Once again, the validity of breath-test measurements coming out of New Jersey’s Alcotest devices is being questioned, this time by Seton Hall University’s school of law. Titled “The Untestable Drunk Driving Test,” the report shines a spotlight on the reputed accuracy and reliability one of the most damning pieces of evidence used by the state in DWI cases against motorists accused of driving under the influence of alcohol.
Working with other DWI defense lawyers at my firm, we have a great deal of experience in this area. In fact, as a former municipal prosecutor I myself relied on the results for the blood-alcohol content (BAC) testing that law enforcement officers perform everyday on accused drunken driving offenders.
According to this latest report out of Seton Hall in South Orange, NJ, Alcotest maker Draeger AG & Company lobbied to have the machine’s source code classified as a trade secret. Because of this, there has apparently been no easy way to confirm the accuracy of the device. What this means, essentially, is that the state of New Jersey purchased a “black box” device that state police and other law enforcement agencies use regularly to arrest and charge drivers with drunk driving.
Because no independent group is allowed to buy and test the Alcotest device — apparently a Seton Hall University professor attempted to buy one from Drager, but was denied — scientific comparisons are next to impossible. Based on recent news reports, 20 people convicted of DWI have sued the state over the results of the Alcotest device. As a result, Drager agreed to allow outside companies to review the source code, but not the machine itself.
Reportedly, Draeger contracted Colorado-based SysTest Labs to review the device’s source code, while the plaintiffs used a New York-based company to analyze the code. The Seton Hall report claims that both companies determined the code was flawed, however, these third parties each reached different conclusions regarding the reliability of the machine.
SysTest said that despite the flaws the Alcotest machine would “reliably produce consistent test results.” This in itself is not a glowing endorsement, but the plaintiffs’ research firm, Base One, went one further by saying it found 24 “major defects,” nine of which would have a significant impact on the device’s testing results.
Base One also reported defects in three out of every five lines of code. The company, in fact, recommended suspending use of the Alcotest units until the software could be further analyzed. Despite these results, the court ruled in favor of the reliability of the device, opening the door to possible more erroneous breath-test readings and potentially dozens of innocent individuals being wrongly charged with DWI.
Certainly, this latest paper by the Seton Hall University Law School will keep the debate moving forward. But as the report concludes, without further independent examination of the Alcotest device’s source code, there is no way to test the accuracy of the machine.
Report Questions N.J. DWI Devices, MyFoxNY.com, April 29, 2010