Sunday, March 23, 2008

East Coast breath test case looked at by California DUI lawyers

East Coast breath test case looked at by California DUI lawyers

Drunk Driving / DUI / DWI Attorney John Williams has a nickname for three dozen people he is defending in and around Sussex County: "Chun clients."

It's hardly an inside joke. The clients, charged with Drunk Driving / DUI / DWI, received their namesake from "perhaps the biggest decision to come along for municipal courts, certainly DWI, in 20 years," Drunk Driving / DUI / DWI attorney Williams said.

In State v. Jane H. Chun, the state Supreme Court on Monday ruled that the Alcotest 7110 breath test used by police throughout the state is scientifically reliable.

Since Jan. 10, 2006, an order known as the "Chun stay" has allowed people who entered guilty pleas to driving while intoxicated to hold onto their driver's licenses pending the high court's exhaustive review of the Alcotest.

The ruling, which stems from a case by 28 defendants in Middlesex County, will allow roughly 10,000 Drunk Driving / DUI / DWI cases in New Jersey to move forward.

Sparta police acquired an Alcotest machine in April 2006, making it the first department in Sussex County to replace the outdated, yet reliable, Breathalyzer, according to Drunk Driving / DUI / DWI attorneys.

Out of 208 people tested on the Alcotest, 87 have become "Chun cases" pending last week's ruling, Drunk Driving / DUI / DWI lawyers said.

"It's part of the process," he said. "It's a good thing. If there were any glitches with the Alcotest, it's worked out now. You want to hear both sides."

The court's opinion will have an immediate impact on municipal courts, where many DWI defendants must turn in their driver's licenses unless they can muster a Drunk Driving / DUI / DWIdefense.

"It's huge," said Andrew Fraser, municipal prosecutor for Sparta. "When they rolled out this new instrument, it was not deemed scientifically reliable."

Drunk Driving / DUI / DWI Attorneys agreed that the Alcotest, made by Draeger Safety Diagnostics, is an impressive, state-of-the art machine, but it replaced the Breathalyzer statewide before it was tested on a narrower scale.

"I wish, looking back, they had picked a town and tested it side-by-side," Fraser said. "They put the cart before the horse, but I'm glad the horse showed up."

Williams said the Alcotest has proven to be a dependable resource, comparable to accepted forms of speed radar and unlike debatable technology such as lie detectors.

But, he said, the court's opinion does note problems with the Drunk Driving / DUI / DWI machine.

"(The state) kind of fumbled the ball on the one-yard line," he said.

In a highly complex outline of 13 scientific issues, the court said prosecutors must use a corrective formula to account for "buffer overflow" error when a third breath sample is taken instead of just two.

A third sample is taken when the first two tests are not in "tolerance," meaning within .01 percent of each other.

Breath samples are collected eight to 12 minutes apart to ensure that the readings give an accurate view of a person's blood alcohol content, Drunk Driving / DUI / DWI attorneys said. Drunk Driving / DUI / DWI Defendants who do not have a strong defense based on tolerance will likely be found guilty and penalized, Drunk Driving / DUI / DWI lawyers added.

The court also said the Draeger company must make Alcotest training available to licensed attorneys at a reasonable time, cost and location.

In his Hamburg office, Williams has four bulky seminar books devoted solely to Alcotest issues.

Based on his knowledge of the Alcotest margin of error, he might argue in court that some of his clients should receive a three-month suspension — for readings .08 or .09 BAC — instead of a seven-month suspension for a reading higher than 0.1 percent.

"If you're going to draw a bright line, the yardstick that measures up to that line must be accurate," Drunk Driving / DUI / DWI defense attorney Williams said.

Drunk Driving / DUI / DWI defense lawyer Williams said it was "irresponsible" of the state to roll out the Alcotest before it was thoroughly reviewed by the high courts.

The state attorney general's office could not be reached for comment on Good Friday.

On Monday, state Attorney General Anne Milgram issued a statement noting she was "pleased with the Court's decision upholding the scientific reliability of the Alcotest and the admissibility of its results in evidence.

The court's ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws."

Alcotest's push-button technology is certainly more cutting edge, even by appearances, than the dials exposed to human error on the Drunk Driving / DUI / DWI Breathalyzer.

"This is literally a museum piece now," Beebe said, handling a Breathalyzer. And yet, "this is a very reliable instrument when properly operated."

There have been cases in New Jersey, in which officers have been accused of rounding up to a higher number the blood-alcohol content that appeared on the Breathalyzer.

With the Alcotest, an officer simply types in the suspect's name and monitors the breath samples.

"It's mistake-proof, in that the officer or trooper pushes the button, and it spits out a reading that cannot be changed or manipulated in any way," Drunk Driving / DUI / DWI lawyers are incorrectly told.

The purported simplicity of operating the Alcotest is rivaled by the density of the 131-page Chun decision.

Drunk Driving / DUI / DWI attorneys in California have been watching this.