Recently, the Law Division in Monmouth and Mercer Counties have issued divergent rulings regarding the use of Control Corp. software to calibrate the temperature probe used in the Alcotest breath testing machine. In Mercer, a judge ruled that substituting the accepted Ertco Hart unit with a less expensive unit was permissible. Most defense attorneys in NJ believe this to have been a very bad decision. More recently, a Judge sitting in Monmouth Superior ruled to the contrary.
In municipal court prosecutions, the defendant initiates discovery simply by making demand of the prosecutor. Rule 7:7-7(c). Both the Rules of Court and case law make it clear that it is the prosecutor’s unique function to be responsible for providing discovery when a request is made. Rule 7:7-7(a); State v. Polansky, 216 N.J. Super. 549 (Law Div. 1986); State v. Holup, 253 N.J.Super. 320 (App. Div. 1992).
The New Jersey Supreme Court specifically mentions the Ertco-Hart digital thermometer system, manufactured by Fluke Company, four distinct times in its opinion in Chun. First, under a point heading titled “Requirements Prior to the Admissibility of Alcotest Evidence,” the Court states:
Our analysis of the general scientific reliability of the Alcotest is grounded, in part, on our expectation that there will be proof that the particular device that has generated an AIR being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test. This requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since we decided Romano. There we demanded that, as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure. Romano, supra, 96 N.J. at 81, 474 A.2d 1.
In matters relating to the Alcotest, the same general considerations that gave rise to these requirements must, of course, apply. In an effort to address these concerns, the Special Master recommended that certain documents, which he referred to as the “foundational documents,” be produced during discovery and that they be admitted into evidence as part of the State’s case-in-chief. The documents in question can be described as follows (1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.[(Chun, 194 N.J. at 134-135).]
Accordingly, in the Order issued by the New Jersey Supreme Court in Chun, the Court mandates that the State provide 12 specific foundational documents into evidence in DWI prosecutions based on Alcotest readings. These include:
- New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;
- Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;
- Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;
- Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;
- Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;
- Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
- Certificate of Analysis for the 0.10 percent solution used in the calibration control test;
- Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;
- New Standard Solution Report, following the most recent calibration;
- Draeger Safety Certificates of Accuracy for the Simulators used in calibration;
- Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe used in calibration; and
- Draeger Safety Ertco-Hart Calibration Report
Moreover, the Court states:
The parties agree, as well, about certain of the Special Master’s recommendations for future revisions in the firmware that will provide additional information on the reported results that the device generates. For example, the parties agree that the firmware should be rewritten so that the AIR, solution change report, and calibration documents include the temperature probe serial number and probe value (Special Master’s Finding 2(a)); that if the particular test subject has not received a reportable result, the AIR must include a statement identifying why that occurred (Special Master’s Finding 2(e)); and that future calibration, certification and linearity reports should include the serial number of the Ertco-Hart digital temperature measuring system utilized in performing those testing and maintenance operations (Special Master’s Finding 2(i)).[Id. at 89.]
Accordingly, the Court Ordered: “that the State shall arrange forthwith with Draeger for revisions to the New Jersey Firmware utilized in Alcotest 7110 MKIII-C, as needed to accomplish the directives set forth in the Court’s opinion regarding the admissibility into evidence of results of Alcotest breath testing, currently New Jersey Firmware version 3.11, as follows … G. The firmware shall be programmed to include the serial number of the Ertco-Hart digital temperature measuring system utilized as a part of each calibration, certification and linearity report….” Id. at 152.
In State v. Holland, Monmouth County Law Div. 09-069, April 16, 2010, defendant sought to suppress her Alcotest blood-alcohol content readings, citing the use of a Control Corp. thermometer, rather than an Ertco-Hart. The motion was denied in the Municipal Court. However, on appeal to the Law Division, Judge English, granted it and remanded the case for a new hearing without the Alcotest readings.
Judge English reportedly said of the substitution from Ertco Hart to Control Corp., “I don’t see how the Attorney General takes that step without … going back to the Supreme Court if that’s what they have to do. Going back to the Master and saying we need to make a change here.” Special Master Michael King said in his report to the justices that “the Ertco-Hart temperature measuring system or other similar device” be used, but the Court’s ruling in Chun mentioned no such substitution, English said. “I don’t know why the Supreme Court wouldn’t have added that language if that’s what they wanted to do,” he added.
It is undisputed in this case that the Alcotest machine used to take defendant’s breath samples was last calibrated using Control Corp. software, rather than Ertco Hart. This is impermissible under the clear mandate in the New Jersey Supreme Court’s Order issued in Chun. There is a reason why the Court mandated a specific calibration unit to be used on the Drager Tempature Probe – because this was the unit recommended by the Special Master after painstaking research whose findings were adopted by the Court. It is obvious that such calibration units can be made with deviant quality and reliability standards such as any other piece of machinery, equipment, or software. The Alcotest is used to convict defendants of a most serious motor vehicle infraction that carries severe penalties. The temperature probe is an apparatus vital to the proper function of the Alcotest machine. It is therefore crucial that the software used in calibrating such an important instrument be rigorously tested and known to be reliable. The Ertco-Hart calibration unit has passed this test. Control Corp., known as the “cheaper” of the two units, has not.
The State cannot provide the defendant with one of the 12 mandatory foundational documents. The Supreme Court has made no exceptions to this strict requirement. Further, the State cannot be allowed to substitute calibrating units, contrary to the direction of the Supreme Court, simply in the interest of economy. This completely undermines the level of reliability the results of the Alcotest readings in question should be given.