The New Jersey Supreme Court seemed perplexed at oral arguments Tuesday on what to do to redress the state’s failure to comply with the court’s conditions for use of the Alcotest in drunken driving prosecutions.
The machine will be phased out in the next three years, due to the manufacturer’s discontinuation of support, and lawyers for the state want to continue its use until a substitute can be found.
But defense lawyers argued that use should be halted immediately because the state hasn’t made court-ordered software changes or created a searchable database of cases in which the device was used.
“The state hasn’t done that. They haven’t even tried,” said defense attorney Matthew Reisig, a Freehold solo, referring to the software changes and the searchable database. “Alcotest is unreliable because they never made the software changes.”
“What are you asking the court to do?” Judge Mary Cuff asked.
“Revisit the issue,” Reisig said. “You have the benefit of five years.”
The court approved the use of Alcotest in State v. Chun, 194 N.J. 54 (2008), but it ordered the state to make nine software revisions and to create a database of cases.
In papers filed on June 14, Reisig and Cherry Hill solo Evan Levow asked the court to declare the device unuseable because the state had failed to comply with the court’s orders.
“Do you want us to revisit Chun?” asked Justice Anne Patterson.
“Yes,” Reisig replied.
Judge Ariel Rodriguez asked what motivation the state had for not complying with the court’s order.
“They sat back and hoped the court wouldn’t notice it,” Reisig said.
Cuff asked what form drunken driving tests should take until a new device is put into use.
“Until they pick a new machine, there should be observational trial only,” Reisig said, referring to traditional police practice of observing watery eyes, alcohol on the breath and how the driver performs on physical tests.
Levow, of Cherry Hill, agreed that the use of Alcotest should be stopped altogether.
“It’s important that the bar and the public have confidence in the machine. That’s not present now,” he said. Until the new machine is unveiled, there should be no breath tests, he added.
Justice Barry Albin asked whether any comparison of Alcotest results with blood test results had been made.
“Shockingly, no,” Levow said.
The State Bar Association is participating as amicus. Its attorney, Cherry Hill solo Jeffrey Gold, said the court needed to appoint a special master to determine whether the state should be held in contempt for failing to comply with the court’s order in Chun. The mandates were conditions to the court’s imprimatur to the device in Chun.
“I don’t think any of us thought that nothing would be done for five years,” he said.
Deputy Attorney General Robin Mitchell asked the court to allow the state to continue to use Alcotest until a new machine is selected.
“The court has found this to be scientifically reliable,” she said.
And, Mitchell said, the court should reject attempts to have Alcotest discarded immediately.
“That is an extreme remedy that is completely unwarranted and it should be rejected,” she said, adding that it was also unnecessary to appoint a special master.
Patterson asked how long it will take to find a replacement machine.
“We’re already looking for a new instrument,” Mitchell said.
Patterson asked Mitchell if she could provide a more specific time frame.
“I don’t know,” Mitchell said, pointing out that a preliminary choice has to be made, tests have to be conducted and bids sought.
“We have to have it replaced by the end of 2016,” she said. “The process has started.”
The manufacturer, Draeger Safety Diagnostics, has told the state it will guarantee the Alcotest 7110 only through the end of that year.