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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DUI Appeal of the Day (DAD) - Margin of Error Defense Rejected

In Borger v. Dep't of Motor Vehicles, --- Cal.Rptr.3d ----, 2011 WL 541131 (Cal.App. 2 Dist.), the driver challenged his suspension after giving two breath tests on an Intoxilyzer 5000 of .09 and .08. His expert, Jay Williams, testified that all “Intoxilyzer 5000” machines have an inherent margin-of-error of plus or minus .02 percent. He said that respondent's BAC could be “anywhere between a .06 and a .10” and could not say with reasonable scientific certainty that his BAC was .08 percent or higher. The DMV hearing officer did not credit Williams' testimony and found that respondent was lawfully arrested for DUI and driving with a BAC of .08 percent or more. (§ 13557, subd. (b)(2).) However, the trial court credited Williams' testimony. It impliedly found that respondent's BAC was less than .08, granted the writ petition, and ordered DMV to set aside the suspension of respondent's license. This appeal followed.
Rejecting the defense, the appeals court stated:

The trial court's terse analysis does not inspire confidence. Williams testified that an “Intoxilyzer 5000” that is in working order meets “the Adams requirements” ( People v. Adams (1976) 59 Cal.App.3d 559) but has an inherent margin-of-error of “plus or minus .02” percent. There is no disagreement that the “Intoxilyzor 5000” is an “approved instrument” within the meaning of Title 17, article 7, section 1221.3. Williams did not examine the machine used to test respondent's BAC on March 18, 2009, and he offered no opinion that the machine was not in working order. The trial court inexplicably credited Williams' theoretical lowest possible BAC and ignored the theoretical highest possible BAC. The logic of the trial court ruling concerning an impossibility to determine respondent's BAC is unknown. In reality, Williams' conclusion would “overrule” every “Intoxilyzer 5000” reported result unless it is .10 or more. This would change the California Code of Regulations, title 17, article 7, sections 1221 through 1221.5 and effectively remove this breath testing device from the Department of Motor Vehicle's “approved instrument” list. Other than testifying that he owned “Intoxilyzer 5000” machines, Williams offered no reasoning to support his conclusion. He offered no evidence of any scientific tests that he conducted with any such machine let alone the one used here. The record does not show that any other experts in the scientific community have reached similar conclusions or that any scientific literature supports Williams' conclusion. To say that his conclusion is bald is an understatement.

Further unnecessary ripping of the expert then occurred:

“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]” ( Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) ‘ “ ‘ “The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion....” ‘ (Quoting Carter v. v. United States (D.C.Cir.1957) 252 F.2d 608 617 [102 App. D.C. 227].)” ( People v. Coogler (1969) 71 Cal.2d 153, 167.) Williams' bald conclusion is speculative and cannot be fairly characterized a “substantial evidence.”

Editor's note: Obviously, this was a political decision - not an evidentiary one. Although couched in scientific terms (i.e. "how do we know that the expert really knows what he is talking about unless he teaches us to know it too?") the judges on the appellate court were simply unwilling to accept a simple unrefuted proposition, that the machine has a margin of error of =/- 0.02. Normally, case law states that the trier of fact cannot disregard unrefuted testimony. And sometimes, a scientific proposition is so simple, that nothing further need be said. An example might be that "two objects of the same shape will fall to earth at the same rate." Even though a judge might not know that to be true until it is told to him by an expert, the law doesn't require that Galileo re-climb the Tower of Pisa all over again, just to placate the ignorant and/or obstinate.


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