The Untestable Drunk Driving Test

37 Pages Posted: 29 Apr 2019

See all articles by Mark Denbeaux

Mark Denbeaux

Seton Hall University, School of Law

Nathan W. Kahl

Seton Hall University

Nicholas Snow

Seton Hall University

Richard Eschle

Seton Hall Law School - Center for Policy & Research

Marissa Litwin

Seton Hall University - Center for Policy & Research

Keith Oliver

Seton Hall University - Center for Policy & Research

Robert DiPisa

Seton Hall University - Center for Policy & Research

Date Written: March 25, 2019

Abstract

The intersection of law and science has a long and tortuous history, but a new chapter is being written in New Jersey with the state’s use of the Alcotest 7110 MK III-C for prosecuting drunk driving traffic offenses. As the name implies, this is a device which purports to test levels of intoxication by measuring breath alcohol levels in order to determine blood alcohol concentration. The Alcotest is a proprietary device purchased by the State of New Jersey for use by law enforcement under a contract with the manufacturer that prohibits the State from subjecting the device to “reverse engineering” testing. Although the Alcotest was approved for use by the New Jersey Supreme Court after a proceeding that explored its reliability, serious scientific and legal questions remain, largely because of the manufacturer’s refusal to sell a device for independent testing or permit the State to provide its devices for such assessment. Given this limitation, any conclusions about the Alcotest are necessarily tentative. Nevertheless, as detailed in this Report, there are serious reasons to doubt the accuracy and reliability of the test, especially the manufacturer’s claims of the superiority of its product because, unlike other devices, the Alcotest employs two independent measures of breath alcohol. In reality, the two measures are highly interdependent. In addition, there are other reasons to question the validity of the test as an accurate measure of intoxication.

The Alcotest machine and the process by which it has been adopted raise the following novel issues:

• In New Jersey, the Alcotest device has been adopted to the exclusion of all other devices. The Alcotest is now the only breath alcohol analyzer of record in the state.
• The Alcotest device is now ‘immunized’ from challenge and from outside testing, and doubly so:
• By New Jersey’s contract with Draeger, which allows Draeger to prohibit any entity other than the state from purchasing the Alcotest, and
• By the decision in State v. Chun, which acknowledges Draeger’s intellectual property rights to the source code of the Alcotest, thus preventing any outside entity from determining how the machine works.
• Measurement devices like the Alcotest are inherently inexact, not because of oversights or poor design but because any measurement carries with it measurement errors. Sources of error for previous machines were reasonably well investigated, documented, and understood. The Alcotest, while new and theoretically better than previous designs, is also subject to measurement error, but because of the Alcotest’s immunity to challenge, those sources of error are currently not subject to investigation by scientists, let alone litigants.

The point — that a consequential and relatively ubiquitous scientific instrument is unavailable for scientific purposes, under any circumstances — is more than a theoretical issue.

The hallmark of the scientific process is testing and peer review. As matters now stand, it is impossible to test and review the Alcotest in the courts, and Dr. Snow’s experiences show that it is further exempted from testing and review in the scientific community.

This report investigates the process by which the Alcotest was adopted; the extent to which it is immune from testing; the reason that such immunization is dangerous in light of the science of breathalyzers in general and the Alcotest in particular; and, finally, the legal consequences of admission of evidence that cannot be tested either in general or in this particular case. Because science lies at the core of the legal issues surrounding the use of the Alcotest, Part Two of this report describes the science behind blood alcohol tests in general and the Alcotest in particular. Part Three considers the circumstances and the Special Master’s decision of State v. Chun. Finally, the report’s conclusion addresses the legal consequences of the aforementioned testing prohibitions upon the use of the device in litigation.

Keywords: Drunk Driving, Breathalyzers, State of New Jersey, Alcotest, Independent Testing, Breath Alcohol, Measure of Intoxication, Dui, Sobriety Test, Blood Alcohol Concentration, BAC, State v. Chun

Suggested Citation

Denbeaux, Mark and Kahl, Nathan W. and SNOW, NICHOLAS and Eschle, Richard and Litwin, Marissa and Oliver, Keith and DiPisa, Robert, The Untestable Drunk Driving Test (March 25, 2019). Available at SSRN: https://ssrn.com/abstract=3360029 or http://dx.doi.org/10.2139/ssrn.3360029

Mark Denbeaux (Contact Author)

Seton Hall University, School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Nathan W. Kahl

Seton Hall University ( email )

400 S Orange Avenue
South Orange, NJ 07079
United States
9732752065 (Phone)

NICHOLAS SNOW

Seton Hall University

400 S Orange Avenue
South Orange, NJ 07079
United States

Richard Eschle

Seton Hall Law School - Center for Policy & Research ( email )

One Newark Center
Newark, NJ 07102
United States

Marissa Litwin

Seton Hall University - Center for Policy & Research

One Newark Center
Newark, NJ 07102
United States

Keith Oliver

Seton Hall University - Center for Policy & Research ( email )

One Newark Center
Newark, NJ 07102
United States

Robert DiPisa

Seton Hall University - Center for Policy & Research ( email )

One Newark Center
Newark, NJ 07102
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
18
Abstract Views
98
PlumX Metrics