PBT'S: In The News

After decades of use breath analizers continue to be a topic of controversy among the legal community. Attorney Michael Mermer has asked a judge to throw out breath test evidence against one of his clients becaue the police did not follow the rulres when they tested the calibration of the Intoxilyzer 5000. The rule states that a minimum of 10 minutes must pass between certain steps of the monthly calibration-verification process. Jay Zager, formerly in charge of the Broward Sheriff's Office breath-test unit and served on the FDLE's(Florida Department of Law Enforcement) Rules Committee, states,"''Those rules were put in place to protect the integrity of the results obtained by the Intoxilyzer.Violations of these rules certainly can make the results unreliable.'' Apparently, there are five tests to verify calibration so that mimics the human lung, one without alcohol then one with acetone, and three with different alcohol solutions. The acetone test is the one in question here because the mixture of acetone and water must have at least 10 minutes to heat up and combine. A necessity to help ensure the Intoxilyzer tests do not result in false positives.
NEWARK, N.J. (AP) - - Dozens of drunken driving cases are on hold as New Jersey judges address complaints from defense lawyers that the device replacing the Breathalyzer is not reliable.Cherry Hill lawyer Evan Levow is among those who say they've seen erroneous blood alcohol content readings in Alcotest cases. Levow won an order in Middlesex County to put Alcotest prosecutions on hold. The state has asked an appellate panel for permission to challenge the ruling.Trenton, N.J., December 14 Associated Press The New Jersey Supreme Court on Wednesday appointed a special master to conduct a hearing on the reliability of the machine that is replacing the Breathalyzer throughout New Jersey. The order also lifts the freeze on some of the hundreds of drunken driver prosecutions that were put on hold by judges after defense lawyers raised concerns about the new machine.... Meanwhile, hundreds of DWI suspects have their cases on hold. Alcotest evidence has not been allowed in Middlesex County since the fall, and in Morris and Union counties since Monday. A similar order was pending for Burlington County this week. The Supreme Court lifted the stay for Middlesex County cases, but made no mention of the other counties, perhaps because the court was not yet aware of the more recent actions....
EXCERPTS FROM DUIBLOG.COM :
The breath testing machine in question, the Alcotest 7110 Mark III-C, is manufactured by a German company, Draeger. The Alcotest 7110 supercedes the previous breathalyzer models, and is marketed as "undisputedly the most advanced Evidential Breath alcohol testing technology available today". As I (Attorney Lawrence Taylor) have posted in the past ("State of the Art" Breathalyzers: A History), the evolution of breath machines is one of manufacturers continuing to claim that their machines are "state of the art" and pretty much dead accurate and fail safe -- until their next models, which they then claim resolve all of the problems with the previous models.
My prediction(Mr.Taylor): The Supreme Court will lift the remaining (awkward) freezes, prosecutions will continue as before, time will pass, public confidence will resume and the new machine will be quietly approved -- despite the flaws brought out in lower court hearings. (Bear in mind that New Jersey is one of the few states in this nation that denies a DUI defendant the right to jury trial.) And Draeger will unveil a new, improved model that corrects the problems that got the 7110 thrown out. "State of the art".
http://www.mercurynews.com/mld/miamiherald/news/breaking_news/13496686.htm?source=rss&channel=miamiherald_breaking_news

http://abclocal.go.com/wpvi/story?section=local&id=3666364

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originally posted: 1/2/2006