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State v. Chun

March 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JANE H. CHUN, DARIA L. DE CICCO, JAMES R. HAUSLER, ANGEL MIRALDA, JEFFREY R. WOOD, ANTHONY ANZANO, RAJ DESAI, PETER LIEBERWIRTH, JEFFREY LING, HUSSAIN NAWAZ, FREDERICK OGBUTOR, PETER PIASECKI, LARA SLATER, CHRISTOPHER SALKOWITZ, ELINA TIRADO, DAVID WALKER, DAVID WHITMAN AND JAIRO J. YATACO, DEFENDANTS-RESPONDENTS, AND MEHMET DEMIRELLI AND JEFFREY LOCASTRO, DEFENDANT, AND DRAEGER SAFETY DIAGNOSTICS, INC., INTERVENOR.



On certification to the Superior Court, Law Division, Middlesex County.

SYLLABUS BY THE COURT

HOENS, J., writing for the Court.

In this case, the Court addresses the scientific reliability of the Alcotest 7110 MKIII-C evidentiary breath-testing device (Alcotest) and considers the admissibility of the Alcohol Influence Reports (AIRs) that it generates for the prosecution of defendants under New Jersey drunk driving laws.

Defendants are twenty individuals charged with driving while intoxicated, N.J.S.A. 39:4-50, in Middlesex County, who challenged the admissibility of Alcotest results in their individual proceedings. The Law Division consolidated the cases to consider the reliability of the device. The State filed a motion requesting that the device be recognized as scientifically reliable. The Law Division denied that motion, and the State filed an interlocutory appeal. The Appellate Division remanded the matter, but before that proceeding could continue, the Court directly certified the appeal pursuant to Rule 2:12-1 on December 14, 2005.

The Court remanded the case to retired Appellate Division Judge Michael Patrick King, sitting as a Special Master, to conduct a hearing on the overall scientific reliability of the Alcotest. Following four months of testimony, the Special Master issued a report on February 13, 2007. He concluded that the device was scientifically reliable, conditioned on specific modifications and recommendations. After that report was issued, but before oral arguments were heard, the manufacturer of the device, Draeger Safety Diagnostics (Draeger), moved for leave to intervene, which motion the Court granted on March 27, 2007. Following oral arguments, the Court again remanded the matter to the Special Master, this time to afford defendants an opportunity, following Draeger's intervention, to examine the source code that comprises the Alcotest software. After receipt of experts' reports and further testimony, the Special Master issued a supplemental report on November 8, 2007, in which he affirmed his original finding of scientific reliability, contingent on several additional recommendations. Thereafter, the Court conducted a second round of oral arguments.

Three distinct sets of challenges were raised regarding the use of Alcotest results in drunk driving prosecutions. The first set of challenges related to how the machine measures a suspect's blood alcohol concentration (BAC). It was contested whether: (1) the Alcotest's use of a 2100 to 1 blood/breath ratio is unreliable because it overestimates the actual BAC of some individuals; (2) to avoid equal protection issues, all suspects, instead of just women over the age of sixty, should be held to a minimum breath sample volume requirement of 1.2 liters of air; (3) a breath temperature sensor is necessary because the machine may overestimate the BAC of exhaled breath above a certain temperature; (4) the machine's tolerance, which is the deviation range within which test measurements must fall to constitute a reliable result, is acceptable.

The next set of challenges related to the Alcotest's programming and source code. Defendants argued that:

(1) the use of an algorithm to compensate for the depletion or "drift" of fuel cells artificially inflates results; (2) the use of a "weighted averaging" algorithm, which places greater weight on later breath measurements than earlier ones, also serves to artificially inflate results; (3) a buffer overflow error undermines the reliability of Alcotest results in certain circumstances; (4) the lack of catastrophic error detection within the device undermines the reliability of its results; and (5) the overall programming style fails to follow any design standard, and is so flawed that it can not be relied on to produce accurate results.

The third set of challenges related to the admissibility of Alcotest results and foundational documents as potentially violating Sixth Amendment rights under Crawford v. Washington.

HELD: The Court adopts, as modified, the Special Master's reports and recommendations. Subject to certain conditions, the Court holds that the Alcotest is scientifically reliable and that its results are admissible in drunk driving prosecutions. The Court contemporaneously issues an Order vacating its January 10, 2006, stay of drunk driving prosecutions, appeals, and sentencing, which shall proceed in accordance with the directives set forth therein.

1. There is sufficient credible evidence to support the continued use of a 2100 to 1 blood/breath alcohol ratio to estimate BAC from a breath sample. The overwhelming evidence demonstrates that use of this ratio tends to underestimate the actual BAC in the vast majority of persons whose breath is tested. Although there may be a small number of individuals who are disadvantaged by a device that uses the 2100 to 1 blood/breath ratio, there is sound scientific support for its continued utilization. (pp. 49-52)

2. The four criteria used by the device to identify a valid breath sample are, with one modification, appropriate. The Court adopts the recommendation that the minimum breath volume requirement should be lowered, for women over sixty years of age only, from 1.5 liters to 1.2 liters and concludes that this modification does not violate equal protection rights. Regardless of minimum breath requirements, no test will be accepted by the machine until the infrared measurement plateaus, which only occurs when a suspect is expelling deep lung air. Further, while selectively lowering the breath volume requirement will create a different level at which women over sixty may be charged with refusal, the record demonstrates that this group, and only this group, may not have the physiological capability of providing a larger sample. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, an Alcotest AIR with an insufficient volume error message may not be used as evidence of refusal against women over the age of sixty, unless they also provided another sample of at least 1.5 liters. (pp. 52-65)

3. The Court declines to adopt the recommendation that a breath temperature sensor be added to the Alcotest, concluding that this device is both unnecessary and impractical. The record includes scant evidence of a correlation between breath temperature and increased breath alcohol concentration, and no evidence that the theoretical increase in breath alcohol concentration would translate into an inaccurately elevated BAC. Further, any potential effect is ameliorated by the 2100 to 1 blood/breath ratio and by use of truncated, rather than rounded, results, both of which serve to underestimate results. Requiring the addition of a breath temperature sensor would also present an unreasonable maintenance burden on New Jersey's breath testing program. (pp. 65-71)

4. A tolerance range of an absolute 0.01 percent (plus or minus 0.005 percent from the mean) BAC standard, coupled with the use of a like percentage range of tolerance expressed as five percent plus or minus deviation from the mean, is both scientifically appropriate and consistent with the intention of the Legislature in adopting per se limits. The device must therefore be reprogrammed to comply with this standard. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, in which the AIR reports a BAC obtained using a doubled tolerance range, the reported breath samples must be reviewed to determine whether the results meet this tolerance range. Any AIR that does not include two valid tests within tolerance under this standard cannot be deemed to be sufficiently scientifically reliable to be admissible and shall not be admitted into evidence as proof of a per se violation. (pp. 71-88)

5. The Alcotest's use of the fuel cell "drift" algorithm does not undermine its reliability. Scientific evidence demonstrates that fuel cells begin to age as soon as they are put into service, and will eventually cause the Alcotest's electric chemical test to underestimate BAC. While there may be other means to compensate for this "drift," those means would not, in the end, be any more advantageous to defendants than the minor upward adjustment that the algorithm effects. However, the Court adopts the Special Master's recommendation that the devices be recalibrated semi-annually instead of annually. A semi-annual calibration is consistent with the manufacturer's recommendations and provides a useful safeguard by affording a more regular opportunity to evaluate and replace aging fuel cells. (pp. 89-95)

6. The Court concludes that the Alcotest's "weighted averaging" algorithm is an appropriate calculation that results in a more accurate infrared measurement. It gives greater weight to the breath that, inevitably, includes the deepest air drawn from the lungs. It therefore focuses the analysis on the portion of the breath sample that most accurately represents the subject's BAC. (pp. 95-96)

7. The buffer overflow error is a real error in the programming that may cause the Alcotest to report incorrect results in situations involving a third breath sample, which is taken only when the measurements from the first two tests are not in tolerance. The buffer overflow programming error, which must be corrected, affects only the final BAC result reported on the AIR. Because the infrared and electric chemical measurements for all of the test samples are accurately reported on the AIR, the correct BAC value can, and must, be computed from those measurements by applying a corrective formula. In pending prosecutions, and in future prosecutions based on tests conducted prior to the implementation of the Court's directives, the State must review all AIRs that include three tests, perform the calculations to identify the correct BAC in accordance with the corrective formula, and provide that data to the court. The calculations must be made a part of the evidence in any prosecution to facilitate appellate review. (pp. 96-102)

8. The Court finds adequate support in the record that catastrophic error detection should be re-enabled in the Alcotest. This detection will allow the machine to recognize catastrophic errors and respond by shutting down. There is no basis for the Court to conclude that the lack of catastrophic error detection could result in an inaccurate AIR in any pending prosecution. (pp. 102-103)

9. The Court finds the overall programming style and design of the source code to be acceptable. The exhaustive review undertaken in this case revealed few actual errors or issues within the source code. There being no evidence in the record that any other asserted shortcomings are more than stylistic or theoretical challenges, the Court declines to require any specific programming standards at this time. (pp. 104-105)

10. In future revisions to the Alcotest software, the State must: have the Alcotest software locked so that only the manufacturer can make revisions to the source code; have the software revised so that the Alcotest identifies and prints the software version that it is utilizing on each AIR; and give detailed notice consistent with due process to the public and the New Jersey State Bar Association of any future revisions. (pp. 105-107)

11. Draeger must make Alcotest training, comparable to that provided to the State, available to licensed New Jersey attorneys and their experts at reasonable times and locations within New Jersey and at a reasonable cost. (p. 108)

12. The twelve foundational documents identified by the Special Master must be provided during discovery in all matters. The operator of the device shall be available to testify and shall produce evidence of his qualifications to operate the device. The following foundational documents, evidencing the good working order of the machine, shall be admitted into evidence in prosecutions based on Alcotest breath testing results: the most recent calibration report, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration; the most recent new standard solution report prior to a defendant's test; and the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests. These foundational documents are not "testimonial," as defined by the United States Supreme Court in Crawford v. Washington and its progeny. In so holding, the Court aligns itself with the majority of other courts, which have found that such documents are business records, which do not implicate the Confrontation Clause. (pp. 108-125)

13. The AIR itself, a "statement" of a machine, is not testimonial under Crawford because it does not implicate Crawford's core concerns -- it is not a report of a past event, given in response to police interrogation, with the purpose of establishing evidence that a defendant committed an offense. Although the AIR is not testimonial evidence, the Court nevertheless mandates various safeguards to protect a defendant's due process rights: the opportunity to cross-examine the operator of the Alcotest, the routine production of all foundational documents in discovery, and the admission of the core foundational documents into evidence at trial. (pp. 125-130)

The findings and conclusions of the Court's Special Master are ADOPTED, as MODIFIED. The matters involved in these consolidated proceedings are REMANDED to the Law Division for further proceedings consistent with this opinion and the accompanying Order.

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS' opinion. CHIEF JUSTICE RABNER did not participate.

The opinion of the court was delivered by: Justice Hoens

Argued April 5, 2007; Remanded April 30, 2007; Master's Report filed November 8, 2007; Re-argued January 7, 2008

INTRODUCTION

For decades, this Court has recognized that certain breath testing devices, commonly known as breathalyzers, are scientifically reliable and accurate instruments for determining blood alcohol concentration (BAC)*fn1 and that drivers whose breathalyzer test results demonstrate the requisite statutorily-imposed BAC are guilty per se of driving while intoxicated (DWI). Although the Legislature has from time to time reduced the permissible BAC limits and has altered the penalties for this offense, and although we have required foundational proofs relating to the operation of the breathalyzer device as a precondition for admission of the breathalyzer test results into evidence, the accuracy and reliability of the breathalyzer itself has remained essentially unquestioned since our decision in Romano v. Kimmelman, 96 N.J. 66 (1984).

Nevertheless, in the intervening years, the devices have become technologically outdated, with the result that replacement parts are no longer available and the machines themselves, when they fail, cannot be repaired or replaced with like equipment. Faced with an increasingly difficult situation, the Attorney General's office began to consider alternate devices to use for breath-testing purposes. That process led to the decision by the Attorney General to select the Alcotest 7110 MKIII-C (the Alcotest).*fn2 Following its introduction into service in a pilot program in Pennsauken, the use of the Alcotest has been expanded to all but four of our counties. Its use and its capabilities, as a means to analyze breath samples with sufficient accuracy so that the results will be admissible into evidence to support a conviction, withstood an initial challenge arising from the Pennsauken program. Thereafter, the continued expansion of use of the Alcotest around the state resulted in a further challenge to its scientific reliability, which has been the essential focus of our inquiry here.

In our effort to analyze the reliability of the Alcotest, we have not only considered the questions concerning the scientific challenges to the machine, but we have also considered the underlying constitutional questions about the permissibility of its use in the context of a per se violation of the statute based solely on the results it reports, together with such safeguards and foundational requirements that will allow its admissibility in a DWI prosecution. We have been aided enormously in this task by the efforts of the Special Master for his analysis of the voluminous record created during the extended proceedings on remand.

In summary, we conclude that the Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but that certain modifications are required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. Some of these conditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain of the device's mechanical and technical shortcomings that were revealed during the proceedings on remand. Within the framework for admissibility that we here establish, pending prosecutions should be able to proceed in an orderly and uniform fashion.

I. Facts and Procedural History

The matters that we have been called upon to consider are both many and varied; even among those issues on which the parties agree, we are required to create mechanisms for addressing the uses of Alcotest results generated in prosecutions undertaken prior to this analysis.

The Alcotest is a breath-testing device,*fn3 manufactured and marketed by Draeger Safety Diagnostics Inc. (Draeger), which was first utilized in New Jersey as part of a pilot project in Pennsauken. The admissibility of the results derived from breath testing by this device was first challenged in 2003. See State v. Foley, 370 N.J. Super. 341 (Law Div. 2003). In a published decision addressing that challenge, the Law Division judge concluded that the device was generally scientifically reliable and that the BAC readings it generates are therefore admissible as proof of a per se violation of the drunk driving statute. Id. at 345.

Following the decision in Foley, the State expanded the use of the device to other municipalities, including county-wide utilization in Middlesex County. At the same time, in cooperation with State Police personnel charged with overseeing the device's implementation, see N.J.A.C. 13:51-3.2, the manufacturer created revised software for use in the device.*fn4

A. Certification to this Court

Defendants are twenty individuals who were arrested in various municipalities in Middlesex County and were charged with driving while intoxicated, see N.J.S.A. 39:4-50. Each of these defendants challenged the admissibility of results from the Alcotest in their respective proceedings. The Law Division consolidated all of these matters for consideration of the challenge to the Alcotest. In response, the State filed a motion seeking to have the court recognize the Foley opinion as binding authority and apply its findings about the scientific reliability of the device to all pending prosecutions. The Law Division denied that motion and stayed all DWI-related cases involving the Alcotest that were then pending in Middlesex County.

The Appellate Division granted the State's motion for leave to appeal and remanded the matter to the Law Division for a hearing regarding the admissibility of Alcotest results. Before that hearing could proceed, this Court certified the pending appeal pursuant to Rule 2:12-1, vacated the remand to the trial court, and instead remanded the case to a Special Master, retired Appellate Division Presiding Judge Michael Patrick King. The Court ordered the Special Master to:

1. Conduct a plenary hearing on the reliability of Alcotest breath test instruments, including consideration of the pertinent portions of the record in State v. Foley, 370 N.J. Super. 341 (Law Div. 2003), and the within matters in the Superior Court, Law Division, Middlesex County, together with such additional expert testimony and arguments as may be presented by the parties;

2. Determine whether the testimony presented by the parties should be supplemented by that of independent experts selected by the Special Master;

3. Grant, in the Special Master's discretion, motions by appropriate entities seeking to participate as amici curiae, said motions to be filed with the Special Master within ten days of the filing date of this Order;

4. Invite, in the Special Master's discretion, the participation of entities or persons as amici curiae or, to the extent necessary in the interests of justice, as intervenors to assist the Special Master in the resolution of the issues before him; and

5. Within thirty days of the completion of the plenary hearing, file findings and conclusions with the Clerk of the Court and contemporaneously serve a copy on the parties and amici curiae, which service may be effectuated by the posting of the report on the Judiciary's website.

Although we also vacated the Law Division's stay of all drunk driving cases then pending in Middlesex County, we subsequently created a distinction among pending prosecutions based upon the proofs and the status of the charged individuals. Our January 10, 2006 Order therefore directed that all drunk driving prosecutions, see N.J.S.A. 39:4-50, that did not involve an Alcotest, and all cases of repeat offenders, should proceed normally. As to repeat offenders who were thereafter found guilty, we directed that the sentences to be imposed on those defendants would be stayed only if the conviction were based on the Alcotest results alone. We ordered that first-offender cases involving the Alcotest be tried "based on clinical evidence when available, including but not limited to objective observational evidence, as well as the relevant Alcotest readings." We further ordered that if a court found that a first offender was guilty, it was required to articulate, if possible, the alternate bases for the finding. We stayed the execution of all first offenders' sentences pending resolution of this matter, except where public interest required otherwise, and stayed all further requests for Alcotest reliability hearings. Finally, we reiterated our earlier Order authorizing conditional guilty pleas, see R. 7:6-2(c), with a reservation of the right to appeal in the event that we concluded that the Alcotest is not reliable.

The Association of Criminal Defense Lawyers of New Jersey (ACDL) and the New Jersey State Bar Association (NJSBA) were subsequently permitted to participate as amici curiae in all of the remand and appellate proceedings.

B. Remand Hearings

Shortly after being appointed to serve, the Special Master issued a discovery order directing the State to provide defendants with certain technical information concerning the operation of the Alcotest device, followed by an order directing the State to make several Alcotest machines available to defendants and the NJSBA. In large part, the ensuing dispute about the disclosure of the software used to operate the device, called firmware, and the source codes needed for an analysis of that software, caused significant disruption in the orderly completion of the proceedings and eventually led to our further remand for additional proceedings.

In short, however, the Special Master was advised that Draeger considered the software and the source code to be proprietary information and would not disclose it. He proposed that counsel enter into a standard protective order and invited Draeger, which was not then a party, to intervene in the proceedings. Draeger declined the Special Master's invitation to intervene. At the same time, Draeger refused to permit the parties to review the software except under extremely limited conditions and refused to disclose the source code under any circumstances. As a result of this impasse, the Special Master concluded that he could utilize an adverse inference as to the reliability of the device, but he proceeded with the hearings in the absence of any participation by Draeger. Near the end of the initial hearings, defendants and Draeger entered into a letter agreement, which would have permitted defendants to evaluate future changes to the software in the event that the Alcotest was found to be scientifically reliable.*fn5

Following hearings that spanned four months, the Special Master issued his findings and conclusions, embodied in a report to this Court dated February 13, 2007. In that report, the details of which we address in Section IV.A., infra, the Special Master concluded that the Alcotest is generally scientifically reliable, but he recommended that several changes be incorporated both prospectively and with respect to pending matters. Thereafter, but prior to the time when we received briefs on the merits and entertained oral argument, Draeger moved for leave to intervene before this Court, which motion we granted.

After the initial oral arguments on April 5, 2007, including those offered by Draeger, we remanded the matter to the Special Master again to allow defendants an opportunity to conduct the analysis of the source code that they had contended was essential to an accurate determination of the reliability of the device. State v. Chun, 191 N.J. 308, 309 (2007). In doing so, we directed that the review be undertaken by an independent software house, to be agreed upon by Draeger and defendants, in order to preserve Draeger's proprietary interests. Id. at 309-10.

The parties, however, were unable to agree on an independent software house that would conduct the source code analysis. Although our order authorized the Special Master in that event to make the selection, he believed he was not well equipped to choose and he so advised us. Therefore, this Court issued a supplemental order allowing each of the parties, at its own expense, to designate an independent software house to review the source code. The supplemental order also provided that the Special Master, at his discretion, could conduct further hearings following his receipt and review of the expert reports.

Draeger and defendants each designated a software house to analyze the source code and report on its reliability. Because the reports reached different conclusions, the Special Master scheduled further hearings. After ten additional days of testimony and two days devoted to summations, the hearings were completed on October 24, 2007. The Special Master submitted his Supplemental Findings and Conclusions to this Court on November 8, 2007. He concluded, in summary, that the source code analysis did not alter his original opinion that the Alcotest is scientifically reliable, as to both its hardware and software elements. However, he conditioned this conclusion on additional recommendations, which supplemented those contained in the initial report.

II. Legislative Framework

Our analysis of the issues surrounding the scientific reliability of the Alcotest device and our consideration of the Special Master's recommendations must begin with an understanding of the legislative framework that bears upon drunk driving prosecutions. We turn, then, to an explanation of the statutes governing the offenses that we generally refer to as drunk driving, together with an analysis of the relevant legislative history that bears on the issues before us.

The Legislature has established that an individual is guilty of driving while intoxicated if he or she "operates a motor vehicle with a blood alcohol concentration of [0].08 [percent] or more by weight of alcohol in [his or her] blood." N.J.S.A. 39:4-50(a). For first offenders who have a BAC that is 0.10 percent or greater, harsher penalties and higher fines apply. See N.J.S.A. 39:4-50(a)(1). Subsequent offenses, as measured by the 0.08 percent standard, are treated with increasingly harsh penalties, including not only longer periods of license suspension, but incarceration as well. See N.J.S.A. 39:4-50(a)(2), -50(a)(3).

As we have previously found, the primary purpose behind our drunk driving laws is to remove intoxicated drivers from our roadways and thereby "to curb the senseless havoc and destruction" caused by them. State v. Tischio, 107 N.J. 504, 512 (1987). We have consistently construed these laws both broadly and pragmatically to ensure that the Legislature's intent is effectuated. See id. at 513; State v. Mulcahy, 107 N.J. 467, 479 (1987) (concluding that turning on ignition is not required for finding that person behind the wheel was in control of and intended to operate vehicle); State v. Wright, 107 N.J. 488, 497 (1987) (concluding that predicate of actual operation of vehicle is not required for request that individual undergo breathalyzer testing).

As part of the effort to rid our roads of drunk drivers, the Legislature has sought over time to streamline the process by which those charged with DWI offenses are efficiently and successfully prosecuted. See Tischio, supra, 107 N.J. at 514. Our current laws, as a result, can only be interpreted correctly if they are viewed in the context of this continuing evolution.

Our analysis begins in 1951, when, in order to address growing difficulties and confusion surrounding the evidentiary burden for establishing operation of a vehicle "under the influence," the Legislature enacted N.J.S.A. 39:4-50.1. Tischio, supra, 107 N.J. at 514-15; see also State v. Protokowicz, 55 N.J. Super. 598, 603 (App. Div. 1959). This statute provided that a 0.15 percent blood-alcohol level gave rise to a presumption of intoxication for purposes of a driving under the influence prosecution. Tischio, supra, 107 N.J. at 515. A blood-alcohol level below 0.05 percent gave rise to a presumption of non-intoxication, and a level between the two gave rise to no presumption. Id. at 515 n.3. These legislative presumptions were targeted at reducing the evidence, specifically expert and other testimony, which was otherwise needed to prove intoxication and convict a drunk driver. Id. at 515.

At that time, New Jersey's 0.15 percent standard was the most permissive in the country, see id. at 515-16 (citing Motor Vehicle Study Commission, Report to the Senate and the General Assembly of 1975 (hereinafter "Report"), at 135), although the penalties imposed were "among the most stringent." Id. at 515, 515 n.4. Nevertheless, studies revealed that most drivers were impaired at BAC levels significantly lower than the statutory presumption employed in the 1951 statute. Id. at 516 (citing Report, supra, at 141-42). As a result, the Legislature amended N.J.S.A. 39:4-50.1, in 1977, see L. 1977, c. 29, to lower the presumptive BAC for intoxication purposes from 0.15 to 0.10 percent. Tischio, supra, 107 N.J. at 516.

In 1983, the Legislature again amended the drunk driving statutes to take into account "mounting scientific findings," to the effect that almost all drivers suffered reduced driving ability at a BAC of 0.10 percent. Ibid. At the same time, the amended statute brought the state into compliance with minimum federal grant standards. L. 1983, c. 129; Assembly Judiciary, Law, Public Safety & Defense Committee, Statement to Assembly Committee Substitute for Senate Bill No. 1833 (Feb. 14, 1983). Significantly, the amended version of N.J.S.A. 39:4-50 provided that a 0.10 percent BAC level constituted a per se offense, instead of simply giving rise to a presumption.*fn6

In 1990, the New Jersey Commercial Driver License Act was enacted. L. 1990, c. 103. It created an even more stringent standard to be applied to drivers of commercial vehicles. It provides a penalty, in addition to any other applicable penalties, of a one to three-year commercial license suspension for commercial drivers caught driving with a BAC level of 0.04 percent or greater. N.J.S.A. 39:3-10.13, -10.20(a)(1). The 0.04 percent BAC standard for commercial drivers was enacted both to comply with the federal standard in the Commercial Motor Vehicle Safety Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) (codified at 49 U.S.C.A. § 31310), and in recognition of the fact that significant impairment occurred well below the otherwise applicable 0.10 percent BAC levels. See L. 1990, c. 103; Assembly Appropriations Committee, Statement to Assembly Bill No. 3258, at 23 (Oct. 1, 1990).

In 1992, the Legislature enacted an additional drunk driving prohibition by creating a new per se offense, which applies to drivers who are under the legal drinking age. L. 1992, c. 189. This most recently-added tier provides that any person under the age of twenty-one who is caught driving with a BAC level above 0.01 percent faces a thirty to ninety-day license suspension, in addition to community service requirements. See N.J.S.A. 39:4-50.14. The statement attached to the legislation explained that the bill was intended to establish penalties for any driver under the age of twenty-one who is "found to have consumed an alcoholic beverage." L. 1992, c. 189; Assembly Judiciary, Law & Public Safety Committee, Statement to Assembly Committee Substitute for Assembly Nos. 1447 & 1426 (June 1, 1992). The purpose of the enactment was two-fold: "to deter younger drivers from drinking and driving, and to establish an early detection and treatment program for young people . . . ." Anthony Impreveduto, et al., Statement to Assembly No. 1426 (May 14, 1992).

In 2003, the per se violation set forth in the statute was further reduced. In order to comply with federal highway funding requirements, the statutory standard of 0.10 percent BAC was reduced to 0.08 percent BAC. L. 2003, c. 314. At the same time, the amendment created two separate, graduated penalties relevant to prosecution for a first offense. As a result of this legislative enactment, first time offenders with a BAC level between 0.08 percent and 0.10 percent are subject to a three-month license suspension, but first time offenders with a BAC level of 0.10 percent or greater are subject to a seven to twelve-month license suspension. Ibid.

In addition, throughout this time, penalties for second and third offenders have become increasingly harsh. See, e.g., L. 1995, c. 286 (registration revocation); L. 1999, c. 417 (ignition interlock device installation); L. 2003, c. 315 (Michael's Law; imposing mandatory jail time or inpatient rehabilitation program time for a third or subsequent violation); L. 2004, c. 8 (increasing penalties for refusal to submit to breath test).

Although when considered together, these statutory enactments make plain the Legislature's view that drunk driving is not to be tolerated, the relationship between this increasingly restrictive legislative scheme and the new technology of the Alcotest, as compared to the breathalyzer, requires us to re-examine much of our earlier jurisprudence as part of our consideration of the issues raised in this appeal.

In virtually all of these statutes, the Legislature has utilized blood alcohol concentration, not breath alcohol concentration, as its standard measure.*fn7 Both the breathalyzer and the Alcotest, however, test breath samples and convert that analysis by mathematical calculations to an expression of the subject's presumed blood alcohol concentration. The principle question, then, is whether the Alcotest does so with sufficient accuracy and reliability to permit the results to be admitted in evidence in a DWI prosecution, or used as the basis for a per se violation of the statute and, therefore, a conviction.

III. How the Alcotest Works

The State seeks in this proceeding to establish that the Alcotest is scientifically reliable to measure defendants' blood alcohol levels. We turn, then, to a discussion of the physiological effects of alcohol on the body, how the Alcotest measures the concentration of alcohol in the breath and converts it to a measure of blood alcohol levels, and the State's proposed procedures to ensure that the Alcotest functions properly.

A. Scientific and Physiological Framework

Much of the scientific evidence in the record before the Court is undisputed. In fact, the basic physiological mechanisms on which all breath testing devices rely are not themselves controversial. We set these scientific propositions forth here, however, to provide the basis for our analysis of the scientific matters that are in dispute.

1. Alcohol and Blood*fn8

Alcohol is ordinarily ingested orally and enters the stomach where it is absorbed through the stomach's walls and intestines and is thereafter carried by the blood through the liver to the heart. The heart pumps the blood and, along with it, the alcohol, through the body, including carrying it to the brain and the lungs. Alcohol exerts its effects on an individual when the blood containing the alcohol reaches the brain.

Absorption begins immediately once a person starts drinking. The rate of absorption varies greatly from one person to the next and can even vary in the same person at different times. It depends on a wide variety of factors including general health, recent food consumption, physical makeup, amount of alcohol consumed, weight, and gender.

Elimination of alcohol also starts as soon as a person begins to drink. Alcohol is eliminated through excretion and metabolization, which occur when alcohol passes through the liver and is broken down by enzymes and dehydrogenates. When a person's body is absorbing alcohol faster than he or she is eliminating it, the concentration of alcohol in the blood will continue to rise. This period of time is ordinarily referred to as the absorptive phase. The concentration will reach its peak, and it will achieve a plateau, at the time when elimination and absorption are occurring at about the same rate.

When the person stops ingesting alcohol, or slows down ingestion to the point where the body is eliminating alcohol more quickly than absorbing it, the body enters what has generally been referred to as the post-absorptive phase. During this period of time, the concentration of alcohol in the blood decreases.

2. Alcohol and Breath

The reported concentration of alcohol in any particular person varies depending upon the source of the test sample. An understanding of the relationship of these potential test sample sources to BAC is important to our analysis. Alcohol passes into the lungs, through the walls of the air sacs, called alveoli. As it does so, it mixes with the air that the person has inhaled. When the person exhales, alcohol passes out of the body as part of the breath.

An individual's breathing pattern can influence the amount of alcohol that appears in any particular breath. In addition, the amount of alcohol in the breath sample represented by a single act of exhalation will vary from the beginning to the end. This is because the breath actually comes from different parts of the body, from the mouth to the deepest part of the lungs. Except for the possible interference that would occur if the test subject had ingested alcohol so recently that residual mouth alcohol were captured, the first part of the breath comes from the mouth and throat where there is little contact with the alcohol passing through the alveoli. However, as the person continues to exhale, the expelled air comes from deeper in the respiratory system, where it contains alcohol that more closely represents the amount passing through the lungs from the circulating blood.

3. Differences Between Blood and Breath Tests

Our statute establishes the violation in terms of blood, and not breath alcohol concentration. Although testing an individual's blood would presumably provide more direct evidence of that person's BAC, there are obvious practical and logistical problems associated with attempting to collect blood samples from suspected drunk drivers routinely.

As a result, although because of our statute New Jersey is considered to be a "blood state," we have long permitted BAC to be established through breath testing, in which breath samples are tested and converted to determine blood alcohol levels.

Breath testing therefore uses an indirect measure of BAC by calculating the alcohol concentration in the breath (breath alcohol concentration, or BrAC) and extrapolating to derive the BAC using a blood/breath ratio. Breath testing has become the preferred method for field testing because it can be performed easily, is highly automated, does not require scientific skill, and produces an immediate result.

B. Operation of the Alcotest

In light of the fact that breath testing always relies on the extrapolation of BAC through testing of breath, the precision with which any device evaluates BAC through this method is critical to our consideration of the admissibility of the device's results. We turn then to a description of the manner in which the Alcotest operates.

The Alcotest, which is currently in use in seventeen of our twenty-one counties,*fn9 as well as in other states, including Alabama and parts of New York, is a device that purports to accurately measure the concentration of alcohol from a human subject through breath testing. The Alcotest is an embedded system, meaning that it is a device with a specific purpose, and it relies on pre-loaded software that the manufacturer refers to as firmware.

The Alcotest uses both infrared (IR) technology and electric chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration. The device therefore produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading.

Although the precise mechanism by which these tests are accomplished is not relevant to the issues before us, the IR chamber, also called a cuvette, captures the breath sample and uses infrared energy to calculate absorption of the energy by the alcohol concentrated in the chamber. IR technology has been available since the 1970's or early 1980's and scientists have concluded that it is reliable. See, e.g., Foley, supra, 370 N.J. Super. at 350.

The EC, or fuel cell technology, uses a catalyst to absorb alcohol and provide a second measurement*fn10 of breath alcohol concentration from a small sample captured from the cuvette. In the EC chamber, voltage is applied to cause the catalytic reaction, which causes any alcohol that is present to oxidize. As that occurs, the oxidation process creates electricity, which is then measured to determine the amount of alcohol interacting with the fuel cell.

C. Test Administration and the Alcohol Influence Report

The Alcotest reports the IR and EC readings on a printout from the machine, referred to as the Alcohol Influence Report (AIR).*fn11 One of the claimed advantages of the Alcotest, as compared to the breathalyzer, is that it is not operator-dependent, but performs its analysis in accordance with a sequence through a computerized program that gives visual prompts to the operator. We turn, then, to a description of the manner in which the device operates in practice in performing these functions.

The actual administration of the test is performed by one of the more than 5000 certified Alcotest operators in New Jersey. When a person has been arrested, based on probable cause that the person has been driving while intoxicated, he or she is transported to the police station to provide a sample for the Alcotest. The Alcotest, consisting of a keyboard, an external printer, and the testing device itself, is positioned on a table near where the test subject is seated.

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

The Alcotest that is the focus of this matter utilizes software developed in collaboration with the New Jersey State Police and known as New Jersey Firmware version 3.11.*fn12 This software prompts the operator through a specific testing sequence on each arrestee. Essentially, the process begins when the operator has typed identifying information into the machine through a series of questions and prompts. The device then starts and automatically samples the room air to determine if there are chemical interferents in the room. This is known as a blank air test. Assuming that there are none, the machine then uses its attached wet bath simulator to heat a solution and produce a vapor sample from a control test solution*fn13 with a known alcohol concentration of 0.10, which is then measured using IR and EC technology. In order to be valid, the control test, in accordance with currently-programmed firmware, must produce results between 0.095 and 0.105. If the results do not identify the known sample within the defined parameters, the device is programmed so that the test cannot proceed. If the machine is working properly as demonstrated by the control test, then the instrument performs a second blank air test, again using room air to purge the test sample out of the chamber.

Assuming that the results of the control test are within the established parameters, the instrument prompts the operator through a message on the LED screen to collect a breath sample. The operator then attaches a new, disposable mouthpiece and removes cell phones and portable electronic devices from the testing area. The operator is required to read the following instruction to the test subject: "I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?" The arrestee then provides the first breath sample, which is measured in the IR and EC chambers.

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.

If the measurements for the first breath test are out of the accepted range of tolerance with the measurements for the second breath test, the machine prompts the operator to conduct a third breath test. Depending on the relationship among the three tests, the results are reported. The instrument then performs a second control test with the known solution from the simulator. Finally, the air is purged again and a final blank test is performed.

The device gives the operator three minutes to collect each sample. If that time expires without a sample, the device will present the operator with three options. The options are to terminate the test, report that the person refused the test, or continue with the test. If the officer opts to continue the test, the device will purge itself and then prompt the operator to collect another sample. The operator has a maximum of eleven attempts to collect two breath samples. After the eleventh failed test, the only two options permitted by the device are to terminate testing or report refusal.*fn14

As currently configured by New Jersey Firmware version 3.11, the software now being utilized, the device will accept a sample only if it meets certain minimum criteria that have been devised by the State.*fn15 Once the subject has provided an acceptable breath sample, the machine prompts the operator, through a system of lights on the LED screen and an audible beep, to tell the subject that he or she may stop. If any of these minimum test criteria has not been met, the machine will generate an error message and a report of how much air was submitted. The machine then offers the operator the option of giving the person another attempt or asserting refusal.

The results of the test sequence are printed out from the device in a sequentially numbered document referred to as an AIR. The AIR contains the test subject's identifying information, date, time, and test results for each stage of the procedure. Each AIR includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers. The operator must retain a copy of the AIR and give a copy to the arrestee.

In the event that the administration of the test resulted in errors because of, for example, insufficient breath volume or duration, the AIR will report those errors and will not attempt to calculate the BAC from an inadequate sample. Similarly, if the results of the control test do not fall within the acceptable tolerance, the device will produce an AIR that reports that the test could not be accomplished because of an invalid control test.

If the results are within the acceptable tolerance, the AIR shows the BAC values for each IR and EC reading for each of the tests to three decimal places. The AIR then reports the final BAC test result, which will be the lowest of the four acceptable readings, that is, readings within acceptable tolerance, which the device is programmed to truncate to two decimal places. Truncating, as opposed to rounding, involves simply reporting the first and second decimal places and dropping the third. For example, by truncating, a reading of 0.079 percent BAC would be reported as 0.07 and a reading of 0.089 percent BAC would be reported as 0.08. The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee.

By statute, the Legislature has designated the Attorney General to create and implement a breath testing program. See N.J.S.A. 39:4-50.3. The Attorney General, in turn, has vested responsibility for carrying out this command in the State Police. See N.J.A.C. 13:51-3.2. The Alcotest program was designed and is overseen by the Office of Forensic Sciences, a Division of the New Jersey State Police. The director of the forensic laboratory, Dr. Thomas Brettell, together with other forensic scientists in the Office assigned to the alcohol/drug testing unit, conducted tests on a variety of breath testing devices in an effort to select a successor to the breathalyzer.

After the Alcotest was chosen, Brettell assisted in the creation of the test criteria and provided other input into the original programming and the updates to the software that now is utilized in operating the device. His office has collaborated with municipalities to train Alcotest operators and to oversee certain aspects of the program. State Police Sergeant Kevin Flanagan is the field supervisor for five State Police coordinators, each of whom monitors a geographic area. The coordinators receive factory and classroom training from Draeger and they, in turn, train the operators. Coordinators do not perform any repairs, but they perform "black key" functions, such as calibration and software uploads, which are not done by other police personnel.

Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the IR and EC mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated. When coordinators undertake to perform this calibration, currently on an annual basis, and other routine inspections, they also download the device's test information onto two compact discs.*fn16 In accordance with current State Police protocol, one of these discs is kept in the local police department's evidence file and the other is held by the coordinator.*fn17

IV. Findings of the Special Master

Following hearings that spanned four months and included testimony from eleven fact and expert witnesses called by the State and two experts offered by defendants, the Special Master issued his first report on February 13, 2007. Although there are some aspects of that report and certain of the Special Master's recommendations that are not disputed by any of the parties, much of the report and many of the recommendations are challenged in this proceeding. As a result, we briefly summarize the report and its findings and recommendations before turning to our analysis of the matters in dispute.

A. Initial Report

In short, the Special Master concluded that the Alcotest in general is scientifically reliable, that it is superior to the breathalyzer because it relies less on operator influence, and that the AIR it generates, therefore, meets the test for admissibility in drunk driving prosecutions in general. Notwithstanding that conclusion, however, the Special Master offered a large number of suggestions for modifications both as to the future operation of the device and as to the use of the extant AIRs as evidence in pending prosecutions.

In his first report, the Special Master offered all of the following specific findings and recommendations.*fn18 He found that the use of the 2100 to 1 blood/breath ratio is scientifically reliable (Special Master's Finding 1(b)); he recommended that the AIR, solution change report and calibration documents be amended to include a listing of the temperature probe serial number and value (Special Master's Finding 2(a)); he recommended that the State be required to publish future firmware revisions (Special Master's Finding 2(b)); he recommended that the State continue to lock the firmware so that only Draeger and the coordinators would be able to make changes to that software (Special Master's Finding 2(c)); he found that the AIR, which reports all of the breath test results, rather than only the final reported lowest result, should be admissible in evidence (Special Master's Finding 2(d)); he recommended that the AIR be revised to identify the reason that a particular defendant did not achieve a reportable result (Special Master's Finding 2(e)); he found that Firmware version 3.11 is itself scientifically reliable and that future changes would not undermine its current reliability (Special Master's Finding 2(f)); he concluded that the Alcotest is not operator dependent, (Special Master's Finding 2(g)), and that it is therefore superior to the breathalyzer (Special Master's Finding 8); he recommended that all defendants have access to centrally collected data on their matters as well as to redacted versions of information relating to breath tests performed on other arrestees (Special Master's Finding 2(h)); he recommended that the calibration, certification and linearity reports be amended to include the serial number of the digital temperature measuring system utilized (Special Master's Finding 2(i)); he found that the State should be required to provide training for defense counsel and their experts similar to that provided to the certified operators (Special Master's Finding 2(j)); he found that the agreement between Draeger and defendants regarding future testing of firmware revisions should be enforced (Special Master's Finding 3); he concluded that the Alcotest is well shielded against radio frequency interference (RFI) (Special Master's Finding 4); he recommended that operators be required to testify about their qualifications and the testing procedures utilized in any proceeding relying on Alcotest results (Special Master's Finding 5(a)); he identified twelve foundational documents that the State must provide in discovery, which may be admitted into evidence without further formal proofs, and reasoned that they must be admitted into evidence in cases in which the defendant is not represented by counsel (Special Master's Finding 5(b)); he concluded that the technical criteria for a minimum breath sample utilized by the Alcotest are appropriate, with the exception of the minimum breath volume as it relates to women over sixty years of age (Special Master's Finding 6); he recommended that the State create and maintain a centralized database of the digitally recorded data (Special Master's Finding 7); he concluded that the State must commence use of the Draeger breath temperature sensor and apply a mathematical formula to account for the effect of temperature to pending reported results (Special Master's Finding 9); and he recommended that the State must reduce the acceptable tolerance for breath results to a total range of ten percent in place of the currently utilized calculation of a range of plus or minus ten percent for future use of the device (Special Master's Finding 10).

B. Draeger's Role in the Proceedings

During the first oral argument before this Court following the Special Master's release of his report and recommendations, defendants argued that the entire proceedings were tainted by the manner in which defendants were required to proceed. They argued that because Draeger had refused to make its source code available for their inspection and for analysis by their experts, the Court could have no confidence in the reliability or accuracy of the device from a scientific perspective. In short, they argued that the manufacturer's intransigence forced the Special Master and, by extension, this Court, to rely on "black box" testing,*fn19 when only a complete and thorough analysis of the source code used to operate the device would suffice for constitutional purposes.

Indeed, the refusal of Draeger to intervene precluded the Special Master from permitting any testing of the manner in which the device operates, and required him to rely on tests that at best could only demonstrate that the machine reliably appeared to be able to identify correctly, or at least acceptably within the established parameters, the alcohol concentration of a known test sample. There is some logic to that method of proceeding. If a breath testing device can, reliably and consistently over time, correctly analyze a sample of known alcohol concentration, one might argue that it matters little how the device is able to do so. Notwithstanding the rather considerable force of that logic, we were persuaded that, in light of the constitutional dimension of the issues before us, Draeger's eventual election to intervene in this matter afforded us the opportunity to permit defendants to engage in the technical analysis of the source code that they had asserted was so necessary to the adequate protection of their rights.

C. Source Code Remand

Following our order remanding the matter for further analysis of the issues by means of the source code evaluation by the two independent testing entities, see Chun, supra, 191 N.J. at 309-10, the Special Master entertained further testimony on the issues. His supplemental report, dated November 8, 2007, included several additional recommendations, but continued to adhere to his initial conclusion that the device is scientifically reliable for use in pending and, with modifications, future proceedings.

In summary, the Special Master found that a mathematical algorithm that corrects for fuel cell drift did not undermine the reliability of the results, but he recommended that the machines be recalibrated every six months rather than annually to afford more regular opportunities to replace aging fuel cells; he found that a specific buffer overflow error should be corrected in future versions of the software and recommended that in all pending matters in which a third test was performed, that the AIR be excluded or recalculated according to a corrective formula, described in the record as the Shaffer formula; he recommended that catastrophic error detection be reenabled to stop and restart the machine in the event that such an error occurs; he recommended that the AIR should be inadmissible in any case in which there is data missing from it; he revised his initial finding 5(b) to recommend that the twelve foundational documents be produced in discovery and be admissible in all cases, without regard to whether a particular defendant is represented by counsel or not; he suggested that notice of any and all proposed software revisions be provided to the NJSBA; he recommended generally that defendants' expert's suggestions for reorganizing and simplifying the source code be considered for implementation, but declined to mandate adherence to any specific design standard for future ...


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