Alcotest is being phased out as New Jersey's drunken-driving detector within the next three years, but two defense attorneys are pushing for it to be scrapped immediately.
In papers filed June 14, Evan Levow and Matthew Reisig ask the state Supreme Court to declare the device unsuitable in light of the state's unwillingness to make court-ordered software and other revisions.
The Attorney General's Office has asked for relief from carrying out the revisions, saying time and resources would be best spent finding a new device.
But Levow, of Cherry Hill, and Reisig, of Freehold, say the state's position constitutes a denial of due process. They say the Alcotest should be junked and, until a replacement is found, drunken drivers should be spotted the old-fashioned way: by police observations of watery eyes, unsteady gait and alcohol on the breath.
This latest challenge to Alcotest began on March 15 when Levow and Reisig filed papers with the court, claiming that the Alcotest database was incomplete and corrupt and that nine required software fixes had not been made.
They said the state was not complying with database and software mandates in State v. Chun, 194 N.J. 54 (2008), the seminal Supreme Court decision finding Alcotest readings scientifically reliable.
The mandates were conditions to the court's imprimatur to the device in Chun.
One of the required software upgrades would correct the device's tendency to give reduced chemical reactions over time, resulting in under-reported amounts of alcohol. Another would "re-enable catastrophic error detection." Still another would reduce the minimum breath sample for women over 60 to 1.2 liters, from the current default volume of 1.5 liters, based on women's smaller lung capacities.
The revisions, as well as creation of the database, had been recommended by retired Appellate Division Judge Michael King, a special master who advised the Supreme Court on the Alcotest.
The defense lawyers' papers also criticized the state's decision to charge fees for use of the Alcotest website and claimed its contents differed from raw data in supporting documents.
They claimed they discovered corrupted data for 15 of 45 Alcotest machines by comparing individual reports, obtained from CD-ROMs created by state technicians, to the same reports on the state website.
In some cases, data showed errors on the CD-ROMs, but not on the database.
Because of the errors, the repository does not have integrity, Levow and Reisig contend.
In court papers filed in reply to the defense lawyers' motion, the state said on May 24 it would seek a replacement for the Alcotest because its manufacturer, Draeger Safety Diagnostics, would warranty it for only three more years.
As a result, the state asked for relief from the database and software requirements.
In response, Levow and Reisig filed their June 14 papers, calling the state's answer "unprecedented in New Jersey's history."
They said the state's filing "necessarily mandates a re-examination of the overall scientific reliability of the Alcotest."
In addition, state officials' "mismanagement" of the Alcotest program, "highlighted by their pervasive mind-set of obfuscation, represents an utter rejection of the Court's emphasis on transparency in implementing all aspects of the Chun order," Levow and Reisig wrote.
With more than five years having elapsed since Chun, the state has kept silent about its implementation of the decision, the defense lawyers stated.
The court should view the case from the perspective of hindsight, they said.
They questioned whether the court would have held the Alcotest reliable had it known in "March 2008 that the state would take 4 years and 8 months merely to create an incomplete and sanitized repository, that the state would refuse to implement … the nine substantive software changes … that the state would not seek leave of the court requesting forbearance of any of the provisions of the order for over 62 months, and that the state would ultimately file a motion to have the court vitiate its own order."
A spokesman for the Attorney General's Office, Peter Aseltine, declines to comment on the defense lawyers' filings.