New Jersey DWI Attorney John Menzel

What Protocol Should Police Follow in Administering the Alcotest Breath Test in New Jersey?


New Jersey now uses the Alcotest 7110 MK-IIIC to test the breath of persons suspected of driving while intoxicated. Every six months, a New Jersey State Police officer called a Breathy Test Coordinator Instructor checks the calibration of the instrument through a process using various strengths of alcohol simulators to make sure the machine is functioning properly. There are two critical components in checking the calibration of the instrument: the strength of the simulator solution and the temperature at which that solution is kept. The temperature is 34 degrees Celsius, plus or minus 0.2 degrees Celsius–the supposed temperature of a breath sample coming out of the human body. The coordinator uses a reference simulator solution that yields a vapor concentration of 0.10% as a control and three other simulators containing alcohol solutions yielding vapor alcohol strengths of 0.04, 0.08 and 0.16.

The coordinator will also have a fifth simulator with a 0.10 solution. That is the simulator assigned to the particular police department that owns the Alcotest instrument that the coordinator is testing. When the coordinator comes in to check the calibration, he will line up these five simulators and put fresh simulator solution into each one. Each simulator is like a peanut butter jar with a very fancy lid. What makes the lid fancy is this: a heater that goes into the solution, a port into which the coordinator can insert a temperature probe, and an agitator to keep the alcohol concentration of the liquid solution homogeneous. The coordinator hooks these five simulators up and gets them cooking for about an hour to permit any air bubbles to percolate out of the liquid solution and to make sure that the temperature throughout each solution is the same.

Once the coordinator cooks the simulators, protocol requires him to check the temperature of the solutions in each of those simulators with a temperature probe that has been certified to relate back to the national standards maintained by the National Institute of Standards and Technology [“NIST”], formerly the National Bureau of Standards. The thermometer that the coordinator uses initially is manufactured by a company called Control Company Inc. The thermometer yields a temperature measured to a degree Celsius, plus or minus 0.01 degrees Celsius. This is a much more precise measurement than that made by the temperature probes associated with the Alcotest instrument, which measure to a degree Celsius, plus or minus 0.2 degrees Celsius.

The fact that you can only measure a temperature with a certain degree of precision is okay because every measuring instrument is never exact. There is always a certain degree of uncertainty. As long as we can define what that uncertainty is, we can consider the results given by that instrument to be scientifically reliable within that degree of uncertainty. The temperature measurements of the temperature probes associated with the Alcotest instrument are compared to those made by the Control Company thermometer. The Control Company’s thermometer’s temperature measurements have been compared to measurements made by equipment in another laboratory. This equipment can measure temperature with an even greater degree of precision, to a degree Celsius plus or minus 0.001 degrees, and that laboratory equipment ultimately is compared to a degree of temperature maintained by NIST.

This chain of comparisons from the temperature probe associated with the Alcotest instrument to the national standards assures that the degree of temperature measured by the temperature probe is equivalent to any other degree of temperature measured in forensic science and commerce, provided those other measurements are also traceable to the national standards.

Former coordinator Sgt. Marc Dennis is accused of not doing the steps that he was required to do as a coordinator. He was required to measure the simulation solution temperature with the Control Company thermometer. If he did not do this, he could not maintain the chain of comparisons necessary to assure that the temperature probes associated with the Alcotest instrument are measuring temperature accurately. The State has alleged that, because he failed to do that step, he has committed certain crimes. One of these crimes was false swearing as to statements in documents he was required to sign indicating that he did that step. Another was misconduct in office.

The failure to use a NIST-traceable temperature probe has consequence to a DWI defendant affected by that failure. That defendant may challenge the admissibility of his or her breath test result, and the State’s ability to prove guilt is compromised. Only an experienced DWI defense attorney can understand this and other Alcotest malfunctions. Therefore, getting in touch with an attorney experienced with the Alcotest in New Jersey is very important. Such an attorney will be familiar with local laws and how the court system works in the region.

For more information on Protocols in Administering Alcotest in NJ, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 899-1899 today.

John Menzel, J.D.

Learn your options - call me for your free, 20 min phone consultation (732) 899-1899

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