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A Camden County, N.J., judge on Friday denied the state attorney general’s request for relief from an order allowing defense attorneys to examine the Alcotest 7110, the new drunken-driving breath-test device slated to replace Breathalyzers. Assignment Judge Francis Orlando Jr. denied a motion by the state Division of Criminal Justice to reconsider his Aug. 16 order to hand over one Alcotest to the defense in a pilot case, so that defense experts can evaluate it. Orlando also refused to put restrictions on the release of the Alcotest and ordered the state to comply with his order as soon as the defense lawyers post a $7,100 bond. The defense lawyers requested access to the machine in preparation for an evidentiary hearing on whether it meets the standards of acceptance from the scientific community under Frye v. United States, 293 F. 1013 (D.C. Cir., 1923). The hearing will determine admissibility of Alcotest readings from 20 defendants charged with drunken driving by the Pennsauken Police Department, which last December became the first in New Jersey to use the new device. The cases were transferred from Pennsauken Municipal Court and consolidated for the evidentiary hearing. Defense lawyers can’t buy an Alcotest on the open market because the manufacturer, Drager Safety of Durango, Colo., only sells the machine to government agencies and not private citizens. The State Bar Association first sought to examine an Alcotest three years ago when the attorney general’s office began testing it with an eye towards using it statewide as a replacement for the Breathalyzer, which dates to the 1950s. But the state has maintained that trade secrets about the device must not be divulged, and offered to let defense experts examine it at State Police headquarters in West Trenton, but the defense insisted on unfettered access. On Friday, Deputy Attorney General Stephen Monson handed the judge a licensing contract between the state and Drager concerning the Alcotest, but the defense pointed out that the contract was dated that same day. “This agreement was entered into with the specific purpose of defeating the ruling your honor made from the bench the last time we were here,” defense attorney Arnold Fishman said. “I don’t think your honor should rely on that at all.” Noting that the Alcotest can be programmed differently by various government agencies using it, defense lawyers said they want to examine the coding that is specific to machines used in New Jersey. “This is a computer case. The primary experts are going to be the computer guys, not the pulmonary guys, not the chemists,” said Fishman, a Haddon Heights, N.J., solo practitioner who is chair of the municipal court practice committee of the State Bar Association. Monson was momentarily speechless when Orlando asked if the Alcotest was a better machine than the Breathalyzer it replaces. Monson said the choice of Alcotest for statewide use was “an executive branch decision” and that no one objected when a public hearing was held on its introduction. The chief advantage of the new machine is that it produces a printout of results, while the Breathalyzer requires police officers to read a gauge, providing potential for operator error, he said. “What’s the reluctance on the part of the state to say ‘here it is, we think it’s great, here it is, go at it?’” Orlando said. Monson objected to allowing defense experts to take the machine apart to learn what’s inside. “We’re saying, use it as intended. Is it necessary to take the case apart to look inside? You’re not going to see anything,” Monson responded. Orlando ruled that the defense would have to make separate application to the court before its experts would take apart the machine. The judge also enjoined defense attorneys from disseminating information about the machine to persons who are not party to the case, but declined the state’s request to make anyone doing so liable for criminal contempt. He also refused the state’s request that the person accepting the Alcotest on behalf of the defense be required to show a photo ID. Orlando denied without prejudice two motions by defense attorney Peter Lederman, to allow a defense expert to be given the same Alcotest training given to police officers, and to require the state to provide two Alcotests rather than one. Orlando easily dispensed with Monson’s argument that the attorney general’s office did not get notice of the Aug. 16 hearing. “From my recollection, the attorney general was well aware the defendants wanted access to this machine,” Orlando said. “It has taken so long because the attorney general was dictating the terms.” Monson told Orlando that the state would appeal if its motion for reconsideration were not granted. After the hearing, Monson declined to comment. However, Assistant Camden County Prosecutor Gladys Rodriguez, who sat at the prosecution table with Monson, said she did not think the state would appeal. A formal hearing on the Frye standards is set for early December, but Lederman, a member of Freehold, N.J.’s Lomurro Davison Eastman & Munoz, said after the hearing that he may request additional time for experts to submit reports. He was unsure how soon the defense lawyers would put up the $7,100 bond for the Alcotest, since many of them are working pro bono.

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