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Thursday, February 15, 2007

Judge releases findings regarding Alcotest DWI machine

After months of testimony and hearing, Court Special master Michael Patrick King rederered Findings and Conclusions Submitted to Supreme Court on February 13, 2007 regarding the DWI Alcotest machine.

The case arises from quasi-criminal actions involving
twenty defendants who were arrested in Middlesex County for
driving while under the influence of alcohol in violation of
N.J.S.A. 39:4-50. Defendants challenged the admissibility and
reliability of breath test results obtained from the Alcotest
7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).
On October 14, 2005 the Law Division granted the State's
motion to consolidate the cases pending as of May 23, 2005 in
several Middlesex County municipal courts. Among other things,
Judge Cantor denied the State's motion to take judicial notice
of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law
Div. 2003), which ruled that the Alcotest 7110 MKIII-C was
scientifically accurate and reliable and that its reported
readings would be admitted into evidence without the need for
expert testimony. At the time of Foley, New Jersey was using
firmware version 3.8.
In her written statement of November 10, 2005 Judge Cantor
explained that the Alcotest 7110 MKIII-C was a new instrument
adopted throughout New Jersey on a county-by-county basis on a
sequential timetable. She emphasized that only the Camden
County, Law Division in Foley had found it scientifically
reliable and that Judge Orlando, in dictum, had concluded that
New Jersey should make certain changes in the instrument's
firmware and the instructions given to its users. Ibid.
Because the Alcotest 7110 MKIII-C was a novel scientific
instrument which had never been vetted by an appellate court or
our Supreme Court, Judge Cantor concluded that its scientific
reliability remained a justiciable issue.
On December 1, 2005 the Appellate Division granted the
State's motion for leave to appeal and denied its motion for a
summary reversal. The Appellate Division remanded the matter to
the trial court for an accelerated hearing on the validity of
breath tests for alcohol, obtained through the use of Alcotest
On December 14, 2005 our Supreme Court certified the appeal
pending in the Appellate Division on its own motion pursuant to
R. 2:12-1. The Court vacated the remand to the Law Division and
remanded the matter to retired Appellate Division Judge Michael
Patrick King, to preside as a Special Master. The Court ordered
the Special Master to conduct a hearing and report his findings
and conclusions on an accelerated basis.

The Court ordered the Special Master to:

1. Conduct a plenary hearing on the
reliability of Alcotest breath test
instruments, including consideration of the
pertinent portions of the record in State v.
Foley, 370 N.J. Super. 341 (Law Div. 2003),
and the within matters in the Superior
Court, Law Division, Middlesex County,
together with such additional expert
testimony and arguments as may be presented
by the parties;

2. Determine whether the testimony
presented by the parties should be
supplemented by that of independent experts
selected by the Special Master;

3. Grant, in the Special Master's
discretion, motions by appropriate entities
seeking to participate as amici curiae, said
motions to be filed with the Special Master
within ten days of the filing date of this

4. Invite, in the Special Master's
discretion, the participation of entities or
persons as amici curiae or, to the extent
necessary in the interests of justice, as
intervenors to assist the Special Master in
the resolution of the issues before him; and

5. Within thirty days of the completion of
the plenary hearing, file findings and
conclusions with the Clerk of the Court and
contemporaneously serve a copy on the
parties and amici curiae, which service may
be effectuated by the posting of the report
on the Judiciary's website . . . .

The Court also ordered the parties, and permitted all amici
curiae who participated in the plenary hearing, to serve and
file initial briefs within fourteen days of the filing of the
Special Master's report as well as responses, if any, within ten
days. It further ordered the Clerk to set the matter for oral
argument on the first available date after completion of
briefing by the parties. Finally, the Court ordered the stay of
N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and
directed all Superior and Municipal Court judges before whom
such proceedings were pending, to ensure strict enforcement of
the Court's Guidelines for Operation of Plea Agreements in the
Municipal Courts of New Jersey.
On January 9, 2006 the Special Master granted to the
Association of Criminal Defense Lawyers of New Jersey (ACDL)
leave to appear as amicus curiae. On January 23, 2006 the
Special Master also admitted the New Jersey State Bar
Association (NJSBA) as amicus curiae, under R. 1:13-9, in view
of the matter's public importance.
On January 10, 2006 the Court sua sponte issued an order
addressing issues that affected the prosecution of N.J.S.A.
39:4-50 offenses statewide. The Court ordered all prosecutions
and appeals which did not involve the Alcotest 7110 to proceed
in the normal course. The Court, however, ordered the stay of
prosecutions and appeals involving repeat offenders and the
execution of their sentences where the convictions were based
solely on Alcotest readings. The Court also ordered that first-
offender prosecutions proceed to trial based on clinical
evidence when available and on Alcotest readings. It ordered,
however, that the execution of sentences for all first offenders
be stayed pending disposition of the Court's final decision on
the Alcotest 7110's reliability, unless public interest required
their immediate implementation.
As explained by the Administrative Director, Judge
Carchman, in a clarifying memorandum to municipal court judges
dated January 17, 2006, a court could admit evidence of an
Alcotest reading, over the objection of defense counsel, without
first holding a hearing on the instrument's scientific
reliability. He further explained that under N.J.S.A. 39:4-
50(a)(2) and (3), the penalty for repeat offenders was the same
whether the finding of guilt was based on observation or blood
alcohol levels. However, for first offenders, the penalty could
vary, making the Alcotest reliability hearing of fundamental
On March 15, 2006 the Court entered an order directing the
Special Master to designate an independent expert or experts.
Upon deliberation and consultation with the parties and amici
curiae, the Special Master determined that a court-appointed
expert was not necessary for proof purposes, especially because
of the quasi-criminal nature of the proceedings.
Meanwhile, discovery proceeded. On February 3, 2006 the
Special Master entered an order directing the State to give
defendants certain information, documents and materials
pertaining to the Alcotest 7110's firmware, software,
algorithms, electronic schematics, and source codes. Among
other things, the discovery order recognized that the exchange
of firmware and software might require a protective order to be
submitted by the State or manufacturer for court approval. On
February 17, 2006 the Special Master entered a supplemental
discovery order directing the State to lend three Alcotest 7110s
to defense counsel and one to counsel for the amicus NJSBA.
Among other things, the supplemental discovery order also
allowed the manufacturer Draeger Safety Diagnostics, Inc.
(Draeger) to apply to intervene in this matter, especially
because of the issue of "trade secrets."
Draeger objected to the discovery orders claiming that they
permitted the release of trade secrets and proprietary
information. On February 23, 2006 Draeger's intellectual
property counsel prepared a proposed protective order and sent
it to the State for submission to the court.

Draeger's proposal
included a request for indemnification from defense counsel. In
response to defendants' objections to Draeger's initial draft

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