New Jersey Supreme Court uphold the exclusion of over 20, 000 breath test after temperature probe not performed in the case of State v. Cassidy.  

The New Jersey Supreme Court decision is important for OUI lawyers in Massachusetts and throughout the country as the Court attributed great weigh to scientific standards of accuracy when deciding whether to permit the breath test to be offered into evidence.  The New Jersey Supreme Court upheld the decision of a Special Master who wrote a 200 page decision finding that the failure to use the temperature probe made New Jersey’s breath tests scientifically unreliable.

The problem was discovered when it was revealed that Marc Dennis a coordination in the Alcohol testing until did not use the temperature probe and falsified documents that he had done so.  The issue to come before the Court was whether the failure to conduct an independent temperature probe rendered the results scientifically unreliable.

In 2004, New Jersey created a calibration procedure to conduct its breath testing that was established by Dr. Thomas Brettell.  As part of this procedure, New Jersey established an independent check of breath temperature.

Why is Temperature Important in Breath Testing

Temperature is critical in breath testing because breath tests rely on the principles of Henry’s Law for its scientific accuracy.  Henry’s Law states that when a liquid that contains volatile substance such as alcohol makes contact with air in a closed container at a known temperature, a certain amount of the alcohol will escape into the air space above in the form of vapor.  The rate at which the alcohol vaporizes will depend on the concentration of alcohol in the liquid and the temperature. The higher the temperature, the more alcohol will escape to the vapor.  When there is a fixed temperature and concentration of alcohol, a state of equilibrium will result in which the amount of alcohol in the air and the liquid are static.  Henry’s Law affirms that in a closed system and at a given temperature, there is a fixed ratio between a volatile substance, such as alcohol, in a liquid and the same volatile substance in gas,

Breath Test Calibration Checks

When the breath test runs a calibration, it contains a simulator at known alcohol levels.  The breath test machine heats the cylinder to 34 degrees Celsius, the assumed temperature of human breath, and this should match the reading of the simulator solution.  If the breath test machine is not heat to 34 degrees Celsius, the Alcotest could overstate or understate the breath alcohol content.

The Alcotest breath test manufacturer by Draeger claims to check to see if the temperature is 34 degree Celsius.  However, New Jersey, required an independence temperature check measured to NIST standards that ensures an accurate temperature.  NIST is the National Institute of Standards and Technology that establishes specific standards for performing measurements.

This temperature check as part of the calibration is independent of any Alcotest device and enhances the accuracy of the breath test.  The State claimed that this independent check was extra and essentially unnecessary in the litigation.  The Special Master found the State’s position inconsistent with the position it took in other breath test litigation and not supported by the scientific witnesses in the case.

A simulator is a solution manufacturered by Draeger that resembles a mason jar that plugs into the machine and contains a known alcohol content.  The 7110 used in New Jersey used a wet bath simulator rather than a dry gas simulator that is used in Massachusetts on the Alcotest 9510.

The Special Master Found that the NIST traceable temperature check was vital to the accuracy of the breath test.  Without an independent check of the temperature, the scientifically reliability of the breath test was compromised.  The judge excluded over 20,000 breath tests as a result of its decision.

Implications for Massachusetts OUI Lawyers of the New Jersey Supreme Court Ruling

This decision may have an impact on the litigation in Massachusetts regarding the reliability of the breath test.  Recently, there were reports of rats and issues with harmful bacteria in certain breath tests machines in Massachusetts.  The Cassidy decision revels that the Court took the NIST standard of having a traceable temperature as a critical component to the scientifically reliability of the machine.  The New Jersey Supreme Court correctly required that the scientific process be complied with that was established in New Jersey calibration procedure.  Until the Massachusetts Office of Alcohol testing becomes accredited, it is not held to any outside standard of scientific reliability that the New Jersey Supreme Court deemed crucial.   Hopefully, this decision will result in Judge Brennan finding that breath test cannot come into evidence until the Office of Alcohol Testing becomes an accredited lab.

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