Judge's Ruling on unreliable Breath-Test Indicator could affect Atlantic County DWI Arrests

This week something very important in DWI law took place when Judge Max Baker overturned a driving under the influence conviction this week. Judge Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision, which covers the entire county, could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable.

Municipal prosecutors in Atlantic county will look to Prosecutor Ted Housel in determining what happens next. "I'm sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters," said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.

While Ertco-Hart is independently tested, Control tests its own equipment. "If find that that is a critical error," Baker said.

Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company's probe should not be an alternative."Not only do you have to meet these standards, it has to be verified independently," he said. Levow said it's likely another company's probe will eventually be approved. Levow said that wouldn't be a problem, as long as the same standards are applied."It looks like Judge Baker was trying to follow the Supreme Court's order," said John Menzel, who also argued the Supreme Court case.

Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said."Ertco-Hart was not litigated all that much because it's a fine piece of equipment," Menzel said. "The use of the Control Company was never examined, and there was never any consideration of that device (in the case)."

The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company's probe. Control did not return a request for comment.If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer's testimony."It doesn't necessarily negate all previous and future cases," she said. "But it does create some significant issues."

To learn more about Alcotest and New Jersey DWI laws, please visit the New Jersey DWI laws page a of our Criminal Law Website.