Saturday, August 4, 2012

New Jersey Draeger Protocol founding Lacking

September Term 2005
Docket No. 58,879







On remand from the Supreme Court of New Jersey: December 14, 2005

Findings and Conclusions Submitted to Supreme Court: February 13, 2007

Jessica S. Oppenheim, Assistant Attorney General, Christine A. Hoffman, Deputy Attorney General, Stephen H. Monson, Deputy Attorney General and John A. Dell'Aquilo, Jr., Deputy Attorney General, appeared on behalf of the State of New Jersey.

Samuel L. Sachs of the firm Sachs & Sachs appeared on behalf of Jeffrey R. Wood and James R. Hausler.

Matthew W. Reisig appeared on behalf of Christopher Salkowitz, Peter Lieberwirth, Raj Desai and Peter Piasecki.

John Menzel of the firm Moore & Menzel appeared on behalf of Anthony Anzano, David Whitman, David Walker, Hussain Nawaz and Jeffrey Ling.

Evan M. Levow of the firm Levow & Costello appeared on behalf of Jane H. Chun, Lara Slater, Elina Tirado, and Frederick Ogbutor.

Jonathan A. Kessous and Christopher G. Hewitt, co-counsel, of the firm Garces & Grabler appeared on behalf of Jairo Yataco and Angel Miralda.

Bartholomew Baffuto appeared on behalf of Daria L. DeCicco.

Arnold N. Fishman of the firm Fishman, Littlefield & Fishman appeared on behalf of amicus curiae New Jersey State Bar Association.

Jeffrey E. Gold of the firm Gold & Laine appeared on behalf of amicus curiae New Jersey State Bar Association.

Peter H. Lederman of the firm Lomurro Davison Eastman & Munoz appeared on behalf of amcius curiae Association of Criminal Defense Lawyers.



I. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . 4

II. STANDARD OF PROOF . . . . . . . . . . . . . . . . .14


1. CHEMISTRY AND PHYSIOLOGY . . . . . . . . . . . 19

2. HISTORY . . . . . . . . . . . . . . . . . . . 23

3. THE INSTRUMENT . . . . . . . . . . . . . . . . 33


1. HANSUELI RYSER . . . . . . . . . . . . . . . 47

2. THOMAS A. BRETTELL, Ph.D. . . . . . . . . . 73

3. SGT. KEVIN M. FLANAGAN . . . . . . . . . . . 103

4. EDWARD CONDE . . . . . . . . . . . . . . . . 134

5. ROD G. GULLBERG . . . . . . . . . . . . . . 143

6. SAMUEL E. CHAPPELL, Ph.D. . . . . . . . . . 156

7. BARRY K. LOGAN, Ph.D. . . . . . . . . . . . 162

8. J. ROBERT ZETTL . . . . . . . . . . . . . . 175

9. PATRICK M. HARDING . . . . . . . . . . . . . 185

10. NORMAN J. DEE . . . . . . . . . . . . . . . 196

11. STEPHEN B. SEIDMAN, Ph.D. . . . . . . . . . . 202

12. GERALD SIMPSON, Ph.D. . . . . . . . . . . . 210

13. MICHAEL PETER HLASTLA, Ph.D. . . . . . . . . 219


1. IN THE WAKE OF DOWNIE . . . . . . . . . . . 228

2. ADMINISTRATIVE SAFEGUARDS . . . . . . . . . . 238

3. SOURCE CODES . . . . . . . . . . . . . . . . 241

4. RFI-EMI INTERFERENCE . . . . . . . . . . . . 248

5. FOUNDATIONAL EVIDENCE . . . . . . . . . . . 250

6. BREATH VOLUME AND FLOW RATE . . . . . . . . 251

7. CENTRALIZED DATA MANAGEMENT . . . . . . . . . 253

8. NON-OPERATOR DEPENDENT . . . . . . . . . . 254

9. BREATH TEMPERATURE SENSOR . . . . . . . . . 255


VI. CONCLUSION . . . . . . . . . . . . . . . . . . . 258

APPENDIX A - TRANSCRIPTS . . . . . . . . . . . . . . 260


1. RECOMMENDED . . . . . . . . . . . . . . . . 262

2. ANCILLARY . . . . . . . . . . . . . . . . . 269

The case arises from quasi-criminal actions involving twenty defendants who were arrested in Middlesex County for driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50. Defendants challenged the admissibility and reliability of breath test results obtained from the Alcotest 7110 MKIII-C, firmware version NJ 3.11 (Alcotest 7110).
On October 14, 2005 the Law Division granted the State's motion to consolidate the cases pending as of May 23, 2005 in several Middlesex County municipal courts. Among other things, Judge Cantor denied the State's motion to take judicial notice of the opinion in State v. Foley, 370 N.J. Super. 341, 359 (Law Div. 2003), which ruled that the Alcotest 7110 MKIII-C was scientifically accurate and reliable and that its reported readings would be admitted into evidence without the need for expert testimony. At the time of Foley, New Jersey was using firmware version 3.8.
In her written statement of November 10, 2005 Judge Cantor explained that the Alcotest 7110 MKIII-C was a new instrument adopted throughout New Jersey on a county-by-county basis on a sequential timetable. She emphasized that only the Camden County, Law Division in Foley had found it scientifically reliable and that Judge Orlando, in dictum, had concluded that New Jersey should make certain changes in the instrument's firmware and the instructions given to its users. Ibid. Because the Alcotest 7110 MKIII-C was a novel scientific instrument which had never been vetted by an appellate court or our Supreme Court, Judge Cantor concluded that its scientific reliability remained a justiciable issue.
On December 1, 2005 the Appellate Division granted the State's motion for leave to appeal and denied its motion for a summary reversal. The Appellate Division remanded the matter to the trial court for an accelerated hearing on the validity of breath tests for alcohol, obtained through the use of Alcotest instruments.
On December 14, 2005 our Supreme Court certified the appeal pending in the Appellate Division on its own motion pursuant to R. 2:12-1. The Court vacated the remand to the Law Division and remanded the matter to retired Appellate Division Judge Michael Patrick King, to preside as a Special Master. The Court ordered the Special Master to conduct a hearing and report his findings and conclusions on an accelerated basis.
The Court ordered the Special Master to:

1. Conduct a plenary hearing on the reliability of Alcotest breath test instruments, including consideration of the pertinent portions of the record in State v. Foley, 370 N.J. Super. 341 (Law Div. 2003), and the within matters in the Superior Court, Law Division, Middlesex County, together with such additional expert testimony and arguments as may be presented by the parties;

2. Determine whether the testimony presented by the parties should be supplemented by that of independent experts selected by the Special Master;

3. Grant, in the Special Master's discretion, motions by appropriate entities seeking to participate as amici curiae, said motions to be filed with the Special Master within ten days of the filing date of this Order;

4. Invite, in the Special Master's discretion, the participation of entities or persons as amici curiae or, to the extent necessary in the interests of justice, as intervenors to assist the Special Master in the resolution of the issues before him; and

5. Within thirty days of the completion of the plenary hearing, file findings and conclusions with the Clerk of the Court and contemporaneously serve a copy on the parties and amici curiae, which service may be effectuated by the posting of the report on the Judiciary's website . . . .

The Court also ordered the parties, and permitted all amici curiae who participated in the plenary hearing, to serve and file initial briefs within fourteen days of the filing of the Special Master's report as well as responses, if any, within ten days. It further ordered the Clerk to set the matter for oral argument on the first available date after completion of briefing by the parties. Finally, the Court ordered the stay of N.J.S.A. 39:4-50 proceedings pending in Middlesex County, and directed all Superior and Municipal Court judges before whom such proceedings were pending, to ensure strict enforcement of the Court's Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey.
On January 9, 2006 the Special Master granted to the Association of Criminal Defense Lawyers of New Jersey (ACDL) leave to appear as amicus curiae. On January 23, 2006 the Special Master also admitted the New Jersey State Bar Association (NJSBA) as amicus curiae, under R. 1:13-9, in view of the matter's public importance.
On January 10, 2006 the Court sua sponte issued an order addressing issues that affected the prosecution of N.J.S.A. 39:4-50 offenses statewide. The Court ordered all prosecutions and appeals which did not involve the Alcotest 7110 to proceed in the normal course. The Court, however, ordered the stay of prosecutions and appeals involving repeat offenders and the execution of their sentences where the convictions were based solely on Alcotest readings. The Court also ordered that first-offender prosecutions proceed to trial based on clinical evidence when available and on Alcotest readings. It ordered, however, that the execution of sentences for all first offenders be stayed pending disposition of the Court's final decision on the Alcotest 7110's reliability, unless public interest required their immediate implementation.
As explained by the Administrative Director, Judge Carchman, in a clarifying memorandum to municipal court judges dated January 17, 2006, a court could admit evidence of an Alcotest reading, over the objection of defense counsel, without first holding a hearing on the instrument's scientific reliability. He further explained that under N.J.S.A. 39:4-50(a)(2) and (3), the penalty for repeat offenders was the same whether the finding of guilt was based on observation or blood alcohol levels. However, for first offenders, the penalty could vary, making the Alcotest reliability hearing of fundamental importance.
On March 15, 2006 the Court entered an order directing the Special Master to designate an independent expert or experts. Upon deliberation and consultation with the parties and amici curiae, the Special Master determined that a court-appointed expert was not necessary for proof purposes, especially because of the quasi-criminal nature of the proceedings.
Meanwhile, discovery proceeded. On February 3, 2006 the Special Master entered an order directing the State to give defendants certain information, documents and materials pertaining to the Alcotest 7110's firmware, software, algorithms, electronic schematics, and source codes. Among other things, the discovery order recognized that the exchange of firmware and software might require a protective order to be submitted by the State or manufacturer for court approval. On February 17, 2006 the Special Master entered a supplemental discovery order directing the State to lend three Alcotest 7110s to defense counsel and one to counsel for the amicus NJSBA. Among other things, the supplemental discovery order also allowed the manufacturer Draeger Safety Diagnostics, Inc. (Draeger) to apply to intervene in this matter, especially because of the issue of "trade secrets."
Draeger objected to the discovery orders claiming that they permitted the release of trade secrets and proprietary information. On February 23, 2006 Draeger's intellectual property counsel prepared a proposed protective order and sent it to the State for submission to the court. Draeger's proposal included a request for indemnification from defense counsel. In response to defendants' objections to Draeger's initial draft ¾ especially to the request for indemnity ¾ and a revised proposal by the State, the Special Master requested defense counsel to submit a proposed protective order.
Draeger then offered to make copies of the Alcotest 7110's source codes available to the Special Master and explain them to him during an in camera session provided there would be no testimonial record and the data would be returned after his inspection and decision. Again, defense counsel objected, explaining that the purpose of requesting the source codes and algorithms was to allow their expert to review and test them.
On April 19, 2006 defendants submitted their proposed protective order. In anticipation of a court-issued protective order, the State provided to defense counsel and the amicus the four Alcotest 7110 instruments for their inspection.
On April 26, 2006 the Special Master entered a protective order which required all discovery information in which Draeger asserted an intellectual property right so marked. With regard to the marked discovery, the protective order required: (1) that the information could not be disclosed by parties or amici curiae, or by consultants and experts given access to it; and (2) that the information must be returned to Draeger following the conclusion of all litigation. The protective order also extended its terms and restrictions for three years from the termination of litigation or until such time as the marked discovery information entered the public domain, whichever came first, and stated that the violation or breach of any condition would be grounds for court contempt action, civil damages or other appropriate sanctions after a hearing where the accused would be afforded due process under R. 1:10. Additionally, if Draeger did not cooperate with discovery, the protective order allowed the Special Master to draw any appropriate negative inferences in his decision on the Alcotest 7110's reliability. The protective order did not include an indemnification provision.
Shortly after, on April 28, 2006, the State submitted comments on its revised proposed protective order. In part, the State explained that the indemnification provision would require those defendants who received the instruments to indemnify and hold harmless the State from any damage that might result from the firmware's use or installation.
On May 15, 2006 Draeger wrote to the State with its objections noting that it would not cooperate with discovery unless the court entered a "satisfactory" protective order. On May 22, 2006, after consideration of Draeger's expressed objections, the Special Master amended the protective order by: further limiting access to the information disclosed; extending the term and restrictions from three years to as long as the marked discovery information remained a trade secret or until it entered the public domain; and providing that other sanctions might be appropriate in cases where Draeger demonstrated at a hearing that it would suffer irreparable harm and there was no adequate remedy at law.
On June 15, 2006 Draeger wrote again to the State indicating that the amended protective order was an "improvement" but still did not provide adequate protection. Draeger continued to insist that the Special Master adopt an order substantially similar to its initial proposal. For example, Draeger contended: it should be provided with the identity of experts who would be given the marked information in discovery; it should not have to appear before the Special Master at a hearing to demonstrate irreparable harm; it should be allowed to demonstrate its intellectual property rights or prove its need for injunctive relief in a forum other than before Judge King; and it should not be forced to comply with an order essentially based upon a proposal by defendants who did not have any trade secrets or proprietary information to be protected.
Draeger also advised the Special Master and the State that it "recently" had adopted a "new policy" regarding confidential disclosure of the Alcotest 7110's source codes and other trade secrets to those individuals ¾ including parties involved in the Chun litigation ¾ who accepted the following conditions: (1) individuals who agreed to sign appropriate non-disclosure and confidentiality agreements prepared by Draeger; (2) individuals who agreed to review the information in a room at Draeger's offices in Durango, Colorado; (3) individuals who agreed to allow a Draeger representative to be present in the room when they reviewed the information; and (4) individuals who agreed not to take photographs, make copies by writing or other means, or make any recordings of the information. To maintain its "non-party status," Draeger again declined the Special Master's offer to meet with him or participate in any conferences. Incidentally, Draeger has no United States or foreign patent protection on the Alcotest 7110.
Neither the State nor defendants expressed any interest in complying with Draeger's fastidious conditions on the source codes' disclosure. The Special Master also declined to further amend the protective order. Consequently, discovery and the exchange of documents and expert reports proceeded without Draeger's participation. This created an anomalous situation: the manufacturer was not a party to the defense of its product. The State had to defend the Alcotest 7110 derivately.
Pursuant to N.J.R.E. 104, the Special Master held forty-one full days of evidentiary hearings which commenced on September 18, 2006 and concluded on January 10, 2007. The parties and amicus NJSBA submitted proposed findings of fact and conclusions of law regarding the scientific reliability of the Alcotest 7110. As further ordered by the Court, the Special Master has issued his findings and conclusions in this matter within thirty days of the completion of the hearings.

The key issue is whether the Alcotest 7110 is a scientifically reliable instrument for determining the alcohol content of the breath and blood. The resolution of this question will assist the Supreme Court in determining whether the results of Alcotest 7110 readings generally may be admitted in evidence and support convictions under N.J.S.A. 39:4-50 and cognate statutes.
Under New Jersey's statutory scheme, a driver of a motor vehicle is guilty of a so-called "per se" violation of N.J.S.A. 39:4-50(a) at a "blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood." Thus, New Jersey is a "blood" alcohol jurisdiction as opposed to a "breath" alcohol jurisdiction. See State v. Downie, 117 N.J. 450, 469-71 (1990) (Stein, J., dissenting). A person "under the legal age

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