Failure by State Police to create and maintain a centralized
statewide database not a violation of the Supreme Court Chun Order.
State v Chun 215 NJ 489 (2013)
The
Supreme Court on March 17, 2008 issued it’s unanimous opinion addressing the
challenges raised by defendants to the scientific reliability of the Alcotest
7110 MKIII-C (the Alcotest).
The
defendant drivers moved for an Order in Aid of Litigants’ Rights, see R.
1:10-3, contending that the State has failed to comply with this Court’s March
17, 2008, Order, principally by failing to create and maintain a centralized
statewide database, and asserting more specifically that the database lacks
integrity because it differs from the manner in which data was previously
stored on and available on CD-ROM, is incomplete as to certain types of files
and calibration cycles, is presented in a format different from the one noted
in the report of the Special Master, and is subject to the third-party software
developer’s fee,
The
defendants requested that the NJ Supreme Court deem the State to have violated
the March 17, 2008, Order and that The Supreme Court therefore direct the State
to redesign the database to comply with defendants’ understanding of the
meaning and intent of this Court’s March 17, 2008, Order, and that the Supreme
Court further direct the State to ensure the integrity of the data in the
database and order other relief.
The
Attorney General’s office responded to the factual assertions concerning the
integrity and operation of the centralized statewide database raised by
defendants through the affidavits of Howard J. Baum, Ph.D., Director of the
Office of Forensic Sciences (OFS), a Division of the New Jersey State Police,
and of Ali M. Alaouie, Ph.D., an OFS research scientist charged with oversight
and monitoring of Alcotest data downloads and database integrity.
The
Attorney General’s office moved for it’s own Order in Aid of Litigant’s Rights
seeking to modify the Court’s March 17, 2008, Order and to authorize the State
to continue to utilize the Alcotest with Firmware version 3.11, which was
evaluated during the proceedings that led to The Supreme Court’s March 17,
2008, Opinion and Order.
The
Attorney General’s office requested that the State be relieved of further
compliance with Paragraph 2 of this Court’s Order of March 17, 2008, based on
the State’s representation that Firmware 3.13, which is the Alcotest software
that was created in conjunction with Draeger Safety Diagnostics, Inc.
(Draeger), the manufacturer and supplier of the Alcotest, in compliance with
Paragraph 2 of The Supreme Court’s March 17, 2008, Order, would effectively
render the previously created database unusable and unworkable.
The
Attorney General’s office represented to the Court that Draeger has advised
that the Alcotest will no longer be serviceable after 2016 and that the State
is now in the process of evaluating alternate breath testing devices for
implementation.
The
defendant also moved for an Order in Aid of Litigants’ Rights, see R. 1:10-3,
contending that, absent compliance with Paragraph 2 of the Supreme Court’s
March 17, 2008, Order, which directed that the specified software changes be
made “forthwith”, the Alcotest is unsuitable for use in New Jersey, and should
not be used.
The
defendants challenged the reliability of the Alcotest 7110 utilizing Firmware
version 3.11 both in general and in particular through reiteration of and
expansion upon arguments raised during the proceedings that led to this Court’s
March 17, 2008, Opinion, including defendant’s challenge to the Firmware’s
utilization of the fuel cell drift algorithm and the absence of implementation
of software to account for the demonstrated physiological differences that
impede the ability of women over the age of sixty to provide a sufficient
breath sample and that therefore raised the specter of inappropriate charges
being brought against such women for refusal, see N.J.S.A. 39:4-50.4.
The
defendants requested that the Supreme Court declare that the Alcotest is not
sufficiently scientifically reliable to be utilized in any prosecution for
driving under the influence of alcohol. The defendants were denied most of the
relief they sought.
The
Supreme Court concluded that the centralized statewide database was fully in
compliance with this Court’s Order of March 17, 2008, in all respects.
The Supreme Court concluded that
defendants have failed to demonstrate that the State has “willfully refused” to
comply with The Supreme Court’s March 17, 2008, Order, see Pasqua v. Council,
186 N.J. 127, 141 n.2 (2006), and that the State has demonstrated that in spite
of its best efforts to do so, it does not have the ability to comply with
Paragraph 2 of the Order, see Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J.366, 392 (1995), because of the unanticipated but
unavoidable adverse impact of compliance that the implementation of Firmware
version 3.13 would have upon the continued viability of the existing database.
The Supreme
Court concluded that the Alcotest 7110, utilizing Firmware version 3.11,
remains scientifically reliable, and generates results that are admissible to
prove a per se violation of the statutory prohibitions on driving while under
the influence of alcohol, when those results are utilized in strict compliance
with Paragraphs 1, 3, 4, 5, 6 and the associated worksheets attached to this
Court’s March 17, 2008, Order.
The Supreme Court concluded that
although Paragraph 1(A)(3) of the Supreme Court’s March 17, 2008, Order
directed that certain AIR results be inadmissible in prosecutions of women over
the age of sixty for violations of the refusal statute, see N.J.S.A.
39:4-50.4a, a further remedy is now necessary to protect the equal protection rights
of women falling into that category.
The Supreme
Court therefore held:
1. IT IS ORDERED that defendants’ motions
including to stop use of Alcotest was denied; and
2. IT IS ORDERED that the State’s motion,
M-1539, for relief from further compliance with Paragraph 2 of The Supreme
Court’s March 17, 2008, Order is granted; and
3. IT IS ORDERED that the State’s motion,
M-1539, for authorization to continue to utilize the Alcotest 7110 with
Firmware version 3.11, and to deem the results admissible in accordance with
The Supreme Court’s March 17, 2008, Order and associated worksheets, with the
exception of the provisions of Paragraph 2 thereof, is granted; and
4. IT IS ORDERED that, in addition to the
directive in Paragraph 1(A)(3) of The Supreme Court’s March 17, 2008, Order,
concerning admissibility of Alcotest results for women over the age of 60 in
prosecutions for refusal, see N.J.S.A. 39:4-50.4a, if the only evidence of
refusal is the inadmissible AIR, such women may not be charged with, prosecuted
for, or convicted of that offense.