New Jersey Supreme Court Considers Whether New Breath Test
Machine Can be used as Evidence in DWI Prosecutions.

In January 2005, the State of New Jersey started implementation of a new breath test program, rolling out the Alcotest 7110 MK III-C breath test machine, in different counties across the State. Implementation of this program follows 35 years during which the Breathalyzer Model 900 and 900A were used almost exclusively in performing breath tests to determine the content of alcohol in the blood of Defendants.

The significance of this change cannot be overstated, since by law, the State can establish a Defendant's intoxication simply providing an evidentiary blood test result of .08% Blood Alcohol Content, often referred to as a per se violation. In other words, the results of this test can, on their own, establish a Defendant's intoxication by virtue of level of Blood Alcohol Content shown.


Approximately three years ago, a hearing was conducted in Camden County Superior Court in the matter of State v. Foley, to determine the scientific reliability of the new device. While this Court determined that the Alcotest machine was scientifically reliable, no Appellate Court considered the trial court's findings, presenting a problem for implementation of the program outside of Camden County. Our office participated as co-lead counsel, representing one of the Defendant's in this matter.


As a result of the Statewide implementation of the Alcotest program, the scientific reliability of the device was challenged again in a matter entitled State v. Chun. That challenge began in the Middlesex County Superior Court and was ultimately taken before the New Jersey Supreme Court. Upon direction of the Supreme Court, a hearing was conducted by Honorable Michael Patrick King as Special Master, where extensive testimony was provided to the Court as to whether the Alcotest device could be relied upon as scientifically reliable, so that breath test results could be used to determine the blood alcohol content and, therefore, the intoxication of the Defendant.


After Judge King's consideration of testimony and documents presented in Court, Findings of Fact were provided to the Supreme Court. These findings raised various questions involving the New Jersey Alcotest breath test program, while at the same time acknowledging the general scientific reliability of the device.


Subsequently, oral argument took place before the New Jersey Supreme Court as to these issues. The Supreme Court consequently determined additional information was needed from experts to evaluate the source code which operated the breath test device.

These reports are to be provided in the late part of 2007, with the decision of the New Jersey Supreme Court to follow. We have appeared as Amicus Curiae before the New Jersey Supreme Court in the Chun case.