In what can only be seen as an increased hurdle for those charged with driving while intoxicated, the New Jersey Appellate Division held the Control Company temperature probe is scientifically reliable. On December 20, 2011 the court released it opinion in State v. Holland.
In its landmark driving while intoxicated decision, State v. Chun, the New Jersey Supreme Court ruled that the Alcotest 7110 was an acceptable instrument to obtain the blood alcohol concentration (BAC) of a defendant charged with driving while intoxicated (DWI). The New Jersey Supreme Court required that the State provide 12 foundational documents before the Alcotest BAC reading could be used to convict a defendant of driving while intoxicated. The twelve foundational documents are:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator’s credentials of the officer who performed that change;
(2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report;
(3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator;
(4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe;
(5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered));
(6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests);
(7) Certificate of Analysis 0.10 Percent Solution (used in Calibration Control);
(8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration;
(10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08 and 0.16 percent solutions when conducting the Calibration-Linearity tests;
(11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and
12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability.
The Ertco-Hart digital temperature probe is a device that was previously used by New Jersey State Police Alcotest coordinators during calibration checks to insure that the temperature of the various simulator solutions is 34.0 degrees Celsius. This is essential for Alcotest calibration process.
New Jersey State Police Alcotest coordinators began using a digital thermometer manufactured by Control Company, Inc. instead of the Ertco-Hart digital thermometer. In the Holland decision the court held “We are satisfied that sufficient credible evidence supports the Law Division’s finding that the two digital thermometers are substantially equivalent in all respects necessary to the performance of their singular functions.”
Unless the New Jersey Supreme court rules otherwise, those who are charged with N.J.S. 39:4-50 (Driving While Intoxicated) will no longer be able to challenge the admissibility of the Alcotest blood alcohol reading based upon the use of an improper temperature probe.
Despite this ruling there are many defenses available to those who are charged with Driving While Intoxicated “DWI” in New Jersey. If you are interested in how our legal defense team can help defend your rights contact us or call (856) 546-1350.