This is another “technical” defense to a DWI. An experienced DUI lawyer needs to have a thorough understanding of the inner workings of the Alcotest breath testing machine. The Alcotest is the successor instrument to the now out-dated breathalyzer. Simply put, the machine must pause for two-minutes between the 2 breath samples police must take from you. Some courts have recently rejected this argument, including the Appellate Division in a recent unpublished decision.
In regard to the Alcotest, our Supreme Court has mandated a bright-line policy regarding the administration of that machine. See Chun, 194 N.J. 54. One important aspect of this policy is the so-called two-minute “lock-out” period required between the taking of breath samples.
Lights on the LED screen and an audible sound alert the operator when a breath sample which meets the minimum fixed standards, comprised of four criteria, has been provided. The operator then tells the subject to stop and the instrument performs a third blank test to purge the first breath sample. After a two-minute lock-out period during which the device will not permit another test, the instrument prompts the operator to read the instruction again to the arrestee and collect the second breath sample. The second sample is also measured using the IR and EC technology. The second sample is purged from the machine and the device performs a fourth blank test using room air.[Id. at 81.]
In, State v. Mukherjee, 2012 N.J. Super. Unpub. LEXIS 24, 11-13 (App.Div. Jan. 9, 2012), the defendant argued that the first breath sample the arresting officer took, which actually turned out to be invalid, might have contaminated the second sample, which resulted in otherwise valid reading, but occurred less than two minutes later. He argued that the trial judge should have therefore thrown out the breath reading in his case. The appellate Division disagreed.
The court held: In State v. Chun, 194 N.J. 54, 943 A.2d 114, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Supreme Court thoroughly addressed the scientific reliability of the Alcotest and adopted certain standards and procedures that must be followed by police and prosecutors before the Alcotest report is admitted in evidence. Contrary [*12] to defendant’s assertions, the Court did not adopt a hard-and-fast “two-minute rule” as a predicate to admissibility.
In describing the administration process step-by-step, the Court noted that “[a]fter a two-minute lock-out period during which the device will not permit another test, the instrument prompts the operator to read the instruction again to the arrestee and collect the second breath sample.” Id. at 81 (emphasis added). “[A]t least two breath samples” are necessary for the results to be valid. Id. at 118, 151.
The Special Master’s Report, relied upon by the Chun Court, discussed possible contamination from one sample to the next whenever the a second sample was taken too soon. See Findings and Conclusions of Remand Court, No. 58, 879, 2007 N.J. Lexis 39 at 43 (N.J. Feb. 13, 2007).
Witnesses before the Special Master testified that the two-minute lockout period was one of the safeguards preventing residual alcohol from one sample contaminating a subsequent sample. Id. at 43, 135, 195. Two of the witnesses before the Special Master noted that although the Alcotest instrument did not always strictly adhere to the two-minute lockout period as per its design, the timing error was [*13] “very slight.” Id. at 100, 135. Despite the possibility that the Alcotest would recalibrate before two minutes elapsed between samples, the Special Master nonetheless concluded that the Alcotest machine was “scientifically reliable in an evidentiary setting but that certain improvements could be made in the program to effect even greater confidence.” Id. at 115.
In this case, the first sample was taken at 4:42 a.m. and the second at 4:43 a.m.. Krebs testified that the instrument recalibrated automatically during the lockout period in between, that a second sample could not be taken until the machine recalibrated itself, and he noted that the time on the printout for each sample is automatically rounded down (e.g., a reading taken at 4:43:59 will say 4:43). Considering Krebs’ expert testimony regarding the proper functioning of the Alcotest machine, and the lack of any expert testimony to the contrary, the test results were properly admitted.”
New Jersey DWI defense lawyers strongly disagree with this holding. First, the court deemed the arresting officer to be an expert in the functionality of the Alcotest machine. This officer was simply trained in how to use the machine and had used the machine to test his arrestees in the past. The office was not an engineer and had no ostensible technical expertise.
Moreover, the plain language of Chun clearly states that the Alcotest machine must engage in a two-minute lockout period before another breath test is administered. There have also been wide reports of the Alcotest malfunctioning in regard to its need to purge its cuvette between breath samples. At least this case is unpublished, meaning that it is not binding on other courts.
If you think that your Alcotest results could be wrong due to an Alcotest malfunction, contact my office today to set up your free consultation.
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