2) individuals who agreed to review the information in a room at Draeger's offices in Durango, Colorado; (3) individuals who agreed to allow a Draeger representative to be present in the room when they reviewed the information; and (4) individuals who agreed not to take photographs, make copies by writing or other means, or make any recordings of the information. To maintain its "non-party status," Draeger again declined the Special Master's offer to meet with him or participate in any conferences. Incidentally, Draeger has no United States or foreign patent protection on the Alcotest 7110.

Neither the State nor defendants expressed any interest in complying with Draeger's fastidious conditions on the source codes' disclosure. The Special Master also declined to further amend the protective order. Consequently, discovery and the exchange of documents and expert reports proceeded without Draeger's participation. This created an anomalous situation: the manufacturer was not a party to the defense of its product. The State had to defend the Alcotest 7110 derivately.

Pursuant to N.J.R.E. 104, the Special Master held forty-one full days of evidentiary hearings which commenced on September 18, 2006 and concluded on January 10, 2007. The parties and amicus NJSBA submitted proposed findings of fact and conclusions of law regarding the scientific reliability of the Alcotest 7110. As further ordered by the Court, the Special Master has issued his findings and conclusions in this matter within thirty days of the completion of the hearings.

II. STANDARD OF PROOF The key issue is whether the Alcotest 7110 is a scientifically reliable instrument for determining the alcohol content of the breath and blood. The resolution of this question will assist the Supreme Court in determining whether the results of Alcotest 7110 readings generally may be admitted in evidence and support convictions under N.J.S.A. 39:4-50 and cognate statutes.

Under New Jersey's statutory scheme, a driver of a motor vehicle is guilty of a so-called "per se" violation of N.J.S.A. 39:4-50(a) at a "blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood." Thus, New Jersey is a "blood" alcohol jurisdiction as opposed to a "breath" alcohol jurisdiction. See State v. Downie, 117 N.J. 450, 469-71 (1990) (Stein, J., dissenting). A person "under the legal age [twenty-one] to purchase alcoholic beverages" while operating a motor vehicle "with a blood alcohol concentration of 0.01% or more" is subject to special penalties imposed by N.J.S.A. 39:4- 50.14 (the so-called "kiddie drunk" law). Operation of a commercial vehicle "with an alcohol concentration of 0.04% or more" is separately prohibited by N.J.S.A. 39:3-10.13. Interestingly, this latter statute defines alcohol concentration either by "blood" or "breath," not by "blood" alone, as does N.J.S.A. 39:4-50. See N.J.S.A. 39:3-10.11. All agree that this "commercial vehicle" section is rarely, if ever, invoked by the police.

The .08% blood alcohol level must be enforced by the several states under pain of withholding of federal highway-aid funds. See 23 U.S.C.A. §§ 163 and 410; 23 C.F.R. § 1225. We understand that New Jersey is in compliance with the federal mandate as of 2004. See L. 2004, c. 8 § 2 (amending N.J.S.A. 39:4-50(a), eff. April 26, 2004); State v. Chambers, 377 N.J. Super. 365, 371 (App. Div. 2005).

To allow the admission of scientific evidence in criminal cases, there must be general acceptance by the relevant scientific community. State v. Harvey, 151 N.J. 117, 169-70 (1997) (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Johnson, 42 N.J. 146, 170-71 (1964); Foley, 370 N.J. Super. at 349. To establish general acceptance, test results must have "'sufficient scientific basis to produce uniform and reasonably reliable results [which] will contribute materially to the ascertainment of the truth.'" Romano, 96 N.J. at 80 (quoting State v. Hurd, 86 N.J. 525, 536 (1981)). "Proving general acceptance 'entails the strict application of the scientific method, which requires the extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.'" Harvey, 151 N.J. at 171 (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 436 (1991)). Given the rapidly changing nature of modern science, courts recognize that continuing research may affect the scientific community's acceptance of a novel technology. Id. at 167-68. Thus, newly-devised scientific technology essentially achieves general acceptance only after it passes from an experimental to a demonstrable technique. Id. at 171.

General acceptance, however, does not require unanimous agreement about the accuracy of the scientific test or the infallibility of its methodology, techniques or procedures. Ibid. Nor does it require the exclusion of the possibility of error. Ibid.; Romano, 96 N.J. at 80. Indeed, our courts recognize that "[e]very scientific theory has its detractors." Harvey, 151 N.J. at 171.

In a criminal case where defendants challenge the prosecution's attempt to introduce a novel type of scientific evidence, a court may conduct a hearing under N.J.R.E. 104 to determine whether the scientific evidence is generally accepted. Id. at 167. Proof of its general acceptance can be obtained through expert testimony, publications or judicial opinions. Id. at 172-76; Foley, 370 N.J. Super. at 350. The party offering the evidence has the burden to "clearly establish" each of these methods. Harvey, 151 N.J. at 170; Foley, 370 N.J. Super. at 349 ("To establish general acceptance within the scientific community the proponent must meet the clear and convincing standard of proof.").

At a N.J.R.E. 104 hearing, however, proofs need not comply with the other rules of evidence, except that N.J.R.E. 403 may be invoked and valid rules of privilege are recognized. Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104(a) (2006). Thus, hearsay evidence is admissible. Ibid. When a showing of general acceptability has been made, courts will take judicial notice of the scientific instrument's reliability. Romano, 96 N.J. at 80-82 (holding that the breathalyzer's general acceptance within the scientific community demonstrated its scientific reliability and that such reliability was the subject of judicial notice in all cases under N.J.S.A. 39:4-50).

The State must prove by clear and convincing evidence that the Alcotest7110 is generally accepted in the relevant scientific community even if such acceptance is not unanimous for the purpose of determining the concentration of alcohol in the blood. If the Alcotest7110 is a scientifically reliable instrument for measuring blood alcohol, the test results are admissible in evidence only in those cases where the State clearly establishes that: (1) the instrument was in proper working order; (2) the operator was qualified to administer the instrument; and (3) the test was administered in accordance with official instructions and New Jersey State Police protocol for the instrument's use. See Romano, 96 N.J. at 81.

The following is the outline and link to the full opinion: http://www.judiciary.state.nj.us/opinions/supreme/State_v_Chun_Special_Masters_Report.pdf SUPREME COURT OF NEW JERSEY September Term 2005 Docket No. 58,879

STATE OF NEW JERSEY,

Plaintiff,

v

JANE H. CHUN, et al Defendants.

FINDINGS AND CONCLUSIONS OF REMAND COURT

On remand from the Supreme Court of New Jersey: December 14, 2005


KING, P.J.A.D., SPECIAL MASTER

TABLE OF CONTENTS

I. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . 4

II. STANDARD OF PROOF . . . . . . . . . . . . . . . . .14

III. THE FACTS

1. CHEMISTRY AND PHYSIOLOGY . . . . . . . . . . . 19

2. HISTORY . . . . . . . . . . . . . . . . . . . 23

3. THE INSTRUMENT . . . . . . . . . . . . . . . . 33

IV. EXPERT TESTIMONY

1. HANSUELI RYSER . . . . . . . . . . . . . . . 47

2. THOMAS A. BRETTELL, Ph.D. . . . . . . . . . 73

3. SGT. KEVIN M. FLANAGAN . . . . . . . . . . . 103

4. EDWARD CONDE . . . . . . . . . . . . . . . . 134

5. ROD G. GULLBERG . . . . . . . . . . . . . . 143

6. SAMUEL E. CHAPPELL, Ph.D. . . . . . . . . . 156

7. BARRY K. LOGAN, Ph.D. . . . . . . . . . . . 162

8. J. ROBERT ZETTL . . . . . . . . . . . . . . 175

9. PATRICK M. HARDING . . . . . . . . . . . . . 185

10. NORMAN J. DEE . . . . . . . . . . . . . . . 196

11. STEPHEN B. SEIDMAN, Ph.D. . . . . . . . . . . 202

12. GERALD SIMPSON, Ph.D. . . . . . . . . . . . 210

13. MICHAEL PETER HLASTLA, Ph.D. . . . . . . . . 219

V. FINDINGS AND CONCLUSIONS OF LAW

1. IN THE WAKE OF DOWNIE . . . . . . . . . . . 228

2. ADMINISTRATIVE SAFEGUARDS . . . . . . . . . . 238

3. SOURCE CODES . . . . . . . . . . . . . . . . 241

4. RFI-EMI INTERFERENCE . . . . . . . . . . . . 248

5. FOUNDATIONAL EVIDENCE . . . . . . . . . . . 250

6. BREATH VOLUME AND FLOW RATE . . . . . . . . 251

7. CENTRALIZED DATA MANAGEMENT . . . . . . . . . 253

8. NON-OPERATOR DEPENDENT . . . . . . . . . . 254

9. BREATH TEMPERATURE SENSOR . . . . . . . . . 255

10. TOLERANCES FOR THE TWO BREATH TESTS . . . . 256

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . 258

APPENDIX A - TRANSCRIPTS . . . . . . . . . . . . . . 260

APPENDIX B - BIBLIOGRAPHY

1. RECOMMENDED . . . . . . . . . . . . . . . . 262

2. ANCILLARY . . . . . . . . . . . . . . . . . 269

Judge King's Conclusions of Fact and Law http://www.judiciary.state.nj.us/opinions/supreme/State_v_Chun_Special_Masters_Report.pdf: page 230 Against this background, we reach these conclusions of fact and law.

1. Because of the strong evidence presented by the State on the scientific accuracy of the Alcotest 7110, we find the instrument acceptable for evidentiary breath tests in New Jersey, when accompanied by the appropriate foundational proofs. Indeed, we find the Alcotest 7110 with proper foundational proofs much more scientifically reliable and independent of operator influence, intentional or inadvertent, than the breathalyzer. Of course, the multiple-step testing protocol must be meticulously followed before the test result is admitted in evidence.

2. The State's proofs on the question of the reliability of the partition or blood-breath ratio largely mirrored the State's presentation in Downie. We do not doubt the integrity and sincerity of any witness in this proceeding, presented either by the State or defense. At most, there were shades of 231 differences about interpretation of scientific data or understandable dispute over au courant scientific theory. We find no reason in the evidence to doubt the continuing validity of the underlying theory of a 2100:1 blood-breath ratio. The testimony of Dr. Hlastala and Dr. Simpson, on the Heifer (Bonn) and other data, presented by the defense is interesting but certainly not convincing. It perhaps may represent the next frontier in the forensic science of evidential breath testing if eventually supported by sufficient proofs but it is not yet vigorous enough, if it ever will be, to up-root the science explicated and found persuasive in Downie and fortified by the extensive proofs before this court. Thus we reject the defense withness’ basic premise that the 2100:1 ratio and present breath-testing technology is fundamentally unreliable, especially when adopted, as it has been in New Jersey, with caution and appropriate leeway, so as not likely to ensnare the innocent. Of course, here the defendant has the benefit of the lowest of four independent readings (two IR and two IC) derived from two separate breath samples. This is the foremost safeguard.

2. Administrative Safeguards In order to provide the State and defendants with necessary information regarding the instrument used in each test, the 232 State plans to add, in the next upgrade and modification of the firmware, additional administrative safeguards which this court finds must include:

a. The State must list the temperature probe serial number and probe value of that temperature probe on any report where such information is relevant, including the AIR, New Standard Solution Change Report, and Calibration Check documentation Calibration, Control Test Part I, and Linearity Part II Reports.

b. The State must publish any firmware revisions through some reasonable mechanism, including placing this information on the State Police website.

C. In order to ensure equality control and firmware version control, the State must continue the practice of strictly limiting access to or "locking" the firmware so that changes to the firmware can be done only by the manufacturer or one of the State Police breath test coordinators authorized pursuant to N.J.A.C. 13:51-2.

d. All valid breath test results are reported on the AIR to three (3) decimal places. When a final breath test result is reported and recorded on the AIR, that value is always the lowest value of the acceptable readings within tolerance. That value is reported and recorded as a truncated number on the AIR 233 to only two (2) decimal places. We reject the defenses' contention that the AIR should not be admitted into evidence.

e. In instances where a defendant is tested on an Alcotest 7110 and there is no reportable breath test value on the AIR for that defendant, the AIR must clearly show the source and reason why no breath test result was reported for that breath sample. This non-reportable test event in itself shall not constitute a legal determination of refusal to submit to chemical breath testing under the implied consent statutes.

f. The firmware currently in the Alcotest NJ Version 3.11, and any future modifications or upgrades of that present firmware, does not impact upon or affect the scientific reliability, accuracy or precision of the Alcotest evidential breath test instrument to detect, analyze and accurately report a breath alcohol reading. In sum, the Alcotest 7110, NJ 3.11 currently in use is scientifically reliable.

g. This court recognizes that the Alcotest 7110 is not dependent on the breath test operator to record the breath test reading or result. Operator involvement is limited to inputs of administrative information. The operator must strictly follow the test protocol and the instructions or "prompts" on the LED screen during the testing process. All analytical functions after this are performed by the Alcotest 7110, and are outside of and beyond the control or influence of the breath test 234 operator. This is a significant advantage over the breathalyzer. If the test protocol or instructions are violated in any respect, the BAC reading must be rejected as evidence.

h. As to discovery data, the collected centralized historical data described in V(7) shall be provided for any Alcotest 7110 relevant to a particular defendant's case in a digital format readable in Microsoft Access or similar program generally available to consumers in the open market. When such data includes tests from cases concerning defendants not part of the requesting defendant's case, the information provided will include departmental case numbers, ages, and breath temperatures or other relevant scientific data on those other defendants' tests but not their personal identifying information, such as name, address, birth date, drivers license number, license plate number, or social security number.

i. The revised firmware shall require that the Ertco-Hart Digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and Technology is in proper operating condition and that the serial number of such devices be listed on all reports where such information is relevant, including calibration, certification, and linearity reports.

j. The State shall provide regular, continuing, and meaningful training for attorneys and their experts consistent 235 with that provided for certification of breath test operators and breath test coordinator instructors pursuant to the New Jersey Administrative Code at N.J.A.C. 13:51-1.1 to 1.14 and N.J.A.C. 13:51-2.1 to -2.2, respectively.

3. Source Codes

the discovery of the source codes by the defense pursuant to a reasonable protective order was rejected by Draeger from the outset. Conventional discovery was made difficult because Draeger was not a formal party and declined this court's invitation to intervene and defend its product in the customary manner. Eventually, Draeger offered to explain the source code aspect to this court in camera without a record. The defense understandably rejected such an arrangement. Draeger than suggested a very restricted review of the source codes under highly-controlled conditions, in Durango, Colorado. This offer was understandably spurned by the defense as impractical and unhelpful.

Finally, during this trial Draeger offered its source codes of some 896 pages and 53,774 lines for examination in New Jersey at the trial site by defense experts. By this time, it was too late. Such an examination would have taken weeks and considerable expense for the defense, which did not then have qualified electronic experts at hand, was ostensibly without adequate financial resources for the task, and would have delayed the trial perhaps into the summer. The parties seemed at a stand-off concerning the source code issue and this court was left to decide whether or not the so-called "black box" verification of the computer system in the Alcotest 7110 was scientifically reliable.

At this point the defense and Draeger decided to attempt negotiating a resolution to this stand-off. This court had warned Draeger that it could make a negative inference against the reliability of the Alcotest 7110 because of the withholding of relevant information. We stress here that the State was always most cooperative in discovery and never had possession of the source codes to turn over to this court or defense. Finally, the defense and Draeger agreed to terms to insure the on-going integrity of the software/firmware codes and algorithms in a document termed ADDENDUM A. These terms were agreed to by Draeger and its counsel. Therefore, we conclude that the software and firmware, which is integral to all functions, is presumed reliable in our courts but only if the terms expressed in the attached ADDENDUM A are scrupulously followed by Draeger.

236

ADDENDUM A

237

(1) The software source code will be examined by an independent software house agreeable to Draeger and the parties in this case. This software house will examine the source code for obvious concerns within the code, and also for consistency with the algorithms as documented in the software. The source code, with the algorithms as documented in the software, will be provided to the independent software house under a confidentiality agreement acceptable to Draeger and will not be disclosed to the public, thereby preserving whatever trade secrets Draeger asserts. However, the software house will certify to the State and the public that the software properly employs the algorithms and that no errors exist in the source code.

(2) The software will be programmed so that it will be "locked" and incapable of change without such change being printed out on any alcohol influence report produced by an Alcotest 7110 MKIIIC in which it is employed. The "software lock" will be verified by the independent software house specified in (1) and any subsequent revisions made under the process contemplated which result in subsequent software versions will be reflected by the printout of the new version numbers on the alcohol influence report.

(3) The Alcotest 7110 MKIIIC using the newly-created software version, after undergoing the source code review as specified in (1), will be tested against and measured in compliance with the O.I.M.L. specifications adopted and current at the time of such tests. This examination will be undertaken by a laboratory in the United States, and the software will be revised, if necessary, in accordance with any deficiencies in the event that the O.I.M.L. specifications are not met for anticipated version NJ 3.12. In the event the O.I.M.L specifications are not met and the software is modified, the modified software will be presented to the independent software house indicated in (1) for its review and certification. It is expected that if the software house is satisfied the changes necessary are minor, the secondary review will be substantially modified compared to the initial review.

(4) Draeger agrees to sell to New Jersey attorneys and experts Alcotest 7110 MKIIIC units on the same terms as are in force with the State of New Jersey at the time the purchase was made with the then-current version of the New Jersey software. Draeger also agrees to offer training to the purchasers and the purchaser's employees in regard to use of the Alcotest 7110 MKIIIC on reasonable monetary terms and to warrant and service the instruments at the same rates as paid by the State of New Jersey. In the event that future software revisions take place, Draeger will facilitate upgrades of purchased Alcotest 7110 MKIIIC units to the then-currently available New Jersey software version. (Although Draeger understands that this entire agreement is subject to review and reasonable approval by the State of New Jersey, this power is clearly within the State's purview. However, the intent of this clause is to make all current versions available to all non-governmental owners for a reasonable administrative fee.)

(5) Further, it is contemplated that in the future when the State of New Jersey requires any further software revisions, the State would give notice of such to the public and the independent software house would examine the source code changes and determine whether a complete review is necessary or whether the software house could certify that the changes made would not require an additional software review and O.I.M.L. testing. In the event of any major changes in the operational conditions of the instrument, a new and complete O.I.M.L. procedure laboratory examination, or such subset of such tests as the laboratory may determine are appropriate in light of the extent of the changes per the revision, would be required. To the extent possible, the parties envision using the same software house and testing lab so as to have the benefits of institutional memory; the future stability of those organizations is an important element to consider in deciding which to retain for these purposes.

This court will not indulge in any negative inference against Draeger because of its grudging attitude earlier with respect to disclosure of the source codes. The negotiated ADDENDUM A, and Ryser's forthright testimony, encourages this court to have confidence in Draeger's good faith with respect to the source codes which record and communicate the scientific findings which in turn become the Alcotest 7110's AIR. This court also finds that the "black box" testing of the computer system and source codes used to date is scientifically reliable. This court is convinced that the entire system is indeed reliable for breath testing and reporting breath alcohol measurements when the prescribed protocols are strictly followed by the operator. This conclusion is fortified by the parties' agreement to this reliability undertaking to insure fairness to the State and future defendants. The expense of the examination of the codes, and upgrades described in (1) to (5) will be on the account of Draeger. The reasonable administrative cost of making these current versions and changes generally available shall be at the cost of the persons desiring same, e.g., defendants, attorneys, Alcotest 7110 purchasers, and educational associations.

4. RFI-EMI Interference The Alcotest 7110 used in New Jersey is well-shielded against electronic interference. The New Jersey process and procedure of administration of evidential breath tests provides adequate protection against both radio-frequency and electro magnetic interference. In addition to the carrying-case's shield, Draeger designed the instrument's five-layer motherboard to suppress RFI. During training, operators are instructed that cell phones or hand-held radio transmitters should not be used or stored in the area where the test is administered. Interference or abnormal test result signals are available to the operator visually through immediate information on the display screen (LED) and then on the AIR printout with an error message. BAC test result is reported on the AIR. The shielded Alcotest 7110 case has passed various tests for interference, including OIML, Volpe Lab, and State police testing. In order to further avoid potential interference a policy has been established and promulgated to all State and local police departments that any possible sources of RFI or EMI, such as walkie-talkies and cell phones, be banned from any area in proximity to the Alcotest instrument. The shields in the casing, the motherboard, these warnings, and the instrument's error messages provide adequate safeguards to insure scientific reliability in this regard.

5. Foundational Evidence This court concludes that a proper foundation for the admission of an Alcotest 7110 reading shall include these elements.

a. The testimony of the operator that the customary procedures have been meticulously followed and the production of the operator's credentials.

b. These listed documents must be provided by the municipal prosecutor in discovery and may be admitted into evidence without formal proof in the discretion of the judge, if kept in the normal course of the State's business. In the event of a trial with an unrepresented defendant, these foundational documents must be placed in evidence. These documents are:

i. Calibrating Unit, New Standard Solution Report, most recent change and the operator's credentials of the officer who performed that change;

ii. Certificate of Analysis 0.10 Percent Solution used in New Solution Report;

iii. Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;

iv. Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;

v. Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument unless more relevant NJ Calibration Records (including both Parts I and II) are offered;

245 vi. Calibration Check including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests;

vii. Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control);

viii.Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration- Linearity);

ix. Calibrating Unit, New Standard Solution Report, following Calibration;

x. Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the 3 simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration- Linearity tests;

xi. Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and

xii. Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.

6. Breath Volume and Flow Rate

A suspect must deliver breath samples of a minimum volume of 1.5 liters. The minimum blowing time is 4.5 seconds. The minimum flow rate is 2.5 liters per minute. The breath sample when analyzed by the IR detector must reach or approach an equilibrium that is the infrared measure of the breath alcohol in the sample must not differ by more than 1% over. 25 seconds. These are minimum criteria. 246 The defense argues for a minimum volume of 1.2 liters for all suspects. There is substantial credible evidence in the record that women over age sixty consistently have difficulty in reaching the 1.5 liter minimum. We agree with the defense to this extent only and so find. The minimum for women age sixty and over should be 1.2 liters. We find no credible evidence to support the theory that the minimum should be lower than 1.5 liters for the general population. The State has stressed persuasively that 1.5 liters and upwards provides a good deep breath sample for testing. We also see no need to impose an overall maximum of 2.5 liters in volume as suggested by the defense. As we understand the evidence, the maximum volume usually tested is up to 3.0 liters. We find no evidence that a sample up to that 3.0l liters or higher is unreliable as a measure of the breath alcohol in the subject, or that the mantra, "The longer you blow the higher [BAC result] you go" is scientifically unfair to tested subjects. We are convinced that a higher volume than 1.5 liters simply presents a better sample of deep lung air for analysis by the instrument. The State has assured us that the Alcotest 7110 can be programmed to set a minimum of 1.2 liters for women over age sixty when this information is obtained in the personal identification data from the subject and when so programmed and 247 properly alerted, the instrument in the particular case will print out a valid BAC result.

7. Centralized Data Management

The Alcotest 7110 has the ability to communicate through the modem port with a central server by using a dedicated telephone line. This is not done presently. The State should promptly implement this improvement. This would allow daily or weekly uploads of all data from each Alcotest 7110 in the State automatically. The centralized data then can be viewed from a compatible data base program. Breathalyzers were routinely checked in the field every six to eight weeks by State Police coordinators. Presently, the Alcotest 7110s are physically checked only once a year or sooner, if needed. This proposed transparent, easy access to State-wide digital data will help very much to assure quality control and alert the State Police to problems arising in the field. Dr. Brettell testified that this central data collection was desirable and the State should and intended to so proceed promptly.

This court strongly recommends that the State obtain and deploy a software program to create and maintain a centralized data base of digital information stored by all Alcotest 7110s throughout the State. This data should be uploaded, either 248 daily or weekly, by a modem or internet connection to a central State location and maintained for at least ten years.

8. Non-Operator Dependent Unlike the breathalyzer, the Alcotest 7110 is not operator dependent. With the breathalyzer, the reading and recording of BAC was based only on the observations of the operator as to where the needle indicator stopped on the dial. The operator simply wrote down his observation of the reading. No contemporaneous, machine-generated permanent record was produced by the breathalyzer. With the Alcotest 7110 a permanent record, the AIR, is printed out and a copy given to the suspect after the test is completed. The AIR provides a complete explanation of the multiple-step test procedure as well as historic information about the arrest event and the subject, and some history about the use and testing of the Alcotest 7110 instrument. The Alcotest 7110 does not require manipulation of the physical components of the instrument by the operator to reach a BAC result, as does the breathalyzer. Once the Alcotest 7110 is activated, the entire process is automatic until the BAC result is printed out, unless the test is aborted without any BAC results. The operator has no control over the testing process itself or the result. 249

The objectivity of the Alcotest 7110 compared to the breathalyzer is a considerable advantage: it combines both accuracy, contemporary documentation of the result, and elimination of the ability of the operator to falsify or exaggerate the test outcome. This independence from potential operator influence and a permanent machine-printed record are decided advantage over the breathalyzer. These features are very helpful in avoiding situations like State v. Gookins, 135 N.J. 42 (1994), where the arresting officer falsified the breathalyzer results in drunken-driving cases to improperly coerce guilty pleas and obtain convictions.

9. Breath Temperature Sensor

Most breath analyzers used in the United States operate on the assumption that the temperature of an expired breath sample is 34 degrees C. Recent scientific research supports the proposition that the temperature of an expired breath sample is actually almost 35 degrees C. For each degree above 34 degrees C, breath tests will increase BAC results by 6.58%. While the relevant scientific community at this time does not generally accept breath temperature monitoring as necessary, this court finds that the technology to control this variable is accurate and readily available both Germany and Alabama currently use the breathe temperature sensor available from Draeger. 250 We strongly recommend that New Jersey employ Draeger's breath temperature sensor. Unless such breath temperature sensing is implemented, all breath test results should be reduced downward by 6.58%, as done currently in Alabama. This will serve to reduce the overall margin of error from the Alcotest 7110 and increase confidence in the reported BAC as more accurate to support a finding of guilt. This court finds that until recently this technology was not used because it was either not available, too expensive or inconvenient to implement, or simply too much trouble but these reasons to abjure use of the breath temperature sensor are no longer persuasive to us. We find this is a biological variable which can and should be controlled.

10. Tolerances for the Two Breath Tests

The two breath samples when tested must be within a certain tolerance of each other for the breath test to be considered reliable. There has been considerable confusion and dispute over the appropriate allowable tolerances between the two breath samples. If the two samples are not within the tolerance range a third test is forced to determine if the tolerance can be met and the tests are reliable. The Downie tolerance standard was .01 but this was enlarged by Dr. Brettell in the NJ 3.8 version of firmware to .01 or 10% 251 of the difference between the highest and lowest of the four readings (two EC and two IR), whichever is greater. NJ 3.8 was used in the Pennsauken pilot program which culminated in the Foley decision. In his testimony before this court, Dr. Brettell confirmed that the written opinion in Foley mistakenly reported that he had testified that the NJ 3.8 software had a precision tolerance of .01 or plus or minus 10% of the mean of all four readings, whichever is greater. He testified before us that the NJ 3.8 formula was actually as described above, ".01 or 10% of the difference between highest and lowest of the four, whichever is greater." Dr. Brettell then changed the formula for the NJ 3.11 firmware. He expanded the precision tolerance to "+/-.01 or +/— 10%" of the mean of the four readings (two EC and two IR) whichever is greater. This doubled the allowable tolerance between readings from NJ 3.8 (10%) to NJ 3.11 (20%). With a mean of 0.20, for example, the allowable tolerance in NJ 3.11 is 0.04, while with NJ 3.8 it is 0.02 and under Downie only 0.01. In testimony before us Dr. Brettell said that he now has reconsidered the tolerance formula and concluded that it should be reduced or "tightened up." We now recommend a tolerance of plus or minus .005 or plus or minus 5% (10% overall) of the mean of the four readings (two EC and two IR) whichever is greater. 252 We consider this a reasonable tolerance range in all of the circumstances. Of course, only the lowest of the four readings will be admitted in evidence, if all are within this tolerance range. We concur fully with Dr. Brettell that a tightened tolerance range is the best result to use for purposes of precision and accuracy, we hope without forcing unnecessary third tests. Use of the earlier formulas does not invalidate the test results rendered in those cases. They were not improper and inadmissible but our recent recommendation is simply a better, tighter range for precision and accuracy.

VI. THE END This court finds that the Alcotest 7110, NJ 3.11 version is and has been scientifically reliable, under the clear and convincing evidence standard, when the test protocol is carefully followed by the operator and the instrument is functioning properly. This court is of the view that if our recommendations are followed any possible doubt on the accuracy of the instrument will be minimized. Incorporation of the dual IR and EC technologies enhances analytical accuracy for alcohol (ethanol) and provides reassurance of a quality result. We are convinced that the Alcotest 7110 is the state-of-the-art technology available and if implemented with our suggestions will provide suspects and the general public the best possible assurance for the protection of individual rights and for public safety. The recent motion filed on behalf of Draeger to appear as amicus is denied without prejudice, of course, to Draeger's right to make a prompt application to the Supreme Court for that relief. Hire a Trial Attorney To Represent You If Charged With a Criminal Or Serious Motor Vehicle Matter Kenneth Vercammen's Law office represents individuals charged with criminal, drug offenses, and serious traffic violations throughout New Jersey. Our office also helps people with traffic/municipal court tickets including drivers charged with Driving While Intoxicated, Refusal and Driving While Suspended. Criminal and Motor vehicle violations can cost you. You may have to pay high fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. DMV/MVC [Motor Vehicle Commission] or have your license suspended. Don't give up!

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