Written by Travis Tormey, Esq.

November 5, 2007

Alcotest Update: the Supreme Court still has not decided the issues concerning use and admissibility of Alcotest results. The new breath test device, Alcotest, shall remain subject to a stay in terms of convictions. A decision is expected by the Supreme Court in early 2008.

State v. Jacobs, (Unpublished Decision of November 5, 2007): the defendant challenged his sentence after pleading guilty to third degree possession with intent to distribute heroin and conviction on separate charges at trial of aggravated assault, possession of a weapon for unlawful purpose, and eluding. The Appellate Division rejected defendant's arguments and affirmed the convictions and sentence.

State v. Cunningham, (Unpublished Decision of November 2, 2007):the defendant in this case challenged his conviction for murder based on a claim of ineffective assistance of counsel. The Appellate Division affirmed the trial court conviction, finding that the quality of representation was sufficient.

State v. Bailey, (Unpublished Decision of November 1, 2007): the defendant challenged a conviction for second degree eluding in violation of N.J.S.A. 2C:29-2b, and third degree resisting arrest in violation of N.J.S.A. 2C29-2a(2). The basis for the appeal was primarily on the theory that it was error for the trial court to merge the convictions and impose nine years of imprisonment. The Appellate Division disagreed and concluded that it was proper for the trial court to merge the charges and impose the sentence.

November 19, 2007

State of New Jersey v. Evans (unpublished opinion of November 19, 2007): the Appellate Division affirmed the third degree convictions for possession of a Controlled Dangerous Substance (CDS) and third degree possession of a CDS with intent to distribute.

State of New Jersey v. Nyema (unpublished opinion of November 16, 2007): the Appellate Division affirmed the convictions for third degree forgery and fourth degree falsifying or tampering with records.

State of New Jersey v. Spiropulos (unpublished opinion of November 16, 2007): the Appellate Division affirmed the rejection of the defendant for Pre-Trial Intervention (PTI).

November 27, 2007

A recent article in the New Jersey Law Journal (dated November 19, 2007) was titled "Alcotest Scientifically Reliable, Says Special Master After Second Review". This ruling could have a significant impact on DWI Litigation in New Jersey. A New Jersey Supreme Court fact finder considered software tests and testimony and found that the Alcotest 7110 is scientifically reliable enought to put into use. In a report, Special Master Michael Patrick King said "the Alcotest is scientifically reliable, both as to software and hardware, in reporting alcohol breath testing results for evidentiary purposes." This report will be subject to oral argument before the New Jersey Supreme Court on January 7th in State v. Chun, the case that will determine the admissibility of Alcotest readings in drinking and driving cases. The Alcotest has been in use in 17 counties since early last year, though the Court has stayed the sentencing for these convictions based on Alcotest results. King reasserted his conclusion that the Alcotest is much more reliable than the Breathalyzer test in use since the 1950s. "The Alcotest essentially functions independently of operator influence, unlike the breathalyzer, which is very dependent on the operator and produces no objective and permanent record of test results. The Alcotest is also much more precise."

The next step will be oral argument on January 7th in State v. Chun and we will see how the DWI landscape in New Jersey changes as a result of this upcoming New Jersey Supreme Court decision.

January 15, 2008

There were arguments at the New Jersey Supreme Court this past Monday over the state's new drunk driving test, the Alcotest. The state Supreme Court justices must put their stamp of approval on the machine for it to go live statewide. For them to do so, they must determine that it is scientifically reliable enough to be used in DWI prosecutions in New Jersey. The Alcotest 7110, which would replace the Breathalyzer which has been in use since the 1950s, has been used in 17 counties since early 2006. The New Jersey Supreme Court has stayed sentencing pending its review of the machine's reliability. As many as 7,800 defendants in DWI cases based on the Alcotest are awaiting the Court's ruling on the machine's reliability. In November, Special Master Michael Patrick King concluded, based on a voluminous fact-finding record, that the Alcotest is scientifically reliable for evidentiary purposes, subject to safeguards meant to compensate for software flaws. It was his second report recommending implementation, and Monday was the Court's second hearing on whether to adopt King's recommendation.

There are experts that contend that errors in Alcotest readings are still possible due to software and mechanical issues. The Alcotest performs two tests on each breath sample, using electrochemical and infrared technology, but the electrochemical test tends to become less accurate over time due to fuel-cell depletion. The device is programmed to compensate by using the infrared value to compute the electrochemical result. King recommended that the device be calibrated for accuracy and its fuel cell replaced, if necessary, every six months--twice as often as the annual tune-up he originally suggested.