DEFENDING AGAINST ALCOTEST READINGS 

Defending against The Alcotest Machine in New Jersey Prosecutions

It’s generally accepted that once the Alcotest testing is found to have been properly administered, and the reading is over the statutory limit, the case is over, and the defendant loses. Even so, there are many ways to attack the Alcotest machine and the results, so as to exclude them from evidence and to avoid a conviction.

 Like any scientific device, the Alcotest machine must be operated properly, by a qualified operator. The Supreme Court of New Jersey, in a 2008 case, State v. Chun 194 N.J. 54, found that there are numerous requirements for the setup and use of the machine, without which, the prosecution will fail. The documents which the Supreme Court found essential to every prosecution for DWI with an Alcotest reading are:

 (1) the most recent Calibration Report prior to a defendant’s test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(2) the most recent New Standard Solution Report prior to a defendant’s test; and

(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant’s control tests.

 The above are referred to as the Core Foundational Documents to support an Alcotest DWI, and are required in every case.

 

In addition to the above Core Documents, there are other Foundational Documents which the Supreme Court mandates be provided by the prosecution in pre-trial discovery. These Documents are as follows:

(1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;

(2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;

(3) Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;

(4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;

(5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;

(6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test;

(8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;

(9) New Standard Solution Report, following the most recent calibration;

(10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration;

(11) Draeger Safety Certificate of Accuracy for theAlcotest 7110 Temperature Probe used in calibration; and

(12) Draeger Safety Ertco-Hart Calibration Report.

The above 12 documents must be provided in discovery so as to provide the defense information which may lead to evidence supporting a challenge to the Alcotest reading and thus a suppression of the Alcotest reading, an essential part of a successful defense.

 

For those who would like to read through the very technical requirements imposed by the case of State v. Chun, we have annexed a searchable PDF format copy of the case. If nothing else the case demonstrates the complexity of Alcotest prosecutions, while guiding those familiar with the various defenses suggested by an understanding of the case, to a successful conclusion. This is not to say that defenses are found in every case, as the police have become very good at what they do, but it is to say that not every police department has the technical expertise to successfully prosecute 100% of these cases.

 For those who would like to see what typical discovery looks like in a DWI prosecution, please visit our DWI discovery page. For your information the annexed Discovery page contains a major error by the police in the prosecution of the matter which caused the Alcotest to be suppressed. See if you can find it.

 

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