What follows is a discussion of breath testing source-code challenges that have been brought in New Jersey. It was written by one of the nation’s top DUI defense lawyers, Evan Levow.
New Jersey was the last to get rid of the antiquated Draeger-Smith & Wesson Breathalyzer®, replacing it with a computer-chip based machine, the Draeger Alcotest MKIII-C®. The Alcotest is a dual measuring device, using both fuel cell and infrared technology to assess a breath sample. No other company uses this dual technology, and the combination of the measurements, at first glance, made the machine and the process sound too good to be true.
Other jurisdictions are currently implementing the Alcotest, including Massachusetts and Connecticut, although they are using the 9510 model, which is a Windows® type format, but is essentially the same as the 7110. Washington is about to purchase the 9510, as well. New York State Police and some counties in California have been using the 7110 for a couple of years now.
Without the computer chips in the Alcotest®, Intoxilyzer®, DataMaster®, or Intoximeter®, the machines would be useless. The machines run based on computer language or “source code”.
Defendants in several jurisdictions, including Arizona, Florida and Minnesota, sought the source code from CMI, the manufacturer of the Intoxilyzer®, but actual litigation to obtain the code has not been successful. DataMaster® has, with a non-disclosure agreement, allowed its code to be reviewed, but no litigation resulted from the review.
Only New Jersey, has undergone full source code litigation, both to obtain the code and a court based challenge on the reliability of the code.
In 2002, a pilot program was started in one New Jersey town, testing over 300 defendants on the Alcotest 7110. Litigation was instituted in a single county, resulting in authorization to use the machine in that one county, only, in a case called State v. Foley, 370 N.J.Super. 341, 851 A.2d 123 (Law Div., 2003). Foley resulted in some software changes to the machine.
However, appellate approval was required to use the machine state-wide, and the State failed to certify the case to the Appellate Division. Not realizing its mistake, the State began to roll-out the machine county by county in 2005. Several defendants began making discovery requests for the source code, and the State again certified a group of cases in a county level court, in State v. Chun. That court declined to grant judicial notice of Foley, and the issue was eventually picked up, sua sponte, by the New Jersey Supreme Court.
The Supreme Court appointed a Special Master to conduct a state-wide reliability hearing on the machine. The ensuing litigation lasted over three years, produced over 10,000 pages in testimony and almost 300 exhibits. National and international experts testified for the parties, including Michael Hlastala, Ph.D., and Gerald Simpson, Ph.D.
Initially, Draeger declined to get involved in the litigation, and would not grant any realistic access to the source code. After the Special Master issued his first of two findings of fact, Draeger intervened in the litigation because it did not like some of the Master’s rulings. As a party to the limitation, the Supreme Court then ordered Draeger to disclose its source code under protective order
The defense team, which included Evan Levow, hired a source code analyst that found several errors and issues with the code. Each one of these errors was opined to be enough to determine that the code is not scientifically reliable:
- The Alcotest® software would not pass U.S. Industry standards for software development and testing. The software was not developed to any known standards, or, according to Draeger’s software engineer, no guideline standards at all.
- Actual proof of incomplete software testing.
- Catastrophic error detection in the program is disabled. As a result, the machine would not know if critical processes failed during its operation.
- Design lacks positive feedback. The machine cannot tell if the program is functioning correctly, and that each of the processes or calculations are occurring during operation of the program.
- Diagnostics adjust or substitute actual readings.
- Flow measurements adjust and substitute
- No error detection logic
- Software does not insulate/protect modules or data
- Timing problems
The most significant issue with the reliability of the Alcotest® actually came up during the cross-examination of one of Draeger’s software designers, who testified that the fuel cell measurements were actually tied in to and calibrated by the infrared measurements. If the machine sensed an error with the fuel cell reading, it basically brought the fuel cell reading in line with the infrared reading and did not report any error. The designer testified that, due to fuel cell drift, there was up to twenty five percent error in the fuel cell measurement.
This revelation directly contradicts Draeger’s claim that the Alcotest® is the only machine available that tests breath with two independent sources, fuel cell and infrared.
In March 2008, in State v. Chun, 194 N.J. 54 (2008) the New Jersey Supreme Court disregarded these errors and held that the machine, with certain safeguards, was reliable. The machine tolerance between acceptable fuel cell and infrared readings was reduced by fifty percent, and the volume of air required to be emitted by women aged 60 years or older was reduced. A twenty minute observation period prior to the breath testing was mandated.
An appeal was filed to the United States Supreme Court on confrontation issues under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Certiorari was denied, Chun v. New Jersey, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008).
Despite the errors and issues present in the Alcotest 7110 MKIII-C, it is now used throughout New Jersey.
The case involving the lead defendant, Jane Chun, was ongoing at press time. Ironically, the breath test results in Ms. Chun’s case were excluded from evidence, due to failure to follow protocol procedures for breath testing. Field tests were administered while Ms. Chun was wearing high heeled shoes.
Massachusetts has also begun a scientific reliability challenge to the Alcotest.