A federal judge in Newark on Monday dismissed a products liability suit over the Alcotest, New Jersey’s DWI tester, finding it barred under a federal-court abstention doctrine.
U.S. District Judge Jose Linares held the suit, Johnson v. Draeger Safety Diagnostics, seeks to overturn the New Jersey Supreme Court’s finding that the device is reliable.
Bobby Johnson and Edwin Aguaiza, both convicted of drunken driving based on Alcotest evidence, sued on behalf of a class of themselves and other New Jersey residents similarly convicted.
They claimed the Alcotest has a design defect—namely, it has no means to calibrate measurements of how long suspected drunken drivers blow into it.
They also alleged that Hansueli Ryser, vice president of manufacturer Draeger Safety Diagnostics, gave false testimony about the device to a special master in State v. Chun, 194 N.J. 54 (2008), the case that established Alcotest’s scientific reliability for use in New Jersey DWI cases.
The complaint included counts of design defect under the Product Liability Act and common-law fraud.
Linares agreed with Draeger that the suit falls under the Rooker-Feldman doctrine, which bars a federal court suit where the claim was actually litigated in a state court or is inextricably intertwined with the state litigation.
For a claim to be barred under Rooker-Feldman, the plaintiff must have lost in state court and complained of injuries from a judgment there, the judgment must have been rendered before the federal suit was filed, and the plaintiff must have asked the federal court to review and reject the state judgments.
Linares said a finding that the Alcotest contains a defect “would effectively prevent the enforcement of the state court’s orders upon which plaintiffs’ criminal convictions were based.”
The plaintiffs were thus seeking an impermissible rehearing of their criminal cases in federal court, he said.
Linares also rejected a motion by Draeger, the manufacturer, which sought sanctions against plaintiff lawyer Ashton Thomas, of Elizabeth, claiming he unreasonably multiplied the proceedings. Linares found Thomas’ actions did not constitute bad faith.
Thomas says he is considering an appeal of the dismissal, noting that Chun made no reference to the Product Liability Act. “I can’t see any way a quasi-criminal case can bar a product liability case,” says Thomas.
Jeffrey Gold, a drunken-driving defense lawyer in Cherry Hill, says the lack of a constitutional claim distinguishes Johnson from a case where a federal judge is asked to revisit a state ruling.
Draeger, of Irving, Texas, was represented by Stephen Orlofsky of Blank Rome in Princeton, who declines to comment.
The Attorney General’s Office is expected to replace the Alcotest by 2016, since Draeger will warranty the device only until then.
In September, the Supreme Court declined a request by the defense bar to immediately retire Alcotest based on the state’s alleged failure to implement software changes and create a database of readings. The court found no evidence the state willfully refused to comply.