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SETON HALL LAW RELEASES LATEST REPORT, “THE UNTESTABLE DRUNK DRIVING TEST”

Seton Hall University School of Law’s Center for Policy & Research, Forensic Division, has issued a report, New Jersey’s Untestable Drunk Driving Test, which calls into question the evidentiary value of New Jersey’s current and only breathalyzer test, the Alcotest 7110 MK III-C.

Recently adopted by New Jersey as its exclusive breathalyzer test, the contract governing the use of the Alcotest forbids the State from providing its breathalyzers for independent scientific testing. In addition, the manufacturer of the Alcotest, Draeger AG & Co., prohibits any entity other than the State to purchase the Alcotest, even for independent scientific testing. This combination of prohibitions immunizes the Alcotest from challenge, and effectively prevents scientists and defense counsel from determining how the machine works— and how it doesn’t.

The Center found that although the Alcotest was approved for use by the New Jersey Supreme Court after a proceeding and a report from a Special Master, serious scientific and legal questions remain. The Forensic Research Group’s findings reveal for the first time that there are a number of reasons to doubt the machine’s accuracy and reliability. Professor Mark Denbeaux, Director of the Center for Policy & Research, stated, “The Special Master’s investigation reveals concerns about the machine and expressly conditioned any finding of “reliability” upon ongoing independent examination of the machine. It turns out that there has been none; we have been prohibited from performing one and so has Professor Snow.”

Nationally and internationally recognized analytical chemist, Director of the Center for Academic Industry Partnership at Seton Hall University, and report co-author, Professor Nicholas H. Snow, was denied access to the Alcotest by its manufacturer, although Professor Snow was clear in his intention to utilize the machine for purely academic purposes. Professor Snow remarked, “Science requires independent testing, and I would expect the law—especially the criminal law— to require no less. Our limited review showed a number of serious anomalies, as did the Special Master’s findings. Not the least of which is the manufacturer’s claim that the machine employs two independent measures of breath alcohol. There is really one measure.”

Seton Hall University Professor of Mathematics and report co-author Nathan Kahl further noted that serious questions remained regarding Alcotest’s software or source code. “The code tells the device what to do, governing every step of the machine’s function, and Draeger let neither the State nor the defense examine it fully. Problems with the source code motivated the Special Master to insist that Draeger ‘sell to New Jersey attorneys and experts Alcotest 7110 MK III-C units’ for scientific examination. That’s not being done.

Professor Denbeaux concluded, "The manufacturer of the only device permitted to be used to determine drunk driving in New Jersey refuses to allow anyone, including internationally recognized scientists, to test its device. And the State of New Jersey approves. People are sent to jail on the basis of this machine. It needs to be held to the standards of science. Anything else is sheer prejudice and unforgivable.”

The Report, “The Untestable Drunk Driving Test,” may be found at http://law.shu.edu/ForensicReports

Seton Hall University School of Law, New Jersey’s only private law school, and a leading law school in the New York metropolitan area, is dedicated to preparing students for the practice of law through excellence in scholarship and teaching, with a strong focus on clinical education. The Center for Policy and Research enables students to gain practical experience while engaging in research and analysis that promotes respect for the rights of individuals worldwide. The students examine primary sources pertaining to national security law and practices of the U.S. government, as well as the reliability of forensic evidence for criminal investigations and prosecution. Seton Hall Law is located in Newark, NJ and offers both day and evening degree programs. For more information, visit http://law.shu.edu.