TRENTON - New Jersey can continue to use an alcohol breath test in drunken driving cases that has been the focus of years of litigation and at one point was suspended due to questions over its reliability, the state Supreme Court ruled Wednesday.
The court's order upholds the use of Alcotest, which replaced Breathalyzer machines more than a decade ago. Twenty people charged with DWI challenged the Alcotest in court and in 2006 succeeded in halting the use of the machine, but a 2008 Supreme Court decision called the test "generally scientifically reliable" and allowed it to be used, with some modifications.
In oral arguments before the court last week, defense lawyers claimed the state didn't comply with the 2008 order to revise the software on the machines and to create a searchable database of test results.
Alcotest "remains scientifically reliable, and generates results that are admissible" to prove a driving-under-the-influence- of-alcohol violation, Justice Jaynee LaVecchia wrote Wednesday. The challengers also didn't prove that the state "willfully refused to comply" with the court's 2008 order.
That order mandated several software modifications and required the state to create a database for access by defendants and attorneys. Defense lawyers claimed the database the state created was merely a collection of data that couldn't be easily searched, but the court on Wednesday ruled that the database was "fully in compliance" with the order.
"I'm stunned," said attorney Evan Levow, one of the lawyers who argued for the DWI defendants last week and urged the court to scrap the test until it can be proved more reliable. "It's disgraceful. The state emasculated the court by ignoring a 5-year-old order and the court ratified the state's actions. DWI should not be exempt from the constitution."
The state has a new version of Alcotest that it hasn't rolled out yet and would take a few years to sync up with the current database, the attorney general's office argued in court last week. Deputy Attorney General Robyn Mitchell also told the justices that New Jersey has already begun looking at a new breath test to use and that the maker of Alcotest has told them the current machines will have to be replaced by the end of 2016 anyway.
Another required modification from the 2008 order pertained to women over age 60, who frequently aren't capable of reaching the minimum breath volume of 1.5 liters. While the 2008 order deemed some of the results in those circumstances inadmissible, LaVecchia wrote in Wednesday's order that no woman over 60 can now be charged with refusing a breath test if Alcotest readings are the only evidence.
Levow said the defendants could next seek to have the case reconsidered by the state Supreme Court, file a lawsuit in federal court or petition the U.S. Supreme Court to hear the case