Evan Levow made headlines for his recent argument before the New Jersey Supreme Court to scrap the Alcotest breath testing machine.
In 2001, the Alcotest replaced the breathalyzer in New Jersey DWI cases.
Evan Levow and other counsel challenged the reliability of the Alcotest machine in 2008, in the landmark case before the New Jersey Supreme Court, State v Chun. At that time, the New Jersey Supreme Court ruled the machine “generally scientifically reliable”, but ordered the state to make 9 modifications to the machine’s software to offset its technical shortcomings.
State officials never made the court–ordered modifications, despite a 5 year old court order telling them to.
Evan Levow argued before the New Jersey Supreme Court on September 10, 2013, that the conditional reliability of the machine no longer remains. Levow questioned the validity of the state’s DWI convictions for this reason. “Alcotest is scientifically unreliable, because the state never made the changes.” Levow said. “Consequently the machine should no longer be used.”
In 2008, the court also ordered state officials to create a centralized, searchable state-wide database of Alcotest results that would be available to defendants and their attorneys. According to Levow, the database is not searchable and omits some test errors that could show machine malfunction. This is important information needed when defending a DWI arrest.
Mr. Levow also argued that since the current Alcotest machine has an algorithm that is not on a future version of the machine, this is a tacit admission that there is a problem with the current Alcotest machine.
Additionally, one of the 9 mandated software modifications pertained to women over the age of 60. This group is not capable of reaching the minimum 1.5 liters of breath volume. However, if they don’t blow 1.5 liters they can be charged with a refusal to blow. The 2008 ruling ordered the state to re-program the minimum to 1.2 liters for this group. “That hasn’t been done.” said Levow. “This means a woman who does not blow 1.5 liters can be unfairly charged with a refusal – a serious offense resulting in loss of license and other fines and surcharges.” Levow contended.
Evan Levow called for Alcotest to be retired and for the state to rely on observational evidence.
“Breath testing is trial by machine, “ Levow told the justices. “It’s imperative that the public has trust” in the technology being used.
N.J. needs to scrap its Alcotest devices, lawyers argue at state’s top court
The Star Ledger
September 10, 2013
New Jersey DWI Alcotest Breath Testing Challenged Before NJ Supreme Court
September 10, 2013