SUPREME COURT REFUSES TO REMOVE ALCOTEST MACHINES

SUPREME COURT REFUSES TO REMOVE ALCOTEST MACHINES
State v Chun M-1538/1539/1540 September Term 2012

072341
O R D E R

     This Court having previously issued its unanimous opinion
addressing the challenges raised by defendants to the scientific
reliability of the Alcotest 7110 MKIII-C (the Alcotest), see
State v. Chun, 194 N.J. 54 (2008), and the Court having issued,
along with its opinion, its implementing Order of March 17,
2008, see id. at 149-56,

     And defendants having moved, M-1538, for an Order in Aid of
Litigants’ Rights, see R. 1:10-3, contending that the State has
failed to comply with this Court’s March 17, 2008, Order,
principally by failing to create and maintain a centralized
statewide database, and asserting more specifically that the
database lacks integrity because it differs from the manner in
which data was previously stored on and available on CD-ROM, is
incomplete as to certain types of files and calibration cycles,

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is presented in a format different from the one noted in the
report of the Special Master, and is subject to the third-party
software developer’s fee,

     And defendants having requested that this Court deem the
State to have violated the March 17, 2008, Order and that this
Court therefore direct the State to redesign the database to
comply with defendants’ understanding of the meaning and intent
of this Court’s March 17, 2008, Order, and that this Court
further direct the State to ensure the integrity of the data in
the database and order other relief,

     And the State having responded to the factual assertions
concerning the integrity and operation of the centralized
statewide database raised by defendants through the affidavits
of Howard J. Baum, Ph.D., Director of the Office of Forensic
Sciences (OFS), a Division of the New Jersey State Police, and
of Ali M. Alaouie, Ph.D., an OFS research scientist charged with
oversight and monitoring of Alcotest data downloads and database
integrity,

     And the State having moved, M-1539, for an Order in Aid of
Litigant’s Rights, see R. 1:10-3, seeking to modify the Court’s
March 17, 2008, Order and to authorize the State to continue to
utilize the Alcotest with Firmware version 3.11, which was
evaluated during the proceedings that led to this Court’s March

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17, 2008, Opinion and Order,
     And the State having therefore requested that it be

relieved of further compliance with Paragraph 2 of this Court’s
Order of March 17, 2008, based on the State’s representation
that Firmware 3.13, which is the Alcotest software that was
created in conjunction with Draeger Safety Diagnostics, Inc.
(Draeger), the manufacturer and supplier of the Alcotest, in
compliance with Paragraph 2 of this Court’s March 17, 2008,
Order, would effectively render the previously created database
unusable and unworkable,

     And the State having represented to the Court that Draeger
has advised that the Alcotest will no longer be serviceable
after 2016 and that the State is now in the process of
evaluating alternate breath testing devices for implementation,

     And defendants also having moved, M-1540, for an Order in
Aid of Litigants’ Rights, see R. 1:10-3, contending that, absent
compliance with Paragraph 2 of this Court’s March 17, 2008,
Order, which directed that the specified software changes be
made “forthwith[,]” the Alcotest is unsuitable for use in New
Jersey,

     And defendants having challenged the reliability of the
Alcotest 7110 utilizing Firmware version 3.11 both in general
and in particular through reiteration of and expansion upon

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arguments raised during the proceedings that led to this Court’s
March 17, 2008, Opinion and Order, including defendant’s
challenge to the Firmware’s utilization of the fuel cell drift
algorithm and the absence of implementation of software to
account for the demonstrated physiological differences that
impede the ability of women over the age of sixty to provide a
sufficient breath sample and that therefore raised the specter
of inappropriate charges being brought against such women for
refusal, see N.J.S.A. 39:4-50.4a,

     And defendants having therefore requested that this Court
declare that the Alcotest is not sufficiently scientifically
reliable to be utilized in any prosecution for driving under the
influence of alcohol,

     And amicus curiae New Jersey State Bar Association having
urged this Court to appoint a Special Master to engage in fact
finding and evaluation of the State’s compliance with this
Court’s March 17, 2008, Order and to oversee enforcement and
implementation of that Order in all respects,

     And the Court having considered the papers filed in support
of and in opposition to each of the motions, and the Court
having entertained the oral arguments of the parties and on
behalf of amicus concerning the motions,

     And the Court having concluded that the centralized
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statewide database is fully in compliance with this Court’s
Order of March 17, 2008, in all respects,

     And the Court having further concluded that defendants have
failed to demonstrate that the State has “willfully refused” to
comply with this Court’s March 17, 2008, Order, see Pasqua v.
Council, 186 N.J. 127, 141 n.2 (2006), and that the State has
demonstrated that in spite of its best efforts to do so, it does
not have the ability to comply with Paragraph 2 of the Order,
see Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 392 (1995), because of the unanticipated but unavoidable
adverse impact of compliance that the implementation of Firmware
version 3.13 would have upon the continued viability of the
existing database,

     And the Court having further concluded that the Alcotest
7110, utilizing Firmware version 3.11, remains scientifically
reliable, and generates results that are admissible to prove a
per se violation of the statutory prohibitions on driving while
under the influence of alcohol, when those results are utilized
in strict compliance with Paragraphs 1, 3, 4, 5, 6 and the
associated worksheets attached to this Court’s March 17, 2008,
Order,

     And the Court having further concluded that although

Paragraph 1(A)(3) of this Court’s March 17, 2008, Order directed
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that certain AIR results be inadmissible in prosecutions of
women over the age of sixty for violations of the refusal
statute, see N.J.S.A. 39:4-50.4a, a further remedy is now
necessary to protect the equal protection rights of women
falling into that category,

     And for good cause appearing,

     1.  IT IS ORDERED that defendants’ motions for Orders in
Aid of Litigants’ Rights, M-1538, M-1540, are denied; and

     2.  IT IS ORDERED that the State’s motion, M-1539, for
relief from further compliance with Paragraph 2 of this Court’s
March 17, 2008, Order is granted; and

     3.  IT IS ORDERED that the State’s motion, M-1539, for
authorization to continue to utilize the Alcotest 7110 with
Firmware version 3.11, and to deem the results admissible in
accordance with this Court’s March 17, 2008, Order and
associated worksheets, with the exception of the provisions of
Paragraph 2 thereof, is granted; and

     4.  IT IS ORDERED that, in addition to the directive in
Paragraph 1(A)(3) of this Court’s March 17, 2008, Order,
concerning admissibility of Alcotest results for women over the
age of 60 in prosecutions for refusal, see N.J.S.A. 39:4-50.4a,
if the only evidence of refusal is the inadmissible AIR, such
women may not be charged with, prosecuted for, or convicted of

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that offense.