Tuesday, April 12, 2011

DWI Appeal - NJ Margin of Error in Alcotest Rejected

In State of New Jersey v. Miceski, Not Reported in A.3d, 2011 WL 1327436 (N.J.Super.A.D.), the defendant submitted to a breath test on an Alcotest 7110 MK-III C ("Alcotest"). The Alcotest performs two readings - one involving an infrared analysis, and the other involving an electro-chemical analysis. Here, the reading for both were 0.084, truncated to 0.08%. The court heard testimony from defense expert Gary Aramini, that the Alcotest calibrations were reading 'high'. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance. He also stated that there is 0.005% margin of error in any Alcotest AIR reading. Aramini stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.

The Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated “an unofficially high reading,” the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
On appeal, the court held that the Alcotest has been held to be “generally scientifically reliable,” and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4–50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within “the range of any set of measurements that is accepted as being representative of a true reading.” The court held that the 0.005% margin of error is taken into consideration when the Alcotest is properly administered:

"Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, “0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]” Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy."
The court concluded that as long as the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation, and that the margin of error of 0.005% could not be used to defeat a per se violation.

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