New Jersey DWI Lawyers Demand Discontinuation of Alcotest Machine in Drunken Driving Cases

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New Jersey DWI Lawyer Evan Levow of Levow & Associates, P.A., argues that New Jersey should declare the Alcotest drunken-driving machine unsuitable for use in New Jersey, stating that the machine is in violation of a New Jersey Supreme Court order to revise its software and create an error-free and accurate database of results.

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The state of New Jersey has admitted that it plans to discontinue the use of the Alcotest drunken-driving detector by 2016. Two DWI defense lawyers want it to be retired immediately. Evan Levow and Matthew Reisig, argue that the Alcotest database is faulty and incomplete and that nine court-ordered software fixes were not made, as reported in the New Jersey Law Journal(6.18.13). Full article appeared in the New Jersey Law Journal in today's print edition, June 24.

Database and software revisions were mandated by the Supreme Court in State v. Chun, 194 N.J. 54 (2008). Chun held that Alcotest readings were generally scientifically reliable, based on certain conditioned changes to the machine software.

Levow and Reisig filed papers on June 14, 2013, (State v. Chun, Docket No. 72,341) asking the New Jersey Supreme Court to declare the device unsuitable because it can no longer be considered scientifically reliable without the court ordered software changes, as well as the corrupted data website.

Levow and Resig filed a motion to compel the State to reformat the data website and comply with the five year old order that requires the changes from the New Jersey Supreme Court. The Court ordered the State to make the changes “forthwith”, but the State failed to comply with almost all of the changes that were ordered. The Attorney General's Office asked for relief from making the prescribed revisions, saying the State planned to phase out the machine in three years and wanted to devote its resources to finding a new device.

Levow and Reisig disclosed in their motion that the State has failed to fix or advise of an error in the machine known as “fuel cell drift”. This aging of the fuel cell, one of the alcohol measuring devices in the machine, causes incorrect calculations that were not reported in the results, instead looking like a normal and acceptable test. The State was ordered in Chun to disclose when this algorithm is implemented in any machine operations. For more than five years, the State has failed to disclose this error.

Levow and Reisig also point out in the motion that the State failed to reduce the minimum breath sample for women over sixty, due to their smaller lung capacities, as ordered by the Supreme Court in Chun.

Levow, a DWI attorney in New Jersey law firm Levow & Associates, and Reisig, a solo practitioner in Freehold, said the state's position constitutes a denial of Due Process, and that the results from the machine testing are unreliable without the Court ordered changes to the software. As a result, they argue that the machine must be declared unfit for use in New Jersey. DWI cases can still be prosecuted without a breath testing machine, based on physical observations made by the arresting officer.

The database requirement gave drivers charged with a DWI the opportunity to review the machine operations to assess whether the machine was running as expected at the time of the testing. Because the data is incomplete and corrupt on the website, Levow and Reisig argue that it is now impossible to assess whether the machines can be accurately assessed to determine whether they are operating in a reliable manner.

The defense lawyers' papers also criticized the state's decision to charge fees for use of the Alcotest database in violation of a Court Rule that requires electronic discovery to be provided free of charge.

Lawyers at Levow & Associates have been trained to analyze all the results and evidence in every DWI case and use that information to help defend clients. Contact Levow & Associates for a free consultation regarding your matter.

About Evan Levow and Levow & Associates, P.A.

New Jersey DWI Lawyer Evan Levow is the managing partner of Levow & Associates and a nationally recognized DWI attorney. Levow represented the lead defendant in the most important DWI case in New Jersey history, State v. Chun. Mr. Levow was recognized by the National College for DUI Defense for the role he played in shaping DWI defense in NJ and nationwide.

Levow uses his unique knowledge of field sobriety testing and breath-testing machines to help defend his clients. He has lectured to other attorneys, judges and law enforcement throughout the country on theories of DWI defense and prosecution. Mr. Levow’s practice is 100% dedicated to DWI / DUI defense. He can be contacted at:

Evan M. Levow

Levow & Associates
Cherry Hill Plaza Suite 200
1415 Route 70 East
Cherry Hill, NJ 08034
Phone: 877-735-2288 | (856) 428-5055

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