Alcotest Reliable Subject to Numerous Procedural Safeguards – State v. Chun

This morning, the New Jersey Supreme Court released its long-awaited opinion in the Alcotest case captioned State v. Chun. In a 131-page, unanimous opinion written by Justice Hoens, the Court ruled that the Alcotest 7110 is a scientifically reliable instrument for determining the blood-alcohol concentration of living human beings. Further, subject to a large number of procedural safeguards, the Alcotest can be utilized in the prosecution of intoxicated operators of motor vehicles in New Jersey courts. The specific technical procedures and safeguards to be utilized in Alcotest cases are set forth at the conclusion of the opinion in a comprehensive Court Order.

Among the many findings and conclusions of the Supreme Court are the following:

1. While a minimum breath sample of 1.5 liters of air is appropriate for most subjects, women over 60 years of age are only required to provide a sample of 1.2 liters of air.

2. There will be no requirement that the state install breath-temperature sensors on the Alcotest instruments now in use.

3. Admissibility of Alcotest results are subject to the same standards that were mandated in Romano v. Kimmelman, 96 N.J. 66 (1983); that is two tests that are within 0.01% of each other. The instrument will have to be re-programmed to provide for this standard. Until that time, the Court provides a form in an appendix to the opinion that can be used to calculate whether the breath-test results are within the required tolerance.

4. As recommended by Judge King in his factual findings, the Alcotest instruments in use should be re-examined and recertified by the State twice per year.

5. The alcohol influence report is admissible in evidence and is non-testimonial within the meaning of Crawford v. Washington.

6. There are twelve documents that must be provided by the State in discovery in every Alcotest prosecution. The precise nature of these documents and their contents are listed in the opinion and set forth in the Court’s order.

7. The manufacturer of the Alcotest must provide training at a reasonable price to the New Jersey defense bar on the operation of the Alcotest.

8. The manufacturer must make public any future revisions to the software that runs the Alcotest through the State Bar Assoc.

9. The Chun “stay order” from January 2006 is now vacated and pending cases are to be resolved in conformity with the Court’s order at the end of the case.

10. The State must establish an on-going Alcotest result database that will be available to the defense bar.

Download a copy of State v. Chun and the relate Order and Appendix.

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