Judge King’s Supplemental Alcotest Report Released

Earlier today, the New Jersey Supreme Court released the latest supplemental report prepared by Special Master Michael Patrick King, P.J.A.D. (ret.). Judge King’s report followed 10 days of hearings and two days of oral argument. The hearings were conducted at the order of the New Jersey Supreme Court so as to permit the defendants in the landmark DWI case, State v. Chun, to challenge the reliability of the software that runs the Alcotest 7110 breath-testing instrument. Among Judge King’s findings and recommendations are the following:

1. The Alcotest 7110 is scientifically reliable as a breath testing instrument as to both hardware and software, subject to certain conditions;
2. Alcotest 7110 instruments in use should be subject to re-certification procedures every six months instead of yearly, as is now the practice;
3. As a result of certain mistakes in the software, evidence from a third breath test should not be utilized until the errors have been corrected;
4. An illegal operations trap in the software should be programmed to be activated;
5. If any of the categories on the Alcohol Influence Report are incomplete in any respect or missing, no portion of the report may be used in evidence. In practice this will mean that evidence of a blood alcohol level of .08% or greater would not be admissible at trial in those case where the report is incomplete or missing data;
6. Foundational documents should be provided to the defense as discovery in all cases, regardless of whether the defendant is being represented by an attorney;
7. Written notice of any future software changes should be forwarded to Jeffrey E. Gold, Esq., counsel for amicus the New Jersey State Bar Association.

The Supreme Court has invited briefs from the parties and will hold oral argument at 10:00 am on January 7, 2008.

Download a copy of Judge King’s supplementary report.

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