New Jersey v. Cassidy
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The issue this case presented for the New Jersey Supreme Court’s review centered on the State’s use of the Alcotest 7110 MKIII-C (Alcotest) to obtain breath samples from drivers suspected of driving under the influence of alcohol. In 2008, the Supreme Court found Alcotest results admissible in drunk-driving cases to establish a defendant’s guilt or innocence for drunk driving. The Court also required that the devices be recalibrated semi-annually to help ensure accurate measurements. Defendant Eileen Cassidy pleaded guilty in municipal court to driving under the influence based solely on Alcotest results showing her blood alcohol level had exceeded the legal limit. Upon learning that the results of her test were among those called into question from the New Jersey State Police’s Alcohol Drug Testing Unit; the coordinator responsible for administering the calibrations was criminally charged, and the samples taken from some 20,000 people were procured by machines calibrated by that coordinator. Cassidy moved to withdraw her guilty plea. A special master issued a 198-page report concluding the reliability of the Alcotest had been undermined by the coordinator’s faulty calibrations. As such, the State could not carry its burden of proving by clear and convincing evidence the Alcotest was scientifically reliable. The Supreme Court exercised its original jurisdiction to vacate Cassidy’s conviction.
SYLLABUS
This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Eileen Cassidy (A-58-16) (078390)
Argued September 12, 2018 -- Decided November 13, 2018
TIMPONE, J., writing for the Court.
The Court considers the admissibility of breath test results produced by Alcotest
machines not calibrated using a thermometer that produces temperature measurements
traceable to the standards set by the National Institute of Standards and Technology (NIST).
In 2000, the State began using the Alcotest, a product of Draeger Safety Diagnostics
Inc. (Draeger), to conduct breath tests. The Alcotest machine analyzes breath samples,
producing blood alcohol concentration readings used to determine whether a driver’s blood
alcohol content is above the legal limit. In 2004, Dr. Thomas A. Brettell developed the
current calibration protocol while he was director of the State’s Office of Forensic Sciences
(OFS). In 2008, the Court found results from Alcotest machines calibrated pursuant to Dr.
Brettel’s protocol sufficiently reliable to be admissible in drunk-driving cases to establish a
defendant’s guilt or innocence for drunk driving. State v. Chun, 194 N.J. 54, 65 (2008). The
Court also required that the devices be recalibrated semi-annually to help ensure accurate
measurements. Id. at 153.
During the calibration process, simulator solutions are heated to about 34 degrees
Celsius, the generally accepted temperature for human breath. It is essential that the
temperature of the solution be accurate in order for the Alcotest’s blood alcohol content
readings to be correct. The Alcotest’s calibration procedure requires the test coordinator to
insert a thermometer that produces NIST-traceable temperature measurements into the
simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated
the solution to a temperature within 0.2 degrees of 34 degrees Celsius. When a
thermometer’s temperature measurements are “traceable” to the standard measurements of
the NIST, those measurements are generally accepted as accurate by the scientific
community. There are two other temperature probes used during the calibration procedure.
Unlike the NIST-traceable thermometer, they are manufactured and calibrated by Draeger.
Marc W. Dennis, a coordinator in the New Jersey State Police’s Alcohol Drug
Testing Unit, was tasked with performing the semi-annual calibrations on Alcotest
instruments used in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is
charged with neglecting to take required measurements and having falsely certified that he
followed the calibration procedures. Dennis was indicted in 2016 for failing to use a NIST-
traceable thermometer to measure the temperature of simulator solutions used to calibrate
1
Alcotest devices. When Dennis was criminally charged, the Attorney General’s Office
notified the Administrative Office of the Courts that evidential breath samples from 20,667
people were procured using Alcotest machines calibrated by Dennis.
Defendant Eileen Cassidy, now deceased, pleaded guilty in municipal court to driving
under the influence based solely on Alcotest results showing her blood alcohol level had
exceeded the legal limit. Upon learning that the results of her test were among those called
into question by Dennis’s alleged falsifications, she moved to withdraw her guilty plea. The
Attorney General moved for direct certification. The Court granted the motion and
remanded the case to retired Appellate Division Presiding Judge Joseph F. Lisa as Special
Master to determine whether “the failure to test the simulator solutions with the NIST-
traceable digital thermometer before calibrating an Alcotest machine [would] undermine or
call into question the scientific reliability of breath tests subsequently performed on the
Alcotest machine.” 230 N.J. 232, 232-33 (2017).
After an extensive evidentiary hearing, the Special Master issued a 198-page report in
which he concluded that failure to use a thermometer that produces NIST-traceable
temperature readings in the calibration process undermines the reliability of the Alcotest and
that the State failed to carry its burden of proving by clear and convincing evidence that the
Alcotest was scientifically reliable without a NIST-traceable temperature check. The Special
Master’s report is appended to the Court’s opinion.
HELD: The Special Master’s findings are supported by substantial credible evidence in the
record, and the Court adopts them. Breath test results produced by Alcotest machines not
calibrated using a NIST-traceable thermometer are inadmissible.
1. This case is justiciable despite defendant’s passing. The Court will entertain a case that
has become moot when the issue is of significant public importance and is likely to recur.
The reliability and admissibility of thousands of breath samples, often used as the sole
evidence to support a conviction, is of significant public importance. (pp. 9-10)
2. Scientific test results are admissible in a criminal trial only when the technique is shown
to be generally accepted as reliable within the relevant scientific community. Chun, 194 N.J.
at 91. Although the Court recently adopted the factors identified in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a methodology-based approach for
determining scientific reliability in certain areas of civil law, the Court has not altered its
adherence to the general acceptance test for reliability in criminal matters. The proponent of
the technique has the burden to clearly establish general acceptance and may do so using
(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions. The party
proffering the evidence need not show infallibility of the technique nor unanimity of its
acceptance in the scientific community. (pp. 10-11)
3. Of the State’s witnesses, the Special Master found only the testimony of Dr. Brettell
worthy of substantial weight; he found defendant’s expert credible. The Court defers to and
adopts the Special Master’s detailed credibility findings. (p. 12)
2
4. Based on the credible testimony, the Special Master determined that accurate temperature
readings of the simulator solutions are “the foundation upon which the entire calibration
process is built.” The Special Master found NIST traceability “essential” to confidence in
the Alcotest’s results and that the two Draeger-manufactured probes were not NIST-traceable
and were insufficient substitutes for the use of a NIST-traceable thermometer. The Special
Master also found it particularly significant that the NIST-traceable thermometer was the
only temperature measuring device used in the calibration process that was independent from
the Alcotest and not manufactured and calibrated by Draeger. The Special Master found it
“extremely important and persuasive” that current protocol treats the failure to achieve an in-
range temperature reading using the NIST-traceable thermometer as an event of sufficient
magnitude to abort a calibration. The Special Master reasoned that such facts clearly cut
against the State’s argument that the use of the thermometer is an unnecessary redundancy.
Further, the Special Master rejected the State’s theory that ten simultaneous failures would
need to occur for the certainty of Alcotest results to be compromised, finding instead that the
evidence showed that three relatively minor errors could cause undetected miscalibrations.
The Special Master determined that the State had not shown that other states’ practices
revealed general acceptance of the reliability of Alcotest results without the use of a NIST-
traceable thermometer. Because the Special Master’s findings are supported by substantial
credible evidence in the record, the Court adopts them. (pp. 13-17)
5. Applying the general acceptance standard to the Special Master’s findings, the Court
holds that the State failed to carry its burden and affirms the Special Master’s conclusion.
Temperature measurements that are NIST-traceable are generally accepted as reliable by the
scientific community. Part of that reliability lies in the fact that the level of uncertainty of
each temperature measurement is known. The two Draeger-manufactured probes fail to meet
the NIST’s standards and the measure of uncertainty in their temperature readings is
unknown. The Court does not accept the State’s contention that the risk of miscalibration is
infinitesimal due to the numerous other fail-safes in the calibration procedure. As Dr.
Brettell testified, it was that very fear of a laboratory bias that led him to include the NIST-
traceable thermometer in the calibration procedure. (pp. 18-19)
6. The Court orders the State to notify all affected defendants of its decision that breath test
results produced by Alcotest machines not calibrated using a NIST-traceable thermometer
are inadmissible and commends to the State that it require the manual recording of the NIST-
traceable readings going forward. Further, the Court lifts the stay on all pending cases so
that deliberations may commence on whether and how those cases should proceed. For those
cases already decided, affected defendants may now seek appropriate relief. Because the
State waited approximately a year to notify the affected defendants, the Court relaxes the
five-year time bar, R. 7:10-2(b)(2), in the interests of justice. The Court asks the Director of
the Administrative Office of the Courts to monitor these cases and recommend how best to
administer them in the event any special measures are needed. Finally, as to defendant
Cassidy, the Court exercises its original jurisdiction and vacates her conviction. (pp. 19-20)
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-
58 September Term 2016
078390
State of New Jersey,
Plaintiff-Appellant,
v.
Eileen Cassidy,
Defendant-Respondent.
On appeal from the Spring Lake Municipal Court,
Monmouth County.
Remanded Special Master Report
April 7, 2017 May 4, 2018
Argued Decided
September 12, 2018 November 13, 2018
Robyn B. Mitchell, Deputy Attorney General, argued
the cause for appellant (Gurbir S. Grewal, Attorney
General, attorney; Sarah C. Hunt and Sarah Lichter,
Deputy Attorneys General, of counsel and on the
briefs).
Michael R. Hobbie argued the cause for respondent
(Hobbie, Corrigan & Bertucio, attorneys; Michael R.
Hobbie and Elyse S. Schindel, of counsel and on the
briefs).
1
Jeffrey E. Gold argued the cause for amicus curiae
New Jersey State Bar Association (New Jersey State
Bar Association, attorneys; John E. Keefe, Jr.,
President, of counsel and on the brief, and Jeffrey E.
Gold, Arnold N. Fishman, and Miles S. Winder III, on
the briefs).
Matthew W. Reisig, participating attorney (Reisig
Criminal Defense & DWI Law, attorneys; Matthew W.
Reisig, of counsel and on the briefs, and Jeffrey Zajac,
on the briefs).
John Menzel, participating attorney (John Menzel,
J.D., on the briefs).
Evan M. Levow, participating attorney, submitted a
brief (Levow DWI Law, attorneys).
JUSTICE TIMPONE delivered the opinion of the Court.
The case before us concerns New Jersey law enforcement’s use of the
Alcotest 7110 MKIII-C (Alcotest) to obtain breath samples from drivers
suspected of driving under the influence of alcohol. The Alcotest machine
analyzes breath samples, producing blood alcohol concentration readings used
to determine whether a driver’s blood alcohol content is above the legal limit.
In 2008, we found Alcotest results admissible in drunk-driving cases to
establish a defendant’s guilt or innocence for drunk driving. State v. Chun,
194 N.J. 54, 65 (2008). We also required that the devices be recalibrated semi-
annually to help ensure accurate measurements. Id. at 153.
2
Confidence in the reliability of instruments of technology used as
evidence is of paramount importance. Unfortunately, alleged human failings
have cast doubt on the calibration process. Marc W. Dennis, a coordinator in
the New Jersey State Police’s Alcohol Drug Testing Unit, was tasked with
performing the semi-annual calibrations on Alcotest instruments used in
Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is charged
with neglecting to take required measurements and having falsely certified that
he followed the calibration procedures. Dennis was indicted in 2016 for
failing to use a thermometer that produces temperature measurements traceable
to the standards set by the National Institute of Standards and Technology
(NIST) to measure the temperature of simulator solutions used to calibrate
Alcotest devices. When Dennis was criminally charged, the Attorney
General’s Office notified the Administrative Office of the Courts that
evidential breath samples from 20,667 people were procured using Alcotest
machines calibrated by Dennis.
Defendant Eileen Cassidy, now deceased, pleaded guilty in municipal
court to driving under the influence based solely on Alcotest results showing
her blood alcohol level had exceeded the legal limit. Upon learning that the
results of her test were among those called into question by Dennis’s alleged
falsifications, she moved to withdraw her guilty plea. The Attorney General
3
moved for direct certification. We granted the motion because the central
issue of this case is typical to the large number of defendants affected by
Dennis’s alleged misconduct. We remanded the case to retired Appellate
Division Presiding Judge Joseph F. Lisa as Special Master to determine
whether “the failure to test the simulator solutions with the NIST-traceable
digital thermometer before calibrating an Alcotest machine [would] undermine
or call into question the scientific reliability of breath tests subsequently
performed on the Alcotest machine.” 230 N.J. 232, 232-33 (2017).
On May 4, 2018, after an extensive evidentiary hearing, the Special
Master issued a 198-page report in which he concluded that failure to use a
thermometer that produces NIST-traceable temperature readings in the
calibration process undermines the reliability of the Alcotest. We now adopt
the Special Master’s findings because they are supported by substantial
credible evidence in the record, see Chun, 194 N.J. at 93, and we append his
report to this opinion.
I.
We briefly highlight the following facts from the record and commend a
review of the Special Master’s comprehensive report for the finer details. We
rely heavily on the Special Master’s report.
4
In 2000, the State began using the Alcotest, a product of Draeger Safety
Diagnostics Inc. (Draeger), to conduct breath tests. In 2004, Dr. Thomas A.
Brettell developed the current calibration protocol while he was director of the
State’s Office of Forensic Sciences (OFS), and we deemed the Alcotest
sufficiently reliable as calibrated pursuant to Dr. Brettell’s protocol. Chun,
194 N.J. at 148. As this Court ordered in Chun, N.J.A.C. 13:51-4.3(a) requires
the semi-annual calibration of approved instruments used to test the alcohol
content of breath samples. Id. at 153. The regulation, however, does not
specify a calibration procedure.
During the calibration process, simulator solutions containing varying
concentrations of ethanol are used to calibrate the Alcotest and confirm the
accuracy of its blood alcohol content readings. The simulator solutions are
poured into calibration units, which are glass containers that house a heating
component. The calibration units heat the solutions to about 34 degrees
Celsius, the generally accepted temperature for human breath, creating a
vapor. The vapor is a proxy for human breath. It is essential that the
temperature of the solution be accurate in order for the Alcotest’s blood
alcohol content readings to be correct. The Alcotest’s calibration procedure
requires the test coordinator to insert a thermometer that produces NIST-
traceable temperature measurements into the simulator solution used to
5
calibrate the Alcotest and confirm that the calibration unit heated the solution
to a temperature within 0.2 degrees of 34 degrees Celsius. The NIST is the
federal agency responsible for maintaining and promoting consistent units of
measurement. When a thermometer’s temperature measurements are
“traceable” to the standard measurements of the NIST, those measurements are
generally accepted as accurate by the scientific community.
There are two other temperature probes used during the calibration
procedure. Unlike the NIST-traceable thermometer, both of those probes are
manufactured and calibrated by Draeger. The first is the “black key probe,”
which plugs into the Alcotest device and allows the coordinator to access the
calibration function. That probe is used to measure each simulator solution’s
temperature during a series of control tests. The second is the “agency’s
probe,” which also plugs into the Alcotest and is used to measure the
temperature of the simulator solution used in the final test to confirm that the
Alcotest was calibrated correctly.
After the Special Master observed State Trooper David Klimik
demonstrate an Alcotest calibration for him and heard testimony from five
expert witnesses, including Dr. Brettell, the Special Master issued his report.
In it the Special Master found the State failed to carry its burden of proving by
clear and convincing evidence that the Alcotest was scientifically reliable
6
without a NIST-traceable temperature check. Infra at ___ (slip op. at 197-98).
The Special Master stated the record “raise[d] substantial doubts about the
scientific reliability of breath test results produced by Alcotest devices
calibrated without the use of a NIST-traceable thermometer.” Infra at ___
(slip op. at 185). He rejected the State’s contention that the Alcotest itself
contains so many redundancies and fail-safes that the use of a NIST-traceable
thermometer is merely a supplementary check above and beyond the threshold
of sufficient reliability. Infra at ___ (slip op. at 189-90). The Special Master
determined that, without the NIST-traceable temperature measurement, the risk
of undetected miscalibrations was “reasonably plausible” and would lead to
“some number of undetected miscalibrations” among the roughly 1200 tests
performed annually. Infra at ___ (slip op. at 194-96).
II.
A.
The State challenges the Special Master’s findings, asserting that it met
its burden of demonstrating by clear and convincing evidence that the Alcotest
is generally accepted as reliable even when a NIST-traceable thermometer is
not used in the calibration process. The State points to the testimony of Dr.
Brettell that the black key probe and agency’s probe are so comprehensive that
the reliability of breath test results will not be reduced without the use of a
7
NIST-traceable thermometer. It also highlights the fact that no other state
using the Alcotest requires the use of a NIST-traceable thermometer in the
calibration process. The State urges us to find that the Special Master held it
to a standard far exceeding its evidentiary burden.
The State further asks this Court to reject the Special Master’s findings
that the black key and agency’s probes’ temperature readings are not NIST-
traceable, arguing that question was not within the scope of the remand.
B.
Defendant asks us to adopt the Special Master’s findings and contends
the use of a NIST-traceable thermometer is essential because miscalibrations
leading to inaccurate breath test readings could otherwise occur. Defendant
stresses that the black key and agency’s temperature probes do not produce
NIST-traceable temperature readings and the use of an independent
thermometer is the only way to verify the solutions’ temperatures during the
calibration process.
C.
Amicus curiae the New Jersey State Bar Association agrees with the
Special Master’s findings and conclusions. It asserts that the fundamental
problem with skipping the NIST-traceable measurement is not that it
introduces uncertainty, but that it introduces an unquantifiable amount of
8
uncertainty. In the State Bar Association’s view, the Special Master affirmed
this Court’s assumption in Chun that NIST-traceable temperature
measurements are integral to the reliability of the Alcotest.
D.
Participating attorney John Menzel, who represented the respondents in
Chun, asks us to adopt the Special Master’s findings, but notes the Special
Master applied a more general clear and convincing evidence standard rather
than the stricter general acceptance standard.
III.
As a preliminary matter, we hold this case is justiciable despite
defendant’s passing. As this Court explained in State v. Gartland, we “will
entertain a case that has become moot when the issue is of significant public
importance and is likely to recur.” 149 N.J. 456, 464 (1997).
We granted the State’s application for direct certification from the
municipal court because of the far-reaching implications of this case. The
pivotal issue is whether the Alcotest is sufficiently reliable absent the use of a
NIST-traceable thermometer in its calibration. Defendant’s case is emblematic
of each case, pending or closed, in which the State used or seeks to use one of
the 20,667 breath samples called into question by Dennis’s alleged
misconduct. The reliability -- and, consequently the admissibility, see
9
Romano v. Kimmelman, 96 N.J. 66, 80 (1984) -- of thousands of breath
samples, often used as the sole evidence to support a conviction, is undeniably
of significant public importance.
IV.
Generally, the Court will defer to a special master’s credibility findings
regarding the testimony of expert witnesses, but we owe no deference to a
special master’s legal conclusions. State v. Henderson, 208 N.J. 208, 247
(2011). The Court also accepts the fact findings of a special master to the
extent they are supported by “substantial credible evidence in the record.”
Chun, 194 N.J. at 93.
A.
Scientific test results are admissible in a criminal trial only when the
technique is shown to be generally accepted as reliable within the relevant
scientific community. Id. at 91. The general acceptance standard is commonly
known as the Frye standard. See State v. J.L.G., 234 N.J. 265, 280 (2018).
Although this Court recently adopted the factors identified in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95 (1993), and a
methodology-based approach for determining scientific reliability in certain
areas of civil law, we have not altered our adherence to the general acceptance
10
test for reliability in criminal matters. In re Accutane Litig., 234 N.J. 340,
398-99 (2018); J.L.G., 234 N.J. at 280.
“Proof of general acceptance within a scientific community can be
elusive,” and “[s]atisfying the test involves more than simply counting how
many scientists accept the reliability of the proffered [technique].” State v.
Harvey, 151 N.J. 117, 171 (1997). General acceptance “entails the strict
application of the scientific method, which requires an extraordinarily high
level of proof based on prolonged, controlled, consistent, and validated
experience.” Ibid. (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421,
436 (1991)). The proponent of the technique has the burden to “clearly
establish” general acceptance, State v. Johnson, 42 N.J. 146, 171 (1964), and
may do so using “(1) expert testimony, (2) scientific and legal writings, and (3)
judicial opinions,” State v. Cavallo, 88 N.J. 508, 521 (1982) (quoting Paul C.
Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United
States, a Half-Century Later,
80 Colum. L. Rev. 1197, 1215 (1980)).
To be clear, the party proffering the evidence need not show infallibility
of the technique nor unanimity of its acceptance in the scientific community.
Chun, 194 N.J. at 91-92; Harvey, 151 N.J. at 171; Johnson, 42 N.J. at 171.
11
B.
The State had the burden to clearly establish that the Alcotest is
sufficiently reliable under the general acceptance standard without the use of a
NIST-traceable thermometer in the calibration process. The State contends it
carried that burden by showing the use of a NIST-traceable thermometer is
unnecessary to ensure the accuracy of the temperature of the simulator solution
used to calibrate the Alcotest. According to the State, the temperature of the
solutions can be indirectly verified by the two Draeger-manufactured probes,
which were themselves checked against NIST-traceable temperature
measurements at the time they were calibrated. We disagree.
We begin with a brief review of the Special Master’s credibility
determinations. The State proffered four witnesses in addition to Trooper
Klimik, who demonstrated and answered questions about the calibration
process. Of those four witnesses, the Special Master found only the testimony
of Dr. Brettell, who “was qualified in this proceeding to render expert opinions
in the fields of forensic chemistry, forensic toxicology, scientific measuring,
and breath testing,” worthy of substantial weight. Infra at ___ (slip op. at 53-
55). As for defendant’s expert, Dr. Andreas Stolz, the Special Master found
him credible. Infra at ___ (slip op. at 78). We defer to and adopt the Special
Master’s detailed credibility findings. See Henderson, 208 N.J. at 247.
12
Based on the credible testimony, the Special Master determined that
accurate temperature readings of the simulator solutions are “the foundation
upon which the entire calibration process is built.” Infra at ___ (slip op. at
190). The Special Master found NIST traceability “essential” to confidence in
the Alcotest’s results. Ibid. And, after considering the NIST’s standards for
traceability, the Special Master found that the black key and agency’s probes
were not NIST-traceable and were insufficient substitutes for the use of a
NIST-traceable thermometer. Infra at ___ (slip op. at 187-88).
Dr. Stolz testified that accurate temperature readings of the simulator
solutions were critical to the accuracy of the Alcotest. He opined that if the
temperature of the simulator solution was off by a single degree, and that error
went undetected, the Alcotest’s blood alcohol measurements would be off by
seven percent. That is, a breath sample with an actual alcohol concentration of
.075%, could be read as .082%. Clearly, the accuracy of the temperature of
the simulator solutions used to calibrate the Alcotest is critically important to
the fidelity of its readings.
The Special Master reproduced the standards for NIST-traceability in his
report and detailed Draeger’s process for calibrating the black key and
agency’s temperature probes. Infra at ___ (slip op. at 87-99). The Special
Master’s detailed description of that process need not be reprinted here; it is
13
sufficient to note that Draeger’s process does not meet the NIST’s standards
for an unbroken chain of measurement comparisons or for estimating the
overall degree of uncertainty of the comparison measurements. The Special
Master concluded the black key and agency’s temperature probes are not
NIST-traceable. The Special Master’s findings that the probes are not NIST-
traceable did not exceed the scope of the remand and are supported by
substantial credible evidence in the record. We see no reason to question the
Special Master’s determination.
As the Special Master observed, the Draeger temperature probes do not
produce NIST-traceable measurements, in part, because the level of
uncertainty in those measurements is unknown. Infra at ___ (slip op. at 96).
Both Dr. Brettell and Dr. Stolz acknowledged there is some amount of
uncertainty in every temperature measurement. Dr. Stolz explained that it is
not such uncertainty itself that is problematic; rather, for a measurement to be
scientifically reliable, the amount of uncertainty must be known so the error
rate of a given temperature measurement can be determined. Dr. Stolz
testified that it is not knowing the level of uncertainty in a given measurement
that makes the measurement scientifically unreliable.
Dr. Brettell likewise stressed the importance of NIST-traceable
measurements. He acknowledged the scientific reliability of the Alcotest was
14
reduced absent the use of a NIST-traceable thermometer. He agreed with Dr.
Stolz that, without the use of a NIST-traceable thermometer, there was an
unquantifiable amount of uncertainty in the Alcotest’s measurements. Dr.
Brettell conceded: “Collectively, [the steps in the calibration process] are
requirements that would be necessary for calibrating the instrument . . . .” The
Special Master asked: “To ensure scientific reliability?” Dr. Brettell
answered: “Yes.”
The Special Master also found it particularly significant that the NIST-
traceable thermometer was the only temperature measuring device used in the
calibration process that was independent from the Alcotest and not
manufactured and calibrated by Draeger. See infra at ___ (slip op. at 125-41,
180, 190-91). Dr. Stolz explained that if Draeger accidently used the wrong
temperature in calibrating the calibration units and the probes, then the
temperature variance would go undetected and the Alcotest’s readings would
be factually inaccurate.
Dr. Brettell testified he included the use of a NIST-traceable
thermometer to independently verify the temperature of the solutions in light
of the legal significance of the Alcotest. He explained that
if you put everything into Draeger’s hands as far as
certifying the solutions, the instrument, the calibrating
unit and everything else, what if -- what if there is a
15
bias or an error in Draeger’s laboratory? What impact
would that have on the breath test program in New
Jersey? And so as far as the risk assessment, I took
every step I could to independently test as much as I
could of this program independently of Draeger to
make sure that if that happened, we have a good chance
of stopping it before it proliferated out.
The Special Master found it “extremely important and persuasive” that
current protocol treats the failure to achieve an in-range temperature reading
using the NIST-traceable thermometer as an event of sufficient magnitude to
abort a calibration. Infra at ___ (slip op. at 187). The Special Master reasoned
that such facts clearly cut against the State’s argument that the use of the
thermometer is an unnecessary redundancy. Infra at ___ (slip op. at 189-90).
Further, the Special Master rejected the State’s theory that ten
simultaneous failures would need to occur for the certainty of Alcotest results
to be compromised, finding instead that the evidence showed that three
relatively minor errors could cause undetected miscalibrations. Infra at ___
(slip op. at 130, 183). Though the Special Master found that it would not be
common for the three errors to occur simultaneously, he found that they were
“plausible, evidence-based occurrences.” Infra at ___ (slip op. at 183-84).
The Special Master’s main concern was that miscalibrations could go
undetected without the use of a NIST-traceable thermometer and the State had
“failed to quantify the magnitude of the reduced scientific reliability” of the
16
calibration process when no NIST-traceable device is used. Infra at ___ (slip
op. at 184).
The State disputed the need for the use of a NIST-traceable
thermometer, noting that New Jersey is the only jurisdiction using the Alcotest
that mandates the thermometer’s use in the calibration process. The Special
Master rejected that claim because “uncontroverted evidence established that
the instrument was highly customized for each jurisdiction.” Infra at ___ (slip
op. at 162-63). That customization complicates comparative analysis of the
states’ processes because not enough states use the Alcotest to establish
general acceptance and because, even among those states that do use the
Alcotest, New Jersey “was possibly the most substantial user of the
instrument.” Infra at ___ (slip op. at 169-70). The Special Master determined
that the State had not shown New Jersey to be an outlier or that other states’
practices revealed general acceptance of the reliability of Alcotest results
without the use of a NIST-traceable thermometer. Infra at ___ (slip op. at
170).
We owe a great debt to the Special Master for his diligence and
insightfulness so evident in his extensive and thorough report. Because his
findings are supported by substantial credible evidence in the record, we adopt
them.
17
Applying the general acceptance standard to the Special Master’s
findings, we hold the State failed to carry its burden and affirm the Special
Master’s conclusion.
Contrary to the State’s contentions that the Special Master held it to a
standard of infallibility, we find he did not. The State’s argument that the
accuracy of the simulator solutions’ temperatures can be indirectly verified
using the black key and agency’s probe cannot overcome the fact that the
temperature measurements of those probes are not NIST-traceable. Simply
put, temperature measurements that are NIST-traceable are generally accepted
as reliable by the scientific community. Part of that reliability lies in the fact
that the level of uncertainty of each temperature measurement is known.
Because the probes fail to meet the NIST’s standards for traceability and the
measure of uncertainty in their temperature readings is unknown, the scientific
reliability of the probes’ temperature measurements are left in doubt.
We do not accept the State’s contention that the risk of miscalibration is
infinitesimal due to the numerous other fail-safes in the calibration procedure.
It is improbable such a showing could satisfy the general acceptance standard
because the temperature probes used in the calibration process would still have
an unknown level of measurement uncertainty and would not be traceable to
the national standards. But assuming such a showing could satisfy the State’s
18
burden, the State failed to demonstrate why we should reject the Special
Master’s findings, specifically his concern that a laboratory error or a
confluence of multiple minor errors could lead to undetected miscalibrations.
Dr. Stolz and Dr. Brettell testified that they were concerned Draeger, which
calibrates the other temperature probes used in the calibration procedure, could
accidentally miscalibrate all the probes due to a laboratory mistake. In fact, as
Dr. Brettell testified, it was that very fear of a laboratory bias that led him to
include the NIST-traceable thermometer in the calibration procedure.
V.
We order the State to notify all affected defendants of our decision that
breath test results produced by Alcotest machines not calibrated using a NIST-
traceable thermometer are inadmissible, so that they may take appropriate
action. We further commend to the State that it require the manual recording
of the NIST-traceable readings going forward as a check against negligent
performances of this integral human test.
Further, we lift the stay on all pending cases so that deliberations may
commence on whether and how those cases should proceed. For those cases
already decided, affected defendants may now seek appropriate relief.
Because the State waited approximately a year to notify the affected
defendants, we relax the five-year time bar, R. 7:10-2(b)(2), in the interests of
19
justice. We ask the Director of the Administrative Office of the Courts to
monitor these cases and recommend how best to administer them in the event
any special measures are needed. Finally, as to defendant Cassidy, we
exercise our original jurisdiction and vacate her conviction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’s opinion.
20
APPENDIX
SUPREME COURT OF NEW JERSEY
M-2 4 4 / 2 4 5 / 2 4
6 September Term 2 0 1 6
078 3 9 0
STATE OF NEW JERSEY ,
Plainti f f -Movant ,
v.
EILEEN CAS S I DY ,
Defendant-Respondent .
REPORT OF FINDINGS OF FACTS AND CONCLUSIONS OF REMAND COURT
On remand from the Supreme Court of New
Jersey : April 7 , 2 0 1 7
Findings and Conc lusions Submitted to Supreme
Court : May 4 , 2 0 1 8
Robert H . C zepie l , Jr . , Supervis ing Deputy
Attorney General , Robyn B . Mitchel l , Deputy
Attorney General , Jamie A . Gallaghe r , Deputy
Attorney General , appeared on behalf of
plaint i f f -movant State of New Jersey ( Gurbir
S . Grewal , Attorney General , attorney ) .
Michael R . Hobbie and Elyse s. Schinde l
appeared on behalf of defendant-respondent
E i leen Cass idy ( Hobbie , Corrigan & Bertucc io ,
attorneys ) .
Sharon A. Balsamo ( New Jersey State Bar
Association ) , Arnold N. F i s hman ( Fi s hman &
F i shman ) , Miles S . Winde r , I I I ( Carl Taylor
Law , LLC ) , Jeffrey E. Gold and Zachary I.
Hashmi ( Gold & Hashmi , P . C . , ) appeared on
behalf of amicus curiae New Jersey State Bar
Association .
Matthew w. Riesig appeared as a Participating
Attorney .
John Men z e l appeared as a Participating
Attorney .
Samuel Louis Sachs appeared as a Participating
Attorney . 1
LISA, P . J . A . D . ( retired and temporarily a s s igned on reca l l ) ,
SPEC IAL MASTER
TABLE OF CONTENTS
I• INTRODUCTION p.4
II . BACKGROUND p.6
A. Legal and factual background o f breath
testing in New Jersey p.6
B. State v . background and
procedural history p.21
c. The c a l ibration check proc e s s p.31
III . WITNESSES : QUALIFICATIONS AND ASSESSMENT OF
CREDIBILITY p . 50
A. State's witne s s e s p . 50
1. Trooper David Klimik p. 50
2• Dr . Thomas A . Bret tel l p.51
3. Brian Shaffer p . 55
4. Dr . Howard J . Baum p. 61
5. Dr . Ali M . Alaouie p . 71
Due to health i s sues , Mr . Sachs only appeared in the initial
stages of the remand proceeding .
2
B. Defense witness p . 76
1. Dr . Andreas Sto l z p . 76
IV . DISCUSS ION p . 78
A. Burden o f proof and pos itions o f the
parties p . 78
B. NI ST-traceability p . 82
c. Importance of NIST-traceable
thermometer step p. 108
D. Undetected miscalibrations p . 114
E. Discus s ion of Baum and Alaouie
opinions p . 14 1
F. Discu s s ion of Brette l l opinions p . 154
G. Other states p . 162
H. Conforming product s lis t p . 170
v. FINDINGS OF FACT AND CONCLUSIONS OF LAW p . 175
A. Findings o f f act p . 175
B. Conc lus ions of law p . 185
APPENDIX I - Order Appointing Special Master
APPENDIX II - Exhibit List
APPENDIX I I I - Transcript List
APPENDIX IV - Stipulations of Fact
3
I. INTRODUCTION
This report deals with the scientific re liability of breath
test readings used for evidential purposes in DWI c a s e s . For
many years , such readings have been admis sible in evidence only
if the State proves , among other things , that the breath tes ting
device which produced the reading was in good working order .
That proof is accomplished, in large part , by the production of
a certification by a State Police coordinator who performed the
most recent c alibration of the breath testing device . Such
c alibrations are required at intervals not to exceed six months ,
and the coordinator ' s certification must attest to the fact that
a l l steps in the calibration proc e s s were performed acc ording to
the authori zed procedure .
The breath testing device presently in use in New Jersey is
the Alcotest 7 1 1 0 MKI I I -C ( the Alcotest , the 7 1 1 0 , or the
instrument ) . One of the mandatory steps in the authorized
calibration procedure requires coordinators to measure the
temperature of the simu lator solutions used in the calibration
proc e s s with a thermome ter that produces temperature
measurements traceable to the National Ins titute of Standards
and Technology ( NIST ) . I f the NI ST-traceable thermometer does
not produce temperature readings for a l l simulator s olutions
4
that are within the required range , the coordinator is not
permitted to proceed further with the c a l ibration proce s s .
The State a l leges that one coordinator failed to perform
this step in c a l ibrating three Alcotest 7 1 1 0 instruments , but he
si gned certi f i c ations falsely attesting that he performed a l l
required steps , including u s e of the NI ST-traceable thermometer .
The State determined that over 2 0 , 0 0 0 evidential breath samples
were taken using breath testing devices cal ibrated by that
coordinator over the course of several years .
The State made an app l ication directly to the Supreme
Court , elaborating on the information discussed above and
asserting that fai lure to perform the NI ST-traceable thermometer
step would not undermine or c a l l into ques t ion the scientific
rel iab i l ity of breath test results from those devices ,
notwithstanding that the step is mandatory and legally required
as a prerequisite to admi s s ion in evidence of breath test
results . Because of the mu ltitude of c a s e s potentially
af fected , a l l of wh ich would contain a common i s sue , the St ate
asked the Court to appoint a Special Master to deal with that
is sue i n a s ingle proceeding .
The Court granted the State ' s request and is sued an order
on Apr i l 7 , 2 0 1 7 appointing me as the Spe c i a l Maste r , directing
that I conduct an evidentiary hearing and , after hearing the
5
arguments of the partie s , make findings of fact and conclus ions
of law to be submitted in a written report upon the fol lowing
question :
Does the fai lure to test the s imulator
solutions with the NIST-traceable digital
thermometer before c a librating an Alcotest
machine undermine or c a l l into question the
scientific re liabi l ity of breath tests
subsequently performed on the Alcotest
machine?
[ Appendix I . ]
For the reasons set forth in this report , I answer that
question in the a f f irmative .
II . BACKGROUND
A. and factual of breath in New
For over f ifty years , the results of evidentiary
breath-testing ins truments have been used to estab lis h the blood
alcohol concentration ( BAC ) of individuals who have operated
motor vehic les in viol ation of N . J . S . A . 3 9 : 4 - 5 0 . State v .
6 4 N . J . Super . 2 6 2 , 2 6 8 ( App . Div . 1 9 6 0 ) ( holding that
" [ t] he Drunkometer is suff ic iently established and accepted as a
scientifically rel iable and accurate device for determining the
alcoholic content of the blood to admit tes timony of the reading
obtained upon a properly conducted test" ) . Breath testing "has
the advantage" over blood testing "of prompt and easy
6
administration by non-medic al ly trained personne l and with
relatively inexpensive equipment . " State v . 42 N.J.
146, 170 ( 1964 ) ( referencing the drunkometer , the alcometer , the
breathalyzer , the drunkote ster and the intoximeter and noting
that " [ a] l l are now generally s c ientifically recognized as
sufficiently rel iable '' ) .
Proof that the breath-testing instrument used was in good
working order has always been a key foundational requirement of
admi s s ibil ity . Mi l ler , 6 4 N . J . Super . at 270
( setting as ide conviction for lack of foundational proof and
holding that " [ a] s a minimum . . . the State should prove
( unless such proof is waive d ) that the operator was qua lified ,
that the machine and its components were in proper conditio n ,
and that the test was properly administered" ) . In the
Supreme Court cautioned :
It is , of cours e , most es s ential , in view of
the heavy impact the result can have , that
proper adminis tration of the te s t be c learly
e s tablished before the reading i s admitted
in evidenc e . This includes full that
the was in order , the
operator qua l i f ied and the test given
correct ly .
4 2 N . J . at 1 7 1 ( emphas is added ) . ]
I n 1 9 8 4 , the Supreme Court rej ected an argument that
certain bre athalyzer mode l s were insuf ficiently rel iable due to
potent i a l radio frequency interference ( rf i ) affecting breath
7
test result s . Romano v . 96 N . J . 66, 72 ( 19 8 4 ) . The
Romano Court held that breathalyzers continued to be
" s c ientif ica lly reliable and accurate devices for determining
the concentration of blood a lcoho l " and that " [ s] uch s c ientific
reliab i lity shall be the sub j ect of j udicial not ice in the tri al
of a l l c a s e s under N . J . S . A . 3 9 : 4-50 . " Ibid . The Court
explained that breathalyzer test results were admi s s ib l e where
the State e s t abli shed that "(l) the equipment was in proper
order - that it was periodi c a l ly inspected in accordance with
accepted procedures; ( 2 ) the operator was qua l i f ied to
administer the instrument - that thes e qual ifications as a
breathalyzer operator were properly cert ified ; and ( 3 ) the test
was given correctly - that it was administered in accordance
with the official instructions for the use of the instrument . "
I d . at 8 1 . The State bore the burden o f estab l i shing these
conditions of admi s s ibility by c lear and convincing evidenc e .
I d . at 8 9 - 9 1 .
The Romano Court noted that , " under the most unusual
circumstanc e s , which are h i ghly unlikely to occur , " rfi could
interfere with breath test results , but it held that various
procedures and prec autions , inc luding continuing "the current
practice of banning hand-held transmitters from any are a in
8
close proximity to the breathalyzer ins trument , " sufficiently
safeguarded against rfi . I d . at 7 2 -7 3 , 8 3- 8 3 .
The Court r e j ected another cha l l enge to the sc ientific
reliab i l ity of the breathalyzer in State v . 117 N . J . 450
( 1990 ) . There , the defendants as s erted that "because people
have broadly divergent ratios of breath alcohol relative to
blood a lcoho l , the 2 1 0 0 : 1 partition ratio" used by the
breathalyzer was inaccurate and rendered its test results
scienti f ica lly unre l iable . Id . at 4 5 1- 5 2 . The Court rej ected
this argument and found that "breathalyzer testing is a
practical and reasonably accurate way o f f u l f i l l ing the
Leg i s l ature's intent to punish drunk drivers . " I d . at 4 5 2 .
For decade s , New Jersey used breathalyzer instrument s , but
those devices would eventually "become technologic a l ly outdated ,
with the result that replacement parts are no longer avai l able
and the machines themse lves , when they f a i l , cannot be repaired
or replaced with l ike e quipment . " State v . 194 N . J . 5 4 ,
64 ( 2008 ) . "Faced with an increas ingly dif ficult s ituation , the
Attorney General ' s office began to cons ider alternate devices to
use for breath-testing purpos es . '' Ibid .
To replace the breathalyzer , the Attorney General's office
selected the Alcotest 7 1 1 0 . Ibid . The Alcotest i s a breath
testing instrument , manufactured and marketed by Draeger Safety
9
Diagnostics Inc . ( Draeger ) . The Alcot es t was approved as a
method o f chemic al breath tes ting by the Attorney General
pursuant to N . J . A . C . 1 3 : 5 1-3 . 5 and was f irst uti l i zed in New
Jersey in December 2 0 0 0 as part of a year-long pi lot pro j ect in
Penns auken , Camden County . See State v . 3 7 0 N . J . Super .
3 4 1 , 3 4 5 ( Law Div . 2 0 0 3 ) .
The scientific reliability of the Alcotest was addressed by
the Law Division j udge in fol lowing an appl ication by the
C amden County Prosecutor for a consol idated j oint proof hearing
as to numerous cases pending in Pennsauken . Ibid . On December
1 2 , 2 0 0 3 , the court found that " [ t] he reportable readings
produced by the 7 1 1 0 within the establi shed tolerances are
s c ient if ic a l ly accurate and reliable and therefore will be
admitted into evidence without the need for expert testimony , "
with the qua l ification that " no person who delivers a breath
s ample of at least . 5 l iters may be charged with refusal . " Id.
at 359 . The court focused primarily on ( 1 ) the " infrared
( IR ) absorption ana l ysis and elect rochemical ( E C ) cell
technology analys i s " used by the instrument to measure ethanol
in a breath s ample , and ( 2 ) the " breath testing sequenc e " used
by the police when administering a breath test to an individual
subj ect . The court did not discuss the proc e s s involved
in p l ac ing an instrument into service or performing periodic
10
c a l ibration check s , and it is not c lear whether any information
on this i s sue was presented to the court .
Fol lowing the dec i s ion , the Alcotest instrument was
utili zed county-wide in Middl es ex County and in s ome
municipalities in other countie s , and Draeger created revised
fi rmware' for use in the instrument . Chun , 1 9 4 N . J. at 6 6 . When
twenty defendants charged in various Middlesex County
munic ipalities with driving whi l e intoxicated challenged the
admi s s ib i l ity of the Alcote s t results in their respective
proceedings , ( 1 ) the Law Division cons o l idated the matters and
denied the State's motion to recogni ze as binding
authority , ( 2 ) the Appe llate Divis ion granted the State's motion
for leave to appe a l , and ( 3 ) the Supreme Court certified the
pending appeal pursuant to Rule 2 : 1 2 - 1 . I d . at 6 7 .
By order dated December 1 4 , 2 0 0 5 , the Supreme Court
remanded the Chun matter to a Special Maste r , retired Appe l late
Division Presiding Judge Michael Patrick King , to conduct a
plenary hearing on the rel iabil ity of Alcotest breath
instruments . Ibid . Judge King heard testimony over the course
of four months and , on February 1 3 , 2 0 0 7 , i s s ued a report
Brian Shaffer , a technic a l specialist at Draeger , testified
that " f irmware " is " s oftware that is employed to run on a
specific hardware " a s opposed to "many d i f f e rent types of
hardware " ( 9T 5 8 ) .
11
concluding that the Alcotest i s generally s c ient i f ical l y
reliab l e , but recommending that several changes be incorporated
( King SMR) . 3 I d . at 6 9 . F o l lowing a remand and additional
hearings to addr e ss f irmware-re l ated evidence that was not
before the Spec i a l Master in the original hearings , Judge King
i s sued a supplemental report on November 8 , 2 0 0 7 , making some
further recommendations but concluding that the additional
evidence presented did not a lter his f inding that the Alcotest
is scienti f i ca lly reliable ( King SMR I I ) . I d . at 70 . The
firmware being u t i l i zed at the time of the Chun dec i s ion was
"New Jersey Firmware version 3 . 1 1 . " I d . at 8 2 . That same
firmware ve rs ion i s being u t i l i zed today ( 1 0 T 1 2 9 ) . '
Judge King ' s initial report can be found at State v .
2 0 0 7 N . J . LEXIS 3 9 ( Feb . 1 3 , 2 0 07 ) ; however , the pagination of
the onl ine version differs from the original report . The c ites
herein are to the origina l .
Pb = State ' s Proposed F indings of Fact and Conclusions of
Law
Db = Defendant ' s Proposed Findings of Fact and Conc lus ions
of Law
Rb = Re i s ig ' s letter j o ining defendant's f i l ing
Ab = New Jersey Bar Association ' s Proposed F indings of Fact
and Conc lusions of Law
Mb = Menzel's Proposed Findings of Fact and Conc lus ions of
Law
lT = transcript of July 1 3 , 2 0 17 conference
2 T = transcript of August 1 7 , 2 0 1 7 conference
3 T = transcr ipt of September 1 9 , 2 0 17 conference
4 T = transcr ipt of October 1 2 , 2 0 17 conference
ST = transcript of November 2 , 2 0 1 7 conference
6 T = transcript of December 1 4 , 2 0 17 demons tration
7T = transcript of January 3 , 2 0 1 8 hearing
12
On March 1 7 , 2 0 0 8 , adopting most but not a l l of Judge
King's recommendations , the Supreme Court held , "We have no
doubt that the device , with the safeguards we have required , i s
suffic iently s c ientifically rel iable that its reports may be
admitted in evidence . " I d . at 1 4 8 .
The dispute in Chun centered primarily on the defense
posit ion that the sc ientific theory behind a l l breath test
results was f lawe d , so the Alcotest could not accurately
determine BAC even if functioning properly ( King SMR at 2 0 4-
0 5; 2 1 3 - 2 2 ) . In additio n , the defendants raised concerns that
the source code underlying the Alcotest firmware was
unne c e s s ar ily comp lex , contained numerous errors , and had not
ST =
transcript of January 5 , 2 0 1 8 hearing
9T =
transcript of January 8 , 2 0 1 8 hearing
lOT =
transcript of January 9 , 2 0 1 8 hearing
l lT =
transcript of January 1 0 , 2 0 1 8 hearing
12T =
transcript of January 1 1 , 2 0 1 8 hearing
13T =
transcript of January 1 6 , 2 0 1 8 hearing
14T =
transcript of January 1 7 , 2 0 1 8 hearing
15T =
transcript of January 1 8 , 2 0 1 8 hearing
16T =
transcript of January 2 2 , 2 0 1 8 hearing
17T =
transcript of January 2 4 , 2 0 1 8 hearing
18T =
transcript of January 3 0 , 2 0 1 8 hearing
19T = transcript of March 2 2 , 2 0 1 8 oral argument
13
been developed in accordance with any recogni zed standards ( King
SMR II at 3 6 - 5 2 ) .
Evidence regarding the proc es s central to the current
dispute , namely the semi-annual calibration check proc e s s , was
presented to Judge King during the Chun hearings , but it was not
litigated in detail and the defe ndants did not dispute the
sufficiency of that process as described by State witne s s e s . '
Dr . Thomas A . Brette l l , Director of the O f f i c e of Forensic
Sciences for the New Jersey State Police ( OF S ) from 2 0 0 1 to
March 2 0 0 7 , testified i n the Chun hearings that he was involved
in selecting the Alcotest device over other devices , and he "set
up the policies and procedures on the inst rument" 34T14-
3 4T 1 6 ; 3 6T 6 9 ; 3 6 T 7 6 ; 4 1T 6 0 ; 5 2 T4 2 ) . 6 H e testi fied that his
"recommendations for the cal ibration testing and checking
l inearity , that ' s a l l part of the qual ity control program" ( Chun
4 4T 8 1 ) .
No written cal ibration che c k procedure was made part of the
record in Chun , although Brett e l l testified generally about the
5
Because the cal ibration check procedures are at the center of
the i s sue before me , spec i f i c a l ly whether s kipping a step in
those procedures undermines or c a l l s into question the
scientific rel iabil ity of l ater breath t es t s per formed on the
instrument , a detailed descript ion of those procedures i s
included i n Section I I ( C ) .
' "Chun" transcript cites refer to the transcripts l isted in
Appendix A to the King SMR .
14
procedure and Kevin M . Flanagan , a Sergeant with the New Jersey
State Police ( NJSP ) who trained and supervised the coordinators
at the time of the Chun hearings , testified about the procedures
in more detail 3 6 T72 - 3 6T7 3; 5 2 T 6 - 5 2 T l l ; 5 4T 2 0 - 5 4 T 2 9 ; 5 5 T 6 4 -
5 5 T 6 8 ; 5 7T 5 - 57T6; King SMR a t 4 5 ) .
Both Brette l l and Fl anagan testified generally regarding
the use of the Ertco-Hart digital thermometer in the c a l ibration
check proc e s s . Brettel l noted that the Ertco-Hart thermometer
is a " N IST traceable thermometer" used only by coordinators
3 6T72 - 3 6 T 7 3 ) . Fl anagan testified that the Ertco-Hart
thermometer i s an " ( e] xternal device that is used" by the
coordinators " j ust corroborating temperature of the s imulator
prior to it being used on the Alcote s t " ( Chun 57T5 ) . He
testified that the thermometer is "NIST traceab l e " and the
" ( c] al ibration is checked by Draeger " 5 7 T5 ) . Brettel l
acknowledged that the annual c a l ibration certificate for the
Ertco-H art thermometer was one of the " f airly fundamental
documents that give inf ormation as to the accuracy as defined by
New Jersey for each of the s e unit s " 3 6 T73 ) .
Thus , the c a l ibration check proc e s s that Brett e l l developed
we l l prior to the 2 0 0 6 hearings in Chun bec ame part of the
Special Master ' s recommendation and was adopted by the Supreme
Court almost without a l teration , except that the c a l ibration
15
check had to be performed once every s ix months instead of once
a year .
Notwithstanding the abs ence of dispute regarding the
suffic iency of the State ' s calibration check procedure s , the
Chun Court c learly regarded the process as critical . The Court
noted that its determination of scienti fic rel iabil ity of the
Alcotest was " grounded, in part , on our expectation that there
wi ll be proof that the particular device " used in a sub j ect ' s
breath test "was in good working order . " I d . at 1 3 4 . The
lion ' s share of that proof comes from documents related to the
calibration check proce ss .
The Chun Court noted :
Calibration of the machines involves
attaching the machine to an external
simu lator which uses a variety of solutions
of known alcohol concentrations to create
vapors that approximate human breath . By
exposing the IR and EC mechanisms to thes e
differing concentrations , and by analy z ing
the device ' s abil ity to identify accurately
each of those s amples within the acceptable
range of toleranc e , referred to as a
linearity t e s t , the coordinator is able to
ensure that the machine is corre ctly
c al ibrated .
[ I d . at 8 4 . ]
The foundational docume nts that the Chun Court held " need
to be entered into evidence " in each case to demonstrate the
good working order of the instrument are the "most recent
16
cal ibration report prior to a defendant ' s t es t . . • and the
credentials of the coordinator who per formed the calibration , "
together with the most recent new standard solution report prior
to a defendant ' s te s t , and the certificate of analysis of the
0 . 1 0 s imulator solution used in a defendant ' s control tests ( key
foundational documents ) . I d . at 1 4 5 . The Court also identified
nine other categories of foundational documents that mu st be
produced in discovery because they "are part and parcel of
ensuring that the machine i s in good working order , " although
their admis sion i s not routinely required ( di s covery
foundational documents ) . I d . at 1 3 5 , 1 4 4 -4 5 . All but one of
the dis covery foundational documents are certif icates attesting
to the accuracy of equipment or solutions used during the
cal ibration check proce s s . Ibid . The other discovery
foundational document i s the new s tandard s o lution report
generated at the end of the c alibration check proce s s . Ibid . 7
Thus , documents generated by or related to the cal ibration check
proc e s s are e s s ential in es tablishing the good working order of
the Alcotes t .
In some c a s e s , this report might be the " most recent new
standard solution report prior to a defendant ' s t es t " and , thus ,
a key foundational document rather than a discovery foundational
document .
17
A few years after in State v . Holland , 4 2 2 N . J.
Super . 1 8 5 ( App . Div . 2 0 1 1 ) and State v . Holland ,
4 2 3 N . J . Super . 3 0 9 ( App . Div . 2 0 1 1 ) the Appe l l ate
Divi sion addressed the State ' s change from the Ertco-Hart
thermometer to a thermometer manufactured by Control Company .
Evidence in this c a s e s hows that , in December 2 0 0 8 , the OFS
evaluated the requirements for a thermometer to use in the
c a l ibration check proce s s . A December 2 3 , 2 0 0 8 memo from Dr .
Howard J . Baum, then-Director of the OFS and a witnes s in both
Holland and this case , state d :
Calibration o f the Alcote s t 7 1 1 0 MKI I I -C
requires accurate temperature determination
of the s imulator solutions . Currently the
ERTCO Hart digital thermometer is used for
this purpos e . However other digital
thermometers wi l l also suffi ce .
The criteria for acceptab i l ity of the
digital thermometer are as follows :
( 1 ) Traceabi lity to a NIST ( National
Institute of Standards and Technol ogy )
st andar d ; ( 2 ) C a l ibration of the digital
thermometer by an accredited laboratory
complying with I SO 9 0 0 1 , I SO/ IEC 1 7 0 2 5 , and
ANS I /NCSL Z 5 4 0 - 1 ; ( 3 ) Use of the digital
thermometer between the C a l ibration Date and
the Calibration Due ( Expiration ) Date ;
( 4 ) Resolution of at least 0 . 0 1 ° C ;
( 5 ) Accuracy o f at least ± 1 ° C between 0 . 0 to
100 . 0 °c .
Since a digital thermometer from VWR ( Model
6 1 2 2 0 - 6 0 1 ) and a digital thermometer from
Control Company ( Model 4 0 0 0 ) meet or exceed
18
the criteria li sted above, they are
acceptab le for temperature determination .
[ S - lOC; D-2 . ]
The OFS se lected a NI ST-traceable digital thermometer
manu factured by Control Company ( CC thermometer ) .
In two defendants chall enged the s u f f ic iency of
the State ' s foundational proofs as to the Alcotest ins truments
used in their respective breath tests because the State had
provided a Control Company " Traceable Certificate of Cal ibration
for Digital Thermometer " rather than the " Draeger Safety, Ertco-
Hart Digital Temperature Measuring System Report of Cal ibration,
NIST traceabil ity" that was identif ied as a foundational
document in Chun . Holland I, 4 2 2 N . J . Super . at 1 9 3 -9 4 . The
Holland I court held that using a non-Ertco-Hart thermometer
during the cal ibration proce s s did not nece s s ar il y violate the
Chun Court ' s strictures, and it remanded for a f i nding as to
whether the CC thermometer was comparable to the Ertco-Hart
thermometer . Id . at 2 0 0 .
On remand, the Law Divis ion j udge conducted a three-day
hearing and concluded that the CC thermometer was comparable in
a l l material respects to the Ertco-Hart thermometer . Holland
4 2 3 N . J . Super . at 3 1 2 . The Appe l l ate Divis ion agreed and
held that the Control Company certi ficates produced in the
defendants ' cases were " f acially valid and s at is fie [ d] the
19
requirements a s a foundational document as required by Chun . "
Id. at 319 .
I n 2 0 1 3 , the Supreme Court addre s s ed certain f irmware
revisi ons ordered in Chun that had not yet been implemented .
State v . 2 15 N . J . 4 8 9 , 492 ( 2 0 1 3 ) ( Chun I I ) . As relevant
here , the ordered revisions to the firmware woul d have included ,
on the documents generated during each c a l ibration che c k ,
( 1 ) t h e " s erial number of the Ertco-Hart digital temperature
measuring system uti l i z ed , " and ( 2 ) " the temperature probe
serial number and value" for both the black key and agency
probe . 1 9 4 N . J . at 1 5 2 . These revis ions were never made
to the f irmware , and the Chun I I Court excu sed the State from
comp l ying with these and other firmware revis ions that had been
contemp lated . '
The record in Chun and this c a s e establish that even though
the f irmware was not altere d , the serial numbers for the NIST
traceable thermometer and temperature probes used during a
c a l ibration check have been recorded by hand from about Apri l
2 0 0 6 onward . O n April 3 , 2 0 0 6 , Stephen H . Monson , D . A . G . ,
circul ated a memo to the head of the ADTU entitled "Legal
Advice : Alcotest 7 1 1 0 MK I I I-C , Temperature Probe Documentation"
( April 2 0 0 6 memo ) , ( 1 ) noting that , because the instrument
itself did not record and print out " the serial number and probe
value of any spec if ic probe " used , " some de fense counsel" were
arguing that the absence of this information was a basis "to
exclude otherwi s e valid chemical breath test result s , "
( 2 ) opining that "such a c l a im i s wholly lacking in both factual
and legal merit , " but ( 3 ) neverthe l e s s recommending as "a
temporary course of corrective action" that the s erial numbers
for the NIST -traceable thermometer and both temperature probes
20
B. State v . and
Marc w. Denn is was a coordinator in the New Jersey State
Police ' s Alcohol Drug Test ing Unit ( ADTU ) , and in that capacity
he perf ormed semi-annual c a librations on Alcotests over the
course of seven years in municipalities in five counties ,
spec ifically Middlesex , Monmouth , Ocean , Somerset , and Union
( Honig Cert . at� 3 ) . 9
be hand-printed on the documents generated during the
cal ibration proce s s ( D- 1 6 ) .
Then , when F l anagan testi fied in Chun in November and December
2 0 0 6 , he noted the "interim policy" was to record temperature
probe s erial numbers by hand , and that the "intention with the
next f i rmware upgrade" was to have the c a l ibration records
report "the probe serial number and the probe value " and "the
Ertco-Hart serial number" 5 3T 3 6 ; 6 0T2 4 ) .
On March 3 , 2 0 1 3 , Dr . Ali M . Alaouie sent a memo to the head
of the ADTU , referencing the April 2 0 0 6 memo and requiring
coordinators to u s e papers for the c a l ibration documents with
the words "Black Key Temperature Probe Serial , " Digital NIST
Temperature Measuring System Serial , " and "Temperature Probe
Serial Number" pre-printed , together with a bl ank on which the
coordinator can record the respective serial number ( D- 1 5 ) . The
format with the pre-printed pages remains in u s e , as
demonstrated by K limik ( S-lM ) .
Although the probe value does not appear on the c a l ibration
documents , the probe value for each probe is written on the
Draeger certific ate of accuracy for that probe , and these
certi fi c ates are inc luded in discovery material s .
Certification by E lie Honig , Director o f the Divis ion of
Criminal Justice , in Support of Motion for Direct Certi ficatio n ,
Relaxation o f Court Rule s , Notice t o the Bar , and Appointment o f
Special Maste r , dated October 1 7 , 2 0 1 6 .
21
On September 1 9 , 2 0 1 6 , Dennis was charged with violations
of N . J . S . A . 2 C : 2 8 - 7 ( a ) ( l ) ( tampering with pub l i c records or
inf ormation ) and N . J . S . A . 2 C : 2 1 - 4 ( a ) ( f a l s i fying or tampering
with records ) ( Honig Cert . at� 2 ; S-4; S-4A ) . The comp l aint
stated that Dennis did :
KNOWINGLY MAKE A FALSE ENTRY IN A RECORD
BELONGING TO , OR RECEIVED OR KEPT BY THE
GOVERNMENT FOR INFORMATION OR RECORD , THAT
BEING AN ALCOTEST 7 1 1 0 CALIBRATION RECORD
AND CERTIFICATE REQUIRING A SIGNED TRUE
STATEMENT THAT CALIBRATION CHECKS WERE
PERFORMED CONSISTENT WITH THE CALIBRATION
CHECK PROCEDURE FOR ALCOTEST 7 1 1 0 AS
ESTABLISHED BY THE CHIEF FORENSIC SCIENTIST
OF THE DIVIS ION OF STATE POLICE , WHEN HE HAD
NOT PERFORMED THE PROCEDURE CONSISTENT WITH
THOSE STANDARDS , WITH THE PURPOSE TO DEFRAUD
OR INJURE ANYONE , IN VIOLATION OF N . J . S . A .
2 C : 2 8 - 7 A ( l ) ( A THIRD DEGREE CRIME ) .
UTTER A WRITING OR RECORD KNOWING THAT IT
CONTAINED A FALSE STATEMENT OR INFORMATION
WITH PURPOSE TO DECE IVE OR INJURE ANYONE OR
TO CONCEAL A WRONGDOING , THAT BEING AN
ALCOTEST 7 1 1 0 CALIBRATION RECORD AND
CERT I F ICATE REQUIRING A S I GNED TRUE
STATEMENT THAT CALIBRATION CHECKS WERE
PERFORMED CONSISTENT WITH THE CALIBRATION
CHECK PROCEDURE FOR ALCOTEST 7 1 1 0 AS
ESTABLISHED BY THE CHIEF FORENSIC SCIENTIST
OF THE DIVIS ION OF STATE POLICE , WHEN HE HAD
NOT PERFORMED THE PROCEDURE CONSISTENT WITH
THOSE STANDARDS , IN VIOLATION OF N . J . S . A .
2 C : 2 1 - 4A ( A FOURTH DEGREE CRIME ) .
[ Exhibit A to Honig Cert . ]
Spec i f ically , the State a l leges that Dennis "fai led to use the
NIST-traceable digital thermometer prior to s tarting the
22
ca libration " of Alcotest instruments in Asbury Park City , Long
Branch City , and Marlboro Township on October 6 and 7 , 2 0 1 5 , but
that he neverthe l e s s certified that " [ p)ursuant to and
cons istent with the current ' Ca l ibration Check Procedure for the
Alcotest 7 1 0 0MKI I I -C' as established by the Chief Forensic
Scienti st , I performed a c a l ibration check on the approved
ins trument ident i f i ed on this certificate" ( Honig Cert . at� 5 -
�
6 ; S - 4 ; S-4 A) .
Dennis was indicted on December 1 4 , 2 0 1 6 , and a superseding
indictment was returned on June 2 7 , 2 0 1 7 , charging him with one
count of third-degree tampering with pub l ic records and one
count of fourth-degree f a ls ifying records ( S-4 ; S-4A ) . 10 Dennis ' s
criminal proceeding is ongoing .
On September 8 , 2 0 1 6 , about e leven months after Dennis
al legedly failed to use the NIST-traceable digital thermometer
when c a l ibrating three spec ific Alcote s t devices , and e leven
days before he was formal ly charged with a crime for that
failure , defendant E ileen Cass idy pl ed gui lty in Spring Lake
Munic ipal Court to driving under the inf luence ( Honig Cert . at
Exhibit D ) . Although it was not one of the three Alcotest
devices giving rise to the charges against Denni s , the device on
10
The original indictment al s o contained a count of second-
degree official misc onduct , in violation of N . J . S . A . 2C : 3 0 - 2 ,
but that count was dismis sed ( S -4 ) .
23
which Cassidy had provided an evident ial breath s ample had als o
been cal ibrated by Dennis , and he certified that he had fol lowed
the establi shed procedure in performing that cal ibration ( Honig
Cert . at Exhibit D; Appendix IV at ii 3 - 9 ) .
On September 1 9 , 2 0 1 6 , the s ame day that Dennis was
criminally charge d , Elie Honig , the Director of the Division of
Criminal Justice o f the New Jersey Attorney Genera l ' s O f f ic e ,
wrote to the Honorable Glenn Grant , Acting Director o f the
Administrative Office of the Courts ( AOC ) , advis ing the AOC of
the charge s against Dennis and the bas i s for them ( AOC letter ) .
Honig questioned the sc ient ific nec e s s i ty o f the NI ST-traceable
digital thermometer step in the estab lis hed procedure , but
acknowledged that the step was required by the Supreme Court
pursuant to Chun . Without referencing any particular case ,
Honig s t ated that " [ t] he State therefore anticipates that
additional legal challenges may be f i led regarding the results
of any Alcotest instrument that had been cal ibrated in the past
by Denni s " a s to some of the " identi f ied 2 0 , 6 6 7 individuals who
provided evidentia l breath samples on thos e instruments . " Honig
stated that " [ g] iven potential legal chal lenges and the
underlying s c ie nt ific nature of any potential chal lenge s " the
Supreme Court should " i s sue a Notice to the Bar and appoint a
24
Spec ial Master to handle any l itigation ari s ing from the
c ircums tanc e s set forth in this letter . "
One week l ater , on September 2 6 , 2 0 1 6 , based on the
revelation of the criminal charges against Dennis and the AOC
letter , Cas s idy moved in Spring Lake Municipal Court to withdraw
and vacate the guilty p le a she had entered e arl ier that month
{ Honig Cert . at� 1 2 , Exhibit D ) .
On October 4 , 2 0 1 6 , Judge Grant advised the State that he
had reviewed the AOC letter but that a request for a spec i a l
master should b e made directly t o the Supreme Court through "an
appropriate acti on; for instance , direct certifi cation . "
On October 1 7 , 2 0 1 6 , the State applied to the Supreme Court
to ( 1 ) take direct certific ation of Cassidy ' s municipal court
motion to vacate , and ( 2 ) appoint a spec ial mas ter . The State
referenced Cass idy's spec i f i c case , but then stated :
The State antic ipates that many additional
legal chal lenges wil l be fil ed regarding
breath test results from Alcote s t
instruments that were calibrated b y Denni s .
As a coordinator for over seven years ,
Dennis c a l ibrated instruments in Middlesex ,
Monmout h , Ocean , Somer set , and Union
Counties . The State has identif ied 2 0 , 6 6 7
individuals who provided evident i a l breath
s ampl e s on those ins trument s . Underscoring
any potential legal challenge to the
evidentia l breath s amples provided wi l l be
the s ame s c ientific is sue as that presented
in the captioned matter : whether the
failure to use a NIST-traceable digital
thermometer prior to beginning the
25
c a l ibration of the Alcotest instruments
undermined the s c ientific reliab i l ity of the
instrument .
The State argued that direct certi f ic ation and appoi ntment
of a spec ia l master would result in "a c lear s c ientific ruling
at the out s e t " that would " provide immediate guidance to
municipal courts concerning the underlying s c ientific i s sue" and
would " ensure predictable, uniform results throughout the
State . "
As to C a s s idy, the State has stipulated that, on July 10,
2 0 15, Dennis rec a librated the Alcotest 7 1 1 0 on which she
provided a breath sample ( Appendix IV at�3 ) . The State has
also s t ipulated :
It cannot be corroborated whether Sgt .
Dennis checked the temperature of the
s imulator so lutions with the Control Company
NI ST-traceable digital thermometer after
a l lowing the s imulators to heat to the
required temperature prior to beginning the
recal ibration of Spring Lake Borough ' s
Alcotest ins trument with Serial Number ARXB-
0 0 7 6 as is required by the Cal ibration
Protoco l .
[ Appendix IV at� 6 . ]
On October 3 1, 2 0 1 6 , C a s s idy opposed direct certification
and the appointment of a special master .
On November 1 0, 2 0 1 6, the Court invited the New Jersey
State Bar Association ( NJSBA ) , the Association of Criminal
Defense Lawyers of New Jers ey, and four attorneys who had
26
represented defendants in Chun to submit a response to the
State ' s pending motions , noting that "some of the relief
requested by the State may imp l icate the app l ication of certain
aspects of the Court ' s j udgment" in Chun . On January 1 9 , 2 0 17 ,
the Court invited the s ame entities and attorneys , a s well as
parties in the matter , to " submit written
recommendations regarding the scope of the t as ks to be performed
by a spec ia l master , should the Court determine to appoint one . "
On April 7 , 2 0 17 , the Supreme Court largely granted the
State ' s motion and appointed me to sit as Special Master ,
ordering , in pertinent part :
ORDERED that the matter is remanded to the
Special Master who wil l consider and decide
the fol lowing question , along with any other
questions that the Spec ial Master , in his
dis cretion , deems relevant to the
undertaking : "Does the failure to test the
s imulator solutions with the NIST-traceable
digital thermometer before c a l ibrating an
Alcotest machine undermine or c a l l into
question the sc ient i f ic reliabil ity of
breath tests subsequently per formed on the
Alcotest machine ?"
[ Appendix I . J
The Court a lso set May 8 , 2 0 17 , as the deadline for a l l
motions for participation i n the remand , and i t l e f t it t o me to
"determine the extent of participation of any person or entity
in addition to the State and defendant . " I rece ived and granted
motions to partic ipate in the remand from the NJSBA and three of
27
the attorneys who had been counsel in spec ifically Samuel
Louis Sachs , Matthew w. Re i s i g , and John Menz e l .
I held f ive case management conferences between July and
November 2 0 1 7 and addre s s ed various motions and discovery
dispute s .
On July 2 7 , 2 0 1 7 , the State f i led a motion asking me to
enter an order " directing the State to provide notice to the
2 0 , 6 6 7 individuals referenced in the State ' s motion to appoint a
Spec ial Master . " I denied the motion as beyond the scope of the
authority granted to me in the Court's order appointing me a
Spec ial Master , noting , however , that "[t] he den ial o f this
motion in no way impairs the abil ity of the State , if it
choos e s , to identify the potent ially af fected individu als or to
furni sh them with individual notice . " The State subs equently
provided notice to potentially af fected individuals .
On September 1 5 , 2 0 1 7 , C as s idy f iled a "Motion to Declare
Def endant as Indigent to Enable Def endant to apply to the Offic e
o f the Public Defender for Anc i l lary Services for the Cost o f
the Fees for the Defense Experts i n This Matter , Pursuant to
N . J . S . A . 2 A : l58A-1 . " Four days late r , C a s s idy f iled an amended
motion seeking expert fees and costs from " the State or the
Office of the Public Defender" ( motion for expert fees ) . On
October 1 9 , 2 0 1 7 , I is sued a dec is ion and order granting
28
defendant ' s motion to compel the State to pay the costs of
defense experts .
On October 1 7 , 2 0 17 , the State moved for a stay of
proceedings in other courts that raise i s sues potentially
af fected by the Supreme Court ' s u ltimate determination in this
case cases ) . On November 2 , 2 0 17 , I entered an order
genera lly s taying Denn is cases . On November 2 8 , 2 0 1 7 , I entered
a supplemental order providing that the prosecutor has the
affirmative obligation to determine whether a pending proceeding
is a Dennis case .
Discovery disputes included obtaining and reviewing in
camera both Marc Dennis's personnel file and the discovery in
his pending criminal matte r , and determining which materials
could be disseminated to counse l , sub j e c t to a protective order .
At the final c a s e management conference of November 2 ,
2 0 1 7 , I s c heduled the hearing to begin on Monday , December 4 ,
2017. However , over the Thanksgiving holiday , the State
delivered a late discovery submi s s ion , containing new and
voluminous material s . Al l de fense counsel strenuously ob j ected
to the u s e of these materials at the hearing . They asked that
either the material be barred or , alternativel y , a thirty-day
adj ournment be granted to al low them and their experts time to
analy z e and be prepared to ef fectively deal with the materials
29
at the hearing . The State did not ob ject to a thirty-day
adj ournment , and I chose that as the appropriate relie f .
I therefore adj ourned c ommencement of testimony by experts
unti l January 3 , 2 0 1 8 , and I scheduled an in-court demonstration
by a coordinator of an Alcotest calibration check procedure to
be held on December 1 4 , 2 0 1 7 . O n that date , the State presented
Trooper David Klimik , who demonstrated a c a l ibration check
procedure and testif ied in detail regarding the proce s s .
Beginning on January 3 , 2 0 1 8 and ending on January 2 2 ,
2 0 1 8 , the State presented four expert witne s s es : Brettell;
Shaffer; Baum, Director of the OFS from March 2 0 0 8 unt i l June
2 0 17; and Alaouie , a research s c ientist at the OFS .
The State had a l s o provided a report from Dr . Fiona Couper
of Washington State . However , despite numerous ef forts by the
court and the parties to accommodate Couper's sc hedule , the
State was unable to produce her for live tes timony . The State
requested that she be permitted to testify by e lectronic means
through a video teleconference . Defendant opposed this
procedure on the grounds that it would viol ate her confrontation
rights under the United States and New Jersey Constitutions . I
agreed with defendant's position and , by decis ion and order
dated December 2 8 , 2 0 1 7 , held that the State would need to
30
produce Couper l ive in court i f it wanted to rely on her
test imony . Couper did not appear .
Defendant produced one expert , Andreas Stol z , from Michigan
State Univers ity , who testified on January 2 4 , 2 0 1 8 . Defendant
had a l so provided expert reports from two additional expert s ,
but chose not to c a l l them .
I dealt with evidence i s sues on January 3 0 , 2 0 1 8 , and the
part ies and part ic ipating couns el submitted proposed findings of
fact and conclus ions of l aw on March 5 , 2 0 1 8 . At my reque s t ,
coun s e l appeared for l imited oral argument o n March 2 2 , 2 0 1 8 .
C. The c a l ibration check
The cal ibration check performed on the Alcotest by a
coordinator from the ADTU of the NJSP is e s sential to
establi shing that an in strument is in good working order . See
N . J . A . C . 1 3 : 5 1 -4 . 3 ( b ) ( requiring that each Alcotest instrument
in u s e in New Jersey undergo a c a l ibration check performed by a
coordinator when p laced into service initially or following
repa ir , within 1 8 2 days of the l a s t cal ibration check , or at any
time that a coordinator considers it "nece s s ary or otherwi s e
appropriate" ) . N . J . A . C . 13 : 5 1 - 2 . l and -2 . 2 spec ify the
requirements and qua l i f i c ations for a member of the NJSP to
become a coordinator , including "the knowledge to properly
perform • . . c a l ibration of approved instrument s , " but the
31
regulations do not desc ribe the specific procedures a
coordinator s hould use for a c a l ibration check.
No prior case in New Jersey has explored detai l s of the
periodic c a l ibration proc e s s and its relationship to the
e s s ential e l ement of proof that the particular instrument in
question was in good working order . In the Court noted
the importance of the proc e s s and the documents generated by it ,
but the spec if ics of the procedure were not in dispute . The
Holland court addre s s ed the proc e s s in s omewhat more detail but ,
again , the deta ils of the procedure and the importance of each
component of it were not in dispute . Here , the importance and
nec e s s ity of the NIST-traceable thermometer step is directly in
is sue . Because an understanding of the fu l l c a l ibration check
proc e s s is e s s ential to understanding the nec e s s ity of the NIST
traceable thermometer step , I address that proc e s s in detai l .
Brettel l developed the calibration check procedures for the
instrument , and the written " Ca l ibration Check Procedure for
Alcote st 7 1 1 0 MK I I I -C , " admitted into evidence as S - 3 2 , was
drafted by Brett e l l ( Ca libration Check Procedure ) ( 7T 1 5 ; 7T 6 3 -
7T6 5 ) . The document was l a s t revised o n December 1 3 , 2 0 0 4 , and
the procedures it delineates are s t i l l appl i c able to c a l ibration
checks perf ormed by ADTU coordinators today . Brette l l could not
recall how many versions preceded the final version in 2 0 0 4 or
32
when the first version was drafted , but he thought there had
been fewer than five revisions ( 7 Tl00-7 Tl03 ) . The first version
must have been drafted by December 2 000 , which is when the
Alcotest pi lot program began in Pennsauken . The requirement for
a NI ST-traceable thermometer was in every revision ( 7 T 1 04 ) .
After performing a cal ibration check on a specific
instrument , the coordinator signs a certification , attesting , in
pertinent part :
Pursuant to , and consistent with , the
current " C a libration Check Procedure for
Alcotest 7 1 10 , " as established by the Chief
Forensic Sci e ntist of the Division of State
Police , I p erformed a cal ibration Chec k on
the approved i nstrument identified on this
certificate . The results of my Cal ibration
Check are recorded on this certificate ,
which consists of two parts on two pages :
Part I - Control Tests; and Part I I -
Linearity Tests . I certify that the
foregoing statements made by me are true . I
am aware that if any of the foregoing
statements made by me are wil lfully false , I
am subject to punishment .
[ S -lM . ]
The Cal ibration Check Procedure contains six numbered
paragraphs ( S - 3 2 ) . The NIST-traceable thermometer requirement
at issue in this case is referenced i n paragraphs one and two ,
which provide :
1) For purposes of these procedures , the
CU34 S imulator will be referenced as a
" C a l ibrating Unit." Al l references to
"Alcotest 7 1 10 " are intended to
33
indicate the Alcotest 7 1 10 MK I I I or MK
I I I-C . The Calibrating Unit
will be prepared with a new bottle of
0 . 10% solution from a lot certified by
the Chief Forensic Sc ientist , or
qualified designee , which will be run
as a control. At the same time , a
second Calibrat ing Unit will be
prepared with a new bottle of 0 . 04 %
solution certified by the Chief
Forensic Sc ientist , or qual ified
designee , a third Calibrating Unit will
be prepared with a new bottle of 0 . 0 8 %
solution certified b y the Chief
Forensic Scientist , or qualified
designe e , and a fourth Cal ibrating Unit
will be prepared with a new bottle of
0 . 1 6 % solution certified by the Chief
Forensic Sc ientist , or qualified
designe e . These will be run as a
quality assurance and l inearity check .
Ensure that each Calibrating Unit is
approp r i ately marked with the
concentration contained therein and
sealed with a plug or temperature probe
and tygon loop to seal inlet and
outlet . Allow a l l three
Units to heat for 1 hour and then check
the simulator with a NIST
traceable thermometer .
must be 34 Celsius or
minus 0 . 2 Connect the keyed
"coordinator's probe " to the Alcotest
7 1 10 and use the "PROBE" function to
"ADJUST" to the correct "probe value" .
2) Attach the 0.10% Cal ibrating Unit to
introduce a vapor sample directly to
the cuvette . The " coordinator ' s keyed"
temperature probe should be inserted in
the rubber grommet of the Calibrating
Unit . that the of
the Unit is 3 4 . 0
Celsius or minus 0.2
with the NIST thermometer.
Use the "CALIBRATE" function to perform
34
a c alibration of the unit . Follow the
Alcotest 7 1 10's prompts to enter data
for the Operator , Calibrating Unit , and
Solution . Upon completion of data
entry , the Alcotest 7 1 10 will obtain a
vapor sample from the Calibrating Unit
and will adjust its calibration based
on this " Known Standard . " This process
will output the "Alcotest 7 1 10
Calibration report . "
[ S- 3 2 ( emphasis added ) . ]
When questioned about developing the Ca libration Chec k
Procedure , Brett e l l said , " I put the steps in there to lay out
the best possible c alibration of the Alcotest instrument in my
mind" ( 7 T105 ) . On cross-examination , Brett e l l was pressed on
whether each and every step was scientifica l l y necessary . I
then interjected with the following :
THE COURT : Can you answer that directly?
Do you have a direct answer for that
question ?
THE WITNESS : He's using t he word
" nec essary " and I don ' t really want to
use that word , bec ause I don ' t think
it's a scientific word .
Q. Reliable , do you like that word? How
about reliable?
THE COURT : Were they collectively
scientific ally necessary , as opposed to
parsing one against the other?
THE WITNESS : Collective ly , they are
requirements that would be necessary
for c alibrating the instrument , yes .
THE COURT : Scientific ally ?
35
THE WITNESS : Scientifica l ly .
THE COURT : To e nsure scientific
reliabi l ity?
THE WITNESS : Yes .
[ 7Tl06-l to 1 8 ) .
On December 1 4 , 2 0 1 7 , ADTU coordinator Klimik appeared as a
witness for the State and gave a demonstration of a cal ibration
check from beginning to end ( 6 T ) . Coordinators such as Klimik
are tasked with ca librating designated Alcotest instruments in
municipalities in a particular region. Typ i c a l l y , each
coordinator per forms two c a l ibration checks per day , four days
per week ( 6 Tl60 ) .
Klimik demonstrated and exp l ained each step of the
c a l ibration check process in detai l , also answering questions
from counsel and from me ( 6 T ) .
He e xp l a i ned that , as a coordinator , he is assigned certain
equipment that he brings with him and uses at each c a l ibration
check he performs . This equipment consists of ( 1 ) three CU34
simulators , ( 2 ) a black key temperature probe , and ( 3 ) a CC
thermometer" ( 6Tl8 ; S - 1 B ; S - 1 C ; S - 1E ; S- 1 G ; S - 1 I ; S - 1 J ; S- 1K ) . He also
11
As noted above , when Chun was decided, the NIST-traceab l e
digital the rmometer used b y coordinators was manufactured by
Erto-Hart. 1 9 4 N.J . at 152 ; King SMR 1 3 9 ) . I n Holland ,
4 2 3 N . J . Super. at 3 1 2 , the Appe l late Division held that the CC
36
brings with him ( 1 ) bottles of s imulator solution with
concentrations of 0.0 4 , 0 . 0 8 , 0 . 1 0 , and 0 . 1 6 , and ( 2 ) a power
strip to use for his CU34 s imu lators ( 6 T2 0 ; 6T3 l ; S - 1 D ; S - 1A ; S -
lF ; S-lH ; S- lL ) .
The pol ice station or agency that operates the particular
Alcotest to be tested supplies , for the cal ibration che c k ,
( 1 ) the instrument itse l f , ( 2 ) one CU 3 4 , and ( 3 ) an agency
temperature probe . The agency also maintains a supply of
bottles of s imulator solution with a concentration of 0. 1 0 , one
of which the coordinator uses at the end of the calibration
check proc e s s for a s o lution change.
A CU3 4 , also known a s a c a l ibrating unit or a s imulator , i s
a device manufactured b y Draeger that accompanies , but i s
separate from, the Alcotest itself. The CU3 4 holds about a half
liter of l iqui d , and it resembles a mason j ar with a black top
that contains a motor , microproc e s s o r , and other components
( 9 Tl2 0 ; S - 1 B ; S-1 E ; S- 1G ; S - 1 I ) . The CU34 top plugs into a power
source and , on the underside extending into the s imulator
solution , it contains a propeller , heat source , and attached
probe to measure and ma intain the temperature of the solution
within the CU34 ( 9T l 2 0 - 9T l 2 1 ) . The top also has a hole through
thermometer "is comparable in a l l material respects to the
Ertco-Hart digital thermometer."
37
which the black key probe , agency probe , or NIST thermometer
will fit when being used by the coordinator. A CU3 4 does not
have a gauge , screen , or other device that displays the
temperature of the solution inside. Each CU3 4 is returned
annually to Draeger for recertification.
As Brettell testified :
The simulator , which is the c a l ibrati ng unit
for the Alcotest instrument s , is an
independent component. It sits outside the
i nstrument. And a l l of the readings that
the Alcotest takes are based upon that
c a l ibrating unit working properly.
It has to heat up the standard solution to
3 4 degrees, plus or minus . 2. And if it
doesn ' t , the instrument wi l l not b e in
ca l ibration. So it's very , very important
for the ca l ibrating unit to operate
proper l y , to be working properly.
[ 7 T 8 9 - 15 to 2 4 . ]
The CU3 4 is a "wet bath " simulator , meaning that it uses
l iqui d , known as simulator solution , rather than dry gas.
S imulator solution is water-based and has a " known concentration
of ethanol" ( 15T 1 9 2 ) .
New Jersey purchases the simulator solution through Draeger
from a non-Draeger vendor that provides the solution in lots of
1 400 bottles ( 15T75 ; 15T 1 9 4 ) . The vendor sends " the first two
bott les , the last two bott les , and four bottles from the middle"
38
of each lot to the OPS for analysis ( 15T75- 15T7 6 ) . 12 If the
solutions pass the test criter i a , the OPS issues a c e rtificate
and approves the lot for purchase by the State Pol i c e or other
agencies ( 1 5T 7 6 ; 15T 1 9 2 - 15Tl 9 5 ; 15T2 2 9 - 15T2 30 ) .
The CU 3 4 and simulator solution util i z e the principle of
" Henry's law , " which the Supreme Court has explained as follows :
Henry's l aw , i n physical chemistry , states
that when a liquid that contains a volat i l e
substanc e , such a s alcohol , makes contact
with air in a closed container and at a
known temperature , a certain amount of
alcohol wil l escape into the air space above
in the form of vapor . The rate at which the
alcohol vaporizes wi ll depend on the
concentration of the alcohol in the liquid
and on the temperature . The higher the
temperature , the more alcohol wi l l escape to
the vapor . When there is a fixed
temperature and concentration of alcohol , a
state of equ i l ibrium wi ll result in which
the amounts of alcohol in air and liquid are
static .
v. 1 1 7 N . J . 450, 459 ( 1 9 9 0 ) . ]
See also King SMR at 1 6 3 ( " Henry ' s law states that i n a c losed
system and at a given temperature , there is a fixed ratio
between a volatile substanc e , such as alcoho l , in a l iquid and
the same volatile substance in a gas . " ) .
12
At the t ime of the Chun hearings , the solution was
purchased i n lots of 1000 bottles , of which six were tested by
the OPS ( King SMR at 4 6 , 108 -09 ) .
39
The concentration of each simulator solution used by the
coordinator during the c alibration c he c k , 0.0 4 , 0 . 0 8 , 0 . 1 0 , and
0 . 1 6 , is such that , when the solution is heated to 3 4 ° C , plus or
minus a tolerance of . 2 ° C , and a l lowed to reach equi l ibrium, the
air between the top of the l iquid and the bottom of the CU3 4
l i d , known as the headspace , will conta in ethanol molecules of
the stated concentration , within a spec ified tolerance .
During each ca l ibration check , the coordinator uses two
temperature probes that plug into the back of the Alcotest
instrument , the black key probe assigned to the coordinator and
the agency probe used by the agency for breath tests and
solution changes between cal ibration checks . These probes have
"a spec i a l kind of resiste r " that has "physical properties that
change depending on temperature" ( 9 Tll8 ) . When the " key" end of
a temperature probe is plugged into the instrument and the metal
probe end is immersed in the simulator solution , the i nstrument
"goes into a calculation that resolves and reports degree
Celsius temperature" ( 9 Tll8 ) .
"For the purposes of measuring temperature there ' s no
difference" between the black key probe and the agency probe
( 9T 1 2 8 ) . The difference is that the black key probe has a "few
additional components which establish access rights for the
person with this key to get at more menu functions" ( 9 T 1 2 8 ) .
40
The only function that can be accessed with an agency probe is
"Time" ( 6T 70 ) . Both types of probes are t es ted and recertified
annually by Draeger ( 6 T45-6T4 6 ; 9 T 1 2 8 ) .
When tested by Draeger at each annual recertific ation , the
specific resistance of each temperature probe is determined at
3 4 ° C and , based on that resistance , the probe is as signed a
probe value between 9 2 and 108 ( 6T 4 3 ) . sometime s the probe
value changes for a specific temperature probe , meaning that a
probe could be returned by Draeger after recertific ation with a
different probe value than that s ame probe had previously
( 6T 4 4 ) . This change is sometimes referred to as probe value
drift .
Shaffer explained that a Draeger temperature probe " c an't
record temperature , " but that :
It's using a-as a sensor for the temperature
it's using what they call a-it ' s a special
kind of resister c a l led an NTC , Nancy , Tom,
Charlie , which has physical properties that
change depending on temperature .
And so using that resistance of the probe
along with the probe value that's as signed
during our certification proc e s s , inserting
that probe into the instrument its e l f ,
together it goes into a calcul ation that
resolves and reports degree Cel sius
temperature .
[ 9T 1 1 7 - 25 to 9 T 1 1 8 - 10 . ]
Sto l z explained that probe value is " j u s t a parameter"
assigned to a probe by Draeger in its annual certification
41
process "to compensate for the differences of the different
temperature probes" ( 1 7 Tll4 ) . It is not the actual resistance ,
nor does it reveal the resistance measured by the probe . The
probe value goes into the algorithm and is factored into the
temperature ca lculat ion of the instrument ( 1 7Tll 4 - 1 7 Tll5 ) . If
the probe value is incorrectly inputted into the instrument , the
temperature c a lculation wil l be incorrect ( 6 T8 1 ; 7T8 3 ; 8Tl2 7 ;
10Tl4 6 ; 1 7 Tll5 ) .
The CC thermometer is a separate , hand-held device
consisting of a probe to immerse in the simulator solution and a
unit that displays a temperature reading ( S -lK ) . The CC
thermometer comes i n a padded box "to make sure it doesn ' t get
damaged during transport" ( 6 T53 ) . Each CC thermometer is
certified for two years ( 6T 6 1 ) . Bec ause the cost of
recertifying a used CC thermometer is about the same as
purchasing a new one , the used thermometers are discarded at the
end of two years and replaced with new thermometers .
Klimik testified that agenc ies typically have their
Alcotest instruments set up and runn i ng , with the agency CU3 4
attached , twenty-four hours a day ( 6Tl51 ) . Thus , when he goes
to an agency to perform a cal ibration check on an instrument in
service , as opposed to a new instrument or one returning to
service after repair , the first thing he does is detach and
42
empty the solution in the agency CU3 4 . Once that solution is
empt ied , the coordinator must either conduct a solution change
or comp lete a ca l ibration check of the i nstrument before
returning the instrument to service ( 6T 1 1 4 ; 6T156 ) .
Each agency usually has one CU3 4 in service and one in
reserve . Typic a l l y , the coordinator will not perform the
c alibration check with the same agency simulator that was
already in use , but will put into service the agency simulator
that is " i n a sealed box with the corresponding certi ficates"
fol lowing its annual recertification and return from Draeger
( 6T3 1 - 6T3 2 ) . This is not mandatory , but the goal is to use in
the c a libration che ck , and to leave in service at the agenc y , a
simulator with a cert i f ication date that extends beyond the next
required ca l ibration check ( 6T 3 3 ) .
The coordinator then prepares the agency CU 3 4 , using the
bottle of 0 . 10 simulator solution he brought with him . He
checks the seal " two or three times" by blowing into a tube and
conf irming that bubbles are not escaping from the side of the
simulator ( 6T 1 5 - 6 T 1 6 ) . He then plugs the agency CU34 into the
power strip , turns it o n , and confirms that " the propeller is
spinning and there ' s an orange l ight indicator on top of the
heater which indicates that the unit is being heated " ( 6Tl6 ) .
43
The coordinator then goes through the same steps to prepare
the three CU34 simulators he brought with him, using the 0 . 04 ,
0 . 08 , and 0 . 1 6 solutions ( 6 T 1 6 -6T 1 8 ; 6T20- 6T2 4 ) .
The coordinator writes the serial numbe r of the simulator
on the corresponding bottle of solution and records the time on
the final solution prepared ( 6T 1 6 ; 6T2 4 ) . When the CU34 reaches
the proper temperature range according to its internal
temperature probe , the orange light begins " turning on and off"
to indicate that it has reached and is maintaining the correct
temperature ( 6T2 5 ) . 1 3 This usually takes about thirty minutes ,
but the Calibration Check Procedure requires that coordinators
al low each CU34 to heat for a full hour ( S - 3 2 ; 6T2 5 ; 8 T 1 2 3 ) .
While the CU34s are heating , the coordinator will typic a l ly
do various administrative tasks, such as downloading any data on
the instrument since the last automatic weekly download ,
preparing pages for the discovery that will be produced as part
of the c alibration chec k , and confirming several settings that
are checked " every time before performing a c alibration to
ensure that they are at their correct settings , " inc luding
" The CU34s are designed to reach and maintain a temperature
of 3 4 ° C , plus or minus a tight tolerance of . 02 ° C ; however , the
actual temperature of the solution cannot be determined until
measured with a separate measuring device .
44
tolerances and l inearity configurations ( 6 T 3 6 -6T3 8 ; 6T45 ; 6T 6 8 -
6T69 ) .
The coordinator then adjusts the probe value setting in the
instrument to the probe value of the black key temperature probe
( 6T 6 9 ) . The probe value function in the instrument would be set
to the probe value of the agency probe when the coordinator
arrives , so unless the values of both the agency and black key
probes happen to be the same , the coordinator must adj ust the
probe value function to the probe value of the black key
temperature probe before beginning the test s , and then must
ad j ust it back to the probe value of the agency probe before
performing a solution change at the end of the process ( 6T 7 8 -
6T 7 9 ; 6T 1 4 2 ) . The probe value that the coordinator enters into
the instrument does not print out on any of the reports
generated by the c a l ibration , nor is it handwritten by the
coordinator ( 6T 7 1 - 6T7 2 ; 6T 1 4 2 ) .
Once the CU34s have been heating for an hour , the
coordinator checks a l l four simulators with the CC thermometer ,
which is equipped with a digital read-out screen that reports
temperature to three decimal p l aces ( 6T 8 6 - 6 T8 7 ; 6Tll5 ) . Each
time , the coordinator inserts the probe portion of the
thermometer into the solution , waits about thirty seconds for
the temperature reading to "stab i l i z e , " and then visually
45
confirms that the temperature is within the required range of
3 3 . 8 ° C to 3 4 . 2 ° C ( 6T 8 7 - 6T8 8 ) . Kl imik noted that the temperature
reading on the CC thermometer wi l l continue to fluctuate within
a few thousandths of a degree after it has stab i l i zed ( 6T 8 8 ) .
He testified that he will "wipe the temperature probe to ensure
that there's no cross-contamination " before moving the
CC thermometer from one CU34 to the next ( 6 T 8 8 - 6T8 9 ) .
Once the temperatures of all four CU3 4s have been checked
and determined to be within range , the coordinator is then
finished with the NIST thermometer for the rest of the process
and can return i t to its carrying case ( 6 T 1 1 6 ; 6Tll9 ) . The
temperature readings from the N I ST thermometer are not written
down or captured anywhere ( 6T8 9 ) .
The coordinator will then attach the agency CU3 4 with the
. 10 solution to the rear of the instrument and place the black
key probe i n the solution ( 6T 1 1 8 - 6 T 1 20 ) . The coordinator then
types in " CALIBRATE " and responds to prompts asking for various
information regarding the coordinator and the solution and CU34
being used ( 6T 1 20 ) . Kl imik noted that he and the other
coordinators " always review the data , sometimes multiple times"
( 6T 1 20 ) .
K limik expla ined that , during the CALIBRATE function ,
" [ i] t ' s te l l ing the Alcotest what a . 10 solution is supposed to
46
look l i ke " ( 6T 1 2 1 ; 6 T 1 2 5 ; 1 1T l l3 ) . The CALIBRATE function is
critically important because the standard by which the
instrument measures all headspace and breath samples after that
point is based on its performance of that function . As Shaffer
expl ained :
what ' s inside the
instrument a cal ibrate function is
an That ' s where we're
telling the sensors inside the instrument ,
hey , you know what? Whatever you bel ieved
before , we ' re going to introduce a certain
concentration to your sensors and I want you
to adjust yourself interna l ly so that you
read exactly the target concentration that
we t e l l you during this calibrate process .
And so because of that , it's actually i n a
very sensitive mode at that point . It ' s
told trust whatever we in
this That's a fundamental
of the And
if this was we would
be it And the i nstrument
would not detect a problem because of the
solution alone .
[ 1 0T5 1 - 2 0 to 1 0T52 - 1 0 ( emphasis added ) . ]
The next step is the Control Test , whi c h is performed with
the same CU34 and simulator solution that was used in the
CALIBRATE funct i on ( 6T 1 2 6 - 6 T 1 2 7 ) . The purpose of this test ,
which is repeated three times, is to assure that the instrument
had adjusted properly and reports the 0 . 1 0 concentration within
the allowable tolerance . The control test certification prints
47
out and the coordinator can proceed to perform the l i nearity
test .
But first , the coordinator wi l l empty the agency CU34 and
put a different bottle of . 10 solution in to heat for the
solution change at the end of the c a l ibration check process
( 6T 1 3 3 ) . The . 10 solution used by the coordinator to do the
CALIBRATE function and control test must be a different lot
number from the . 10 solution used for the solution change
( 6T 1 3 4 ) . Usual l y , the coordinator brings a bottle of . 10
solution to use for the CALIBRATE function and uses a bottle
from the agency stores for the solution change .
The next step is the l i nearity test , which tests each
solution i n the coordinator ' s CU34s twice to ensure that the
instrument reads the ethanol as within tolerance over a range of
concentrations ( 6 T l 3 3 ) . The . 04 CU3 4 is used first , then the
. 08 , then the . 1 6 ( 6T 1 3 3 ; 6 T l 3 7 -06T 1 3 8 ) . The b lack key probe is
used throughout the linearity test ( 6 T 1 3 3 ; 6 T 1 3 7 ) . Klimik stated
that he will "triple-chec k " the results for accuracy ,
acknowledging that more than one check for accuracy is important
( 6T 1 3 9 ) .
Once the l i nearity test is comp lete , the coordinator types
in the data for a solution change , after which there is a " 60-
minute loc kout " before that solution change can actually be
48
performed ( 6Tl40- 6Tl4 1 ) . During the data entry for the solution
change , the coordinator must adj ust the probe value function in
the instrument t o match the value of t he agency probe rather
than the black key probe ( 6 Tl4 2 ) .
The agency probe is used during the solution change , and
during this part of the process , the instrument runs three tests
to assure that the i nstrument measures the new solution within
the allowable tolerances, in accordance with the adjustment made
during the CALIBRATE function . The results of these tests print
on the new standard solution report .
At the end of the cal ibration check , the coordinator
produces "discovery" consisting of ( 1 ) "Alcotest 7 1 10
Cal ibration Record , " ( 2 ) "Alcotest 7 1 10 Cal ibration Certi ficate
Part I - Control Tests , " ( 3 ) "Alcotest 7 1 10 Cal ibration
Cert i f icate Part II - Linearity Tests , " ( 4 ) "C al ibrating Unit
New Standard Solution Report , " ( 5 ) Draeger certif icates of
accuracy for the four CU3 4s and two probes used, (6) a
cert i f ic ate of c a l ibration for the CC thermometer , ( 7 ) OFS
certif ications of analysis for the f ive simulator solutions
used , and ( 8 ) the coordinator's credent ials ( S -lM ) .
49
I I I . WITNESSES : AND ASSES SMENT OF CREDIBILITY
A. State ' s witnesses
1. David Klimik
Trooper David Klimik is a NJSP coordinator in the ADTU . As
of the time of his testimony , he had been performing this role
for nearly three years . He performed a demonstration of the
c alibration procedure in open court on the first hearing date .
He was sworn and answered questions posed to him throughout the
demonstration by a l l counsel and by me . A l l questions , answers ,
and colloquy were transcribed ( 6T ) , and video recorded .
( Exhibit S - 4 2 ) . The demonstration lasted the better part of a
full day .
Klimik has received a l l required training to qualify as a
coordinator . See N . J . A . C . 1 3 : 5 1 - 4 . 2 ( a ) ( l ) ( ii ) . Klimik had
performed approximately 500 Alcotest calibr ation s . It was clear
from his testimony that Klimik was very wel l versed in the
manner in which the device and a l l of its component parts
operate and with the calibration procedure and the sequence and
manner in which a l l required steps are conducted . He was able
to expl ain what he was doing throughout the procedure and to
answer questions about each step . He answered a l l questions
forthrightly and without hesitation . When asked questions that
required knowledge of science , computer programming , or the
50
l i ke , he dec l ined to answer , bec ause such questions were beyond
the scope of his knowledge .
Klimik was a very credible witness in a l l respects .
2. Dr . Thomas A . Brettell
Dr . Thomas A . Brettel l received an undergraduate degree in
chemistry i n 1 9 7 3 f rom Drew University, fol lowed by a Master ' s
Degree in chemistry i n 1 9 7 5 from Lehigh University . I n 1 9 8 7 , he
rece ived a Ph . D . degree in analytical chemistry from V i l l anova
University . He subsequently took additional graduate courses in
forensic toxicology and general toxicology .
I n 1 9 7 6 , Brette l l began what would become a thirty-one year
career i n the OFS . He began as a forensic chemist and was
promoted in January 1 9 8 0 to the position of Supervising Forensic
Sc ientist . I n 1 9 90 he became assistant to the Chief Forensic
Scientist . Then , f rom 1 9 9 8 to 2 00 1 , he was the Chief Forensic
Sc ientist , the highest position in the OFS at that time . F rom
200 1 until his retirement in March of 2007 , Brettel l served as
the f i rst Director of the OFS .
He has subsequently worked as an assoc iate professor of
chemistry at Cedar Crest College in Pennsylvan ia . He has taught
both undergraduate and graduate courses in chemistry and
forensic scienc e . These courses have inc luded forensic
administration , which deals with administering and managing a
51
crime laboratory . Since his retirement , Brett e l l has a l s o
provided consulting services t o the Inspector General ' s Office
of New York State and to the District Attorney's Office in Bucks
County , Pennsylvani a , regarding the toxicology unit of the crime
laboratory in that office .
Brettell holds a number of professional certific ations and
member s hips inc luding the fol lowing : Diplomat of the Americ an
Board of Crimina listic s , Certified Forensic Laboratory Director ,
Laboratory Accreditation Board ( ASCLAD ) and Laboratory
Inspector , the American C hemic al Society , the American Society
of Crime Laboratory Directors , the ASCLAD Laboratory Board of
Directors , the American Ac ademy for Forensic Scientists , and the
Society of Forensic Toxicologists . He has tes tified more than
ninety times as an expert in the courts of New Jersey and
Pennsylvania . He provided exten sive testimony in Chun .
During his long c areer in the OFS , Brettell performed a
substantial role in the breath testing program and acquired
substantial knowledge and expertise in breath t es ting and breath
testing ins truments .
Brettel l ' s role with the Alcote s t 7 1 10 began when he was
assistant to Chief Forensic Scientist Dr . Char l e s Tindall . They
evaluated breath test ins truments for purchase for the State of
New Jersey to replace the breathalyzer instrument which was then
52
in use . After evaluating several diffe rent products , they
recommended the Alcotest 7 1 10 . Brettell then took on the
responsibility for developing the technical proc edures for
operating this device and for developing the c a libration check
procedure for it .
He is the author of the Calibration Chec k P rocedure which
is at the heart of this proceeding ( S - 3 2 ) . The final revision
of that document was effective December 1 3 , 2004 , and it remains
in effect at this time without alteration . Brettell could not
recol lect how many previous versions preceded that final
revision . He estimated no more than five . The first version
must have been in effect by December 2 000 , when the pilot
program for the Alcotest 7 1 10 began in Pennsauke n . Brettell
testified that every version contained the requirement to test
the simu lator solutions with a NI ST-traceable thermometer before
activating the CALIBRATE function during the c alibration
process .
Brettell was qualified in this proceeding to render expert
opinions in the fields of forensic chemistry , forensic
toxicology , scientific measuring , and breath testing .
Brettel l demonstrated a very high level of knowledge and
expertise in the fields for whic h he was qualified . In
particular , h e possessed a very high level of knowledge
53
regarding the Alcotest 7 1 10 instrument and its component parts .
He performed the testing and validation of the instrument before
finalizing the decision to purchase it . He developed a l l of the
protocols to effectuate nec essary scientific safeguards to
assure scientific re liability in the breath tests it would
produce . The safeguards were incorporated into the Calibration
Check Procedure or other protocols in the OPS . Brette l l ' s
knowledge of these safeguards , the reasons for them and their
importance was c le arly superior to that of any other witness who
testified in this proceeding.
Brettel l answered a l l questions candidly and forthrightly ,
regardless of who was asking them. He was very sincere and
careful in giving his a nswers . He disp layed a very high level
of appreciation for the solemn responsibility he had in
selecting a breath testing device and developing scientific ally
reliable protocols to achieve in the best way possib le the
highest level of scientific re liability in breath test results .
This demonstrated his appreciation , spoken as a scientist , of
what l awyers and judges would refer to as the constitutional
dimension of the need for breath test results that are
sufficiently scientific a l ly reliable to be used for evidential
purposes and which , standing alone , constitute proof of guilt
beyond a reasonable doubt .
54
Brettel l's testimony was very credible . The facts to which
he testified and the opinions he rendered are entitled to very
substantial weight .
3. Brian Shaffer
Brian Shaffer is an emp loyee of Draeger . He rec eived a
Bachelor of Sc ience degree in engineering in 1 9 9 2 from the
University of Pittsburg h . H e holds no post-graduate degrees .
He worked in several jobs before being employed by Draeger in
2003 .
Whi l e employed by Draeger , Shaffer received in-house
training regarding breath testing instruments manufactured by
Draeger . He also attended the Robert Borkenstein School , taking
a one-week seminar for alcohol , and another program for drugs .
He also took a Windows CE course dealing with operating systems
and designing imbedded systems .
Although Shaffer does not have formal education in
computer science or computer programming , and he ac knowledges
not being trained in computer sc ience , he began his c areer at
Draeger as a software engineer , a position which he held for
about nine years . I n this rol e , he collected and managed
specificat ions and requirements from customers and formed those
into source codes and a lgorithms that are placed i nto firmware .
Shaffer explained that breath testing instruments have a basic
55
firmware that is developed at the factory , in Draeger ' s case in
Germany . Then , customi zed codes are written to be imbedded in
the firmware for each custome r , and they are different depending
upon the needs of each customer . Shaffer wrote the source codes
that customi zed the Alcotest 7 1 10 for New Jersey's
spec i f ications .
In Shaffer was c a l led by Judge King to test i fy as
both a fact witness and an expert in source code wr iting
regarding the source code customized for New Jersey ( King SMR II
at 8 ; 1 4 ; 62 ) . The sub j ects on which he test i f ied are unrelated
to the present c ase ( King SMR II at 6 2 - 7 9 ) . 1 4
From 2 0 1 3 to 2 0 1 7 , Shaf fer worked as a "bid and tender
manager . " I n that role , he carried many of the same
responsibi l ities as he had when he was a software engineer ,
serving as a l i a ison between the customer and the various
internal departments of the company , including the research and
development , logistics , service , and legal departments .
" Defendant contends that Shaf fer " held the opinion in the
Chun l i t i gation that the use of a NIST-traceable thermometer was
not necessary" and that "Judge King did not find Mr . Shaffer ' s
opinion persuasive i n as Judge King recommended the use of
a N IST-traceable thermometer to the New Jersey Supreme Court ,
contrary to Mr . Shaf fer's opinion" ( Db 3 3 -Db34 ) . This is
incorrect . Shaf fer's testimony in Chun rel ated solely to
software development , he discussed nothing regarding New
Jersey ' s Cal ibration Check Procedures or the use of a NIST
thermometer , and Judge King found his testimony to be
" comp l etely re l i able and forthri ght " ( King SMR II at 7 9 ) .
56
Since 2 0 1 7 , Shaffer ' s t itle has been " Technical
Spe c i alist . " He is the sole responsible party in the United
States to support the Alcotest 7 1 1 0 . That instrument is
currently used i n New Jersey and Alabama , as we l l as in a few
counties in Cal ifornia .
Shaffer is a " remote " employee , working primarily from his
home in Colorado . He occasionally travels to each of the two
Draeger locations i n Texas , mostly to the service workshop , on
average a few times a year . He also travels around the country
to trade shows , where he engages in sales activities on
Draeger ' s behalf . He also travels to customer locations to
engage in customer relations and provide service support to
existing customers , inc luding New Jersey .
Shaffer described the a llocation of his work as " about two
thirds sales, one-third would be pro j e c t management related to
the technic a l aspects of my role " ( 10T6 8 ) . Thus, he
ac knowledged that " two-thirds of [ his] time is spent dedicated
to making money for Draeger " ( 10T6 9 ) . Essenti a l l y , Shaffer is
the national sales manager for Draeger ' s breath testing
instruments . Most of his t ime with Draeger is devoted to
promoting sales of Draeger products .
Shaffer was primarily a fact witness in this case . It was
c lear from his voir dire examination that he did not profess to
57
have expertise i n certain relevant areas , and the State made
c lear that i t was not offering him as an expert in those areas .
Thus , he was not being offered to give expert testimony in
source code writing nor as an expert i n the New Jersey
calibration check procedure ( 9 T50 ) . Likewise , he was not
offered as an expert in traceabil ity ( 9 T 7 9 ) . Although Shaffer
stated that he had an understanding of what NIST is and that it
provides a nationally recogni zed standard of measurement s , he
acknowledged that he had never read the NIST guidelines for
traceability ( 9 T 7 7 - 9 T7 8 ) .
Although the State proffered Shaffer as an expert on the
workings of Alcotest 7 1 10 , it was l imited to " the internal
Draeger procedures for testing and certifying the CU 3 4 , the
black key temperature probe and the agency temperature probes . "
[ 9T 8 8 : 1 3 - 2 1] . Further , counsel for the State made clear that
he was " not offering [ S haffer] as a scientific expert' ( 9T 9 3 ) .
'
His expertise with regard to the Alcotest 7 1 10 would be limited
to his working knowledge from a technical aspect of " the
internal Draeger procedures for testing and certifying the CU3 4 ,
the black key temperature probe , and the agency temperature
probe s " ( 9 T 9 3 ) . Stated more simply , the State offered Shaffer
as an expert with respect to "what does the instrument do "
( 9T9 4 ) .
58
Subject to those limitations , I qualified Shaffer as
fol lows :
THE COURT : All right . Here ' s - I'm going
to allow this witness to continue to testify
with regard to his expertise about the
devic e , i nstrument itse lf , the 7 1 10 , wh ich
he was a participant in the development of
the firmware and the refinement of it to its
current form .
He ca n testify about the interna l Draeger
procedures with which he is fami l iar as a
long-time employee of Drae ger , and in his
role there for testing and certifying the
CU3 4 units , and the black key temperature
probes , and agency probes and what the
results of the c al ibration process , in his
opinion , would be with or without the N I ST
traceable thermometer being used as an early
step in the process . He is qualified , in my
view , to give testimony in those regards .
Everything else will go to weight .
[ 9T 1 0 7 - 7 to 2 2 . ]
Shaffer's level of expertise is c learly limited . His
education i n e l ectrical engineering does not qualify him to
testify as an expert i n the fie lds of chemistry or physics ,
which drive the issue i n this case . There is no dispute that
Shaffer is not a scientist and he was not proffered as a
scientific expert . His knowledge of breath testing programs and
i nstruments is l imited to their technical aspects .
Shaffer's testimony was candi d , he was knowledgeable
regarding Draeger procedures , and he provided answers without
undue evasion or equivocation . Howeve r , I further find from his
59
background , experience and the testimony he gave and the manner
in which he gave it , that Shaffer has a built-in bias which
serves to favor the State's position. He is a long-time Draeger
employee. Having written the source codes for the New Jersey
version of the Alcotest 7 1 1 0 , he is invested with defending the
firmware and the device itse l f , when operated in accordance with
Draeger's recommendations, without the need for additional
safeguards imposed by an end-user , inc luding New Jersey . Based
on his employment , he has an interest in defending and promoting
these devices as highly desirable for use by governmental
entities , which are the present and prospective customers with
whom he deals on Draeger's behalf. It is only natural that he
would view any additional safeguards , beyond those recommended
by Draeger , as not necessary or even important to assure
re liability.
When testifying about various additional safeguards
Brette ll put into the c alibration procedure , inc luding but not
limited to the use of the NI ST-traceable thermometer , S haffer
repeatedly refused to acknowledge their worth or importance ,
stating instead that they did no harm but they were not
necessary . These assertions were at odds with other credible
testimony in the case , including from the State ' s other experts.
60
Based upon Shaffer's limited educational background , lack
of scientific expertise , and his bias in favor of Draeger and
its products, inc luding the New Jersey Alcotest 7 1 10 and its
firmware , I find Shaffer ' s credibility to be limited , and I do
not attribute high weight to it .
4. Dr . Howard J . Baum
Dr . Howard J . Baum served as the Director of the OPS from
March 1 7 , 2008 to his retirement on June 1 , 2 0 1 7 . Prior to
that , Baum had never been employed by the State of New Jersey in
any capacity . His prior professional experience was in the
State of New Yor k .
His educational background is as fol lows : He received a
Bachelor of Science degree in biology with a concentration in
biochemistry from Corne l l University in 1 9 7 9 . I n 1 9 8 6 , he
received from Brandeis University a Ph . D . degree in biochemistry
with a concentration in molecular biology , which is DNA .
Prior to being employed in New Jersey , Baum served as
Assistant Director , and eventually Deputy Director , of the
Forensic Biology Department of the Office of the Chief Medical
Examiner in New York City . He also served as the DNA Technical
Leader in that office . He was responsible for the day-to-day
operation of the Forensic Biology Department , which concentrated
on DNA testing and some serology . Notab l y , Baum was responsible
61
for the World Trade Center DNA ident i f icat ion of the missing
persons and crime scene reconstruction.
It is c lear that Baum's primary area of scientific
expertise is i n the field of DNA studies and analysis . Indeed ,
since his retirement i n 2 0 1 7 from his position i n New Jerse y , he
is an owner of Baum Sc ienti fic Consulting , LLC , through which he
is now handling only DNA cases. He holds six patents , a l l
dealing with DNA . Of his thirty-seven pub l ications, about
thirty involve DNA. None i nvolve breath testing. He
acknowledged that it is we l l known in the scient ific community
that he is a nat ionwide expert on DNA testing.
Prior to becoming employed in New Jersey in 2008 , Baum had
no experience whatsoever in breath testing programs or with
breath testing devices . After being employed in New Jersey as
Director of the OFS , he took some training from the State Police
and Draeger to learn the basics of New Jersey's breath testing
program and the device used , whi c h , at the time of his hire was
the Alcotest 7 1 10 ( 1 2 T2 2 ) . He acknowledged that he had never
used or touched an Alcotest device in his prior position
( 12T36 ) . His training encompassed an aggregate time of about
three to four weeks over a period of about a year ( 1 3 T l 7 ) .
Whil e employed as Director of the OFS , Baum generally
devoted about ten to f i fteen percent of his time to the breath
62
testing program ( 1 2 T 3 7 ) . When he f irst arrived , an individual
on the existing staff was the manager of the breath testing
program. At some point , Baum hired Alaouie ( also a witness i n
this c ase ) , whom he designated a s the manager o f the program .
As such , those individuals were responsible for the day-to-day
operations of the breath testing program, for testing and
cert i fying the accuracy of simulator solutions, and for setting
up and monitoring the ce ntral database , also known as the
Alcotest Inquiry System .
Baum is a certi f ied ISO 1 7 0 2 5 laboratory assessor ( 1 2T20-
1 2 T2 1 ) . He acknowledged that through A2LA he performs ISO 1 7 0 2 5
accreditation evaluations , and h e acknowledged that I SO 1 7 0 2 5
accreditation i s the hi ghest level of accreditation and c a n be
characteri z e d as the "gold standard" ( 12T47 ) . He also
acknowledged that N I ST is the gold standard for traceabil ity
( 1 2 T53 - 1 2T54 ) . He acknowledged his fami l iarity with the NIST
pol icy review materials in evidence ( A- 1 ) ( 12Tl ll-12Tll3 ) .
I t is c lear f rom a review o f Baum ' s over a l l testimony over
a period of three days that he never took a particularly active
role in the breath testing program, never fami l iarized himse l f
thoroughly with i t , and possesses limited knowledge about it .
For example , he did not know that the simulator solutions come
into the OFS with a certif ication of accuracy from the
63
laboratory that produced them . Therefore , he did not know that
the testing of sample bottles in the OFS constituted a retesting
as an added safeguard to assure scientific rel i ability. The
same was true regarding Alcotest instruments received from
Draeger after repair . He said that " [ u] sually the Alcotest
i nstruments are not certified" when repaired by Draeger , addin g ,
"They're not cert ified , per se '' ( 1 3T54 ) . But when pressed and
shown a Draeger certificate of accuracy for an Alcotest 7 1 1 0 , he
agreed that " [ t] here is paperwork with certification" from
Draeger with the instruments returned after repair ( 1 3T54-
1 3T55 ; S - 9 G ) .
Another significant example can be found i n his testimony
regarding CU3 4 read-out models. The CU34s uti l i zed in New
Jersey with the 7 1 1 0 do not have a screen to read out
temperature . Baum described in great detail that he considered
obtaining CU34s for use with the 7 1 10s which did contain such a
read-out screen . He said he obtained them, and had them tested
in the lab. He said he was considering using them as a
replacement for the NIST-traceable thermometer step i n the
protocol . When asked why he didn ' t do so , he said his time ran
out before his retirement , and also that there were funding
problems. I directed the State to produce documentation to
verify this information bec ause Baum had never referred to it in
64
his reports and it constituted a surprise . The following day ,
counsel for the State reported that upon checki ng , it was
learned that the simulator devices Baum was referring to did not
apply to the 7 1 10 at . a l l . They appl ied to the consideration the
State was then giving to obtaining a new instrument , and one of
the models it was considering was Draeger ' s new generation 9 5 1 0 ,
which evidently comes with a simulator that contains a read-out .
Much of Baum's testimony was self-contradictory . I n some
instances , the contradictions were within testimony he gave i n
this very hearing . On other occasions , he gave testimony in
this hearing that conflicted with a statement he gave to
criminal investigators in the Dennis case in December 2 015. And
he also rendered testimony in this case that was contradictory
to testimony he gave in the Holland hearing . I will discuss
some of those with more particularity in the remainder of this
section .
I n addition to noting Baum's l imited knowledge of the
breath testing program and inconsistency in his testimony , I
also note shortcomings in his recollection of events . Further ,
as I observed his demeanor and manner of answering questions, I
note that his answers were often vague or qua l ified , resulting
in a l a c k of c l arity and allowing for him to change his answers
65
if challenged . He also bec ame argumentative and evasive on many
occasions in an ef fort to avoid having to answer questions .
For a l l of these reason s , which I will continue to discuss
in further detail , I did not attach to Baum's tes timony a high
level of credibility , nor do I attribute significant weight to
it .
Baum was qualified a s an expert in the three fields for
which he was offere d , namely the Alcotest 7 1 1 0 , the breath
tes ting program, and scientific measurement . He proceeded in
his substantive tes timony to dis cuss those areas and render
opinions in them. As I have previous ly describe d , some of his
opinions were at odds with opinions he previously gave in other
proceedings , and some were internally inconsistent within his
tes timony in this proceeding .
I t is apparent to me that Baum went out of his way to
conform his tes timony to fit a significant argument the State
originally made in seeking this Special Master proceeding ,
name ly that use of the NIST-traceable thermometer is merely a
pre-step 15 for administrative convenience to prevent the waste of
time by a coordinator if he were to begin the CALIBRATE function
and one of the simulator solutions was out of range . However ,
15
Baum and the State used the terms " pre-step " and " pre-te s t "
interchange ably .
66
Baum then ac knowledged that the same purpose can be achieved
with the black key temperature probe ( i f that probe could be
relied upon for the required accuracy ) . He explained that a
coordinator could plug the black key probe into the Alcotest
device , pull up the correct screen , and get a read-out , a
procedure which could be per formed on each of the four CU3 4s
before activating the CALIBRATE function ( 1 2T58 ; 1 3T2 3 ) .
At another point i n his testimony , Baum said this about the
NIST-traceable thermometer :
And the temperature probe from the
thermometer i s , in a pre-test , is put i nto
the simulator solution to make sure that
it ' s c lose to the 3 4 degrees that is
necessary . When I say c lose , between 3 3 . 8
and 3 4 . 2 degrees Celsius and it's used to
take temperature of the simulator solution
i n this process .
[ 1 2T2 2 4 -9 to 15 . ]
When asked why he ca l l e d it a " p re-step , " Baum said :
[ I] t's i n the protocol for the cal ibration
of the instrument , but it's a test to make
sure that they are at approximately the
proper temperature before plugging it i n
with a black key temperature probe and
plugging it into the instrument , the
Alcotest instrument .
[ 1 2T2 2 4 - 2 2 to 2 2T 2 2 5-2 . ]
This testimony is an example of a witness trying to fit a
proverbial round peg into a square hole . Baum attempted to
minimize the importance of the NI ST-traceable thermometer step
67
by calling it a " pre-test " and stating that it only has to show
that the solutions " are at approximately the proper
temperature . " Yet , those concepts are internally inconsistent
bec ause he also identified the range which he characterized as
being sufficient if they are " approximate l y " correct . The range
he described is the precise range that is required in the
calibration procedure . Further , he twice said that the NIST
traceable thermometer is used to "make sure " the temperatures
are within the precise required range . Of course , "make sure "
means to be certain that the required range is achieved .
Although characteriz ing this step as a mere " pre-test , "
Baum did not dispute that i f the NIST-traceable thermometer does
not give readings within range for al. l four CU3 4 s , the
coordinator is prohibited from proceeding with the calibration
( 1 4T 8 ) . Thus , Baum ' s attempted minimi z ation of the importance
of this step is contradicted by his own testimony and that of
every other witness in the case .
At another point , Baum was again asked whether the
procedure , prepared by Brettell , recommended by Judge King , and
approved by the Supreme Court , was required to be fol lowed to
ensure scientific reliabi l i ty . Baum tried to avoid the key part
of the question by saying the Court " said the procedure had to
be fol lowed . " When pressed as to whether the Court required it
68
to "ensure and guarantee tbe sc ientific reliab i l ity of the
Alcotest , " he finally said '
'Corre c t " ( 1 3Tl05- 1 3 T 106 ) .
There were significant discrepancies between Baum's answers
to investigators in his December 2 1 , 2015 interview and his
testimony before me . I n that interview , he said that i f the
NIST-traceable thermome ter was not used , if the " internal
thermometer , • by which he meant the Draeger black key or agency
probe , was not operating correctly , but read between 3 3 . 8 and
34 . 2 , '
'the would even it shouldn ' t " ( 1 4Tl 7 3 )
( emphasis added ) . He then tried to negate that answer in his
testimony in this case i n two ways . First , he said it was a
poor question so his answer didn ' t come out right . Second, he
said that he only meant one calibration test would pass , not the
entire c a l ibration procedure ( 1 4 T 1 7 8 ) .
S imilarly , i n his December 2 1 , 2015 statement , he answered
the fol lowing questions i n the following manner :
Q. So it says , HB . I ' m going to start with
the quest ion . Question . This is from
D - 1 8 as wel l .
That NIST thermometer then comes into
play to ensure that the temperature of
those solut ions are 3 4 degrees?
A. Correct .
Q. If they weren't 3 4 degrees , uh , and the
coordinator proceeded with the
recalibration process , would he be
successful , he or she be successful ?
69
A. Yes, he would.
Q. Question : How so?
A. I t would generate a linear line .
However , when went to an
individual was arrested for drunk
it wouldn ' t be an accurate
of their blood alcohol
concentration .
[ 1 4 T l 8 3 - 2 to 1 6 ( emphasis added ) .]
The n , continuing with '' live '' questioning in this hearing :
Q. And you read that - I ' m reading this
correctly . It wouldn ' t be an accurate
reading of their blood alcohol
concentration . That's what you state d ,
correct?
A. That ' s what I state d , correct .
Q. Okay . And there ' s no qualifying
l anguage by you there , correct?
A. Correct.
[ 1 4 Tl 8 3 - 1 7 to 2 4 .]
Yet , Baum then tried to negate the testimony he gave in that
statement by saying that skipping the NI ST-traceable temperature
measurement in the c alibration process wou l d not be a problem
because if the CU34 temperatures were out of range , it would be
picked up by the black key probe or the agency probe or the
CU3 4s themselves ( 1 4Tl 8 7 ) . This clearly contradicts what he
said in his previous statement given in the Dennis criminal
70
investigation . This is yet another example of why I c annot rely
on Baum ' s opinions , which are often in conflict with each other .
This witness exhibited a low leve l of knowledge ,
recol lection , candor and consistency . His "reliable enough"
approach to the requirement of NIST traceab i l ity to assure
scientific reliabi l ity is not we l l supported by his own
testimony . Nor is it persuasive in estab lishing that without
the NI ST-traceable step the Alcotest device does not drop below
the level required to render results that are suffic iently
scientific a l ly reliable for their intended purpose , namely for
evidential use , in which they establish per se gui lt beyond a
reasonable doubt .
5. Dr . Ali M . Alaouie
Dr . Ali M . Alaouie rece ived an undergraduate degree in
chemistry from the College of Staten Island in New York in 1 9 9 9 .
He received a Master ' s Degree in environmental sc ience from Long
Island University in New Yor k . I n 2006 , he received a Ph . D .
degree from North Carol ina State University in Raleigh , North
Carol ina in chemistry . He subsequently participated i n two
one-year appointments for post-doctoral work . The first was in
biochemistry a t the University of Edmonton i n Canada ; t he second
involved ca ncer research at New York University at the
Polytechnic Institute in Brooklyn . Alaouie also received a
71
professional certific ate from New York University in U . S . Law
and Methodologies .
Alaouie has been employed in the OFS since January 3 0 ,
2012 . His official title is Research Scientist , and his
functional title is Program Manager of the Breath Testing Unit .
As such , his primary functions are to conduct va lidation
studies , scientific measurements , and any kind of data-driven
analysis or research .
As Program Manager of the Breath Testing Unit , Al aouie
oversees the Alcotest Online Public Database ( also known as the
Alcotest Inquiry System ) . This database captures and preserves
the data from breath tests administered to subjects and solution
changes . Because of a "bug" in the Alcotest firmware , the
system does not capture calibration records . The system also
does not capture the probe value of the Draeger probes it
reports upon . Alaouie limits his role in this regard to
checking on a weekly basis to be sure that all police agencies
are uploading their data into the system. If there is a
technic a l problem, he makes arrangements to send appropriate
technicians to that police department to address it . If more
than two or three weeks go by during which a department has not
uploaded its data , a reminder is sent . However , neither he nor
anyone acting under his supervision reviews the data for
72
purposes of analysis , which might identify and address any
trends that might be problematic .
Alaouie took the Robert Borkenst e i n course on alcohol and
highway safety in 2 0 10. I n 2 01 1 , he took training courses
admi nistered by the New York City Police Department regarding
the I ntoxilyzer breath testing device . He also received
training provided by N I S T , consisting of a two-day workshop in
2 01 3 , which de alt with trends in synthetic drugs . In 2015,
Alaouie completed a course which resulted in his certification
to i nspect accredited l aboratories according to ISO 1 7025
standards . He has e i ther observed or performed about 100
cal ibrations of the 7 1 10 while employed by the OFS .
Another major part of Alaouie's role is to check simulator
solutions for accuracy and cert ify them before they can be used
by the State Police or local police departments in cal ibrating
Alcotest i nstruments or administering breath tests . The
solutions are generated by various suppl iers , and they come with
a certificate of accuracy issued by those suppliers . However ,
it is part of the protocol established by Brettell that these
solutions must be checked by the OFS before they can be used .
The testing procedure compl ies with ISO 17025 standards , ac ross
five data points using five separate concentrations . The
measurements are made against NI ST-traceable standards, and the
73
measurement results are NIST-traceable . Alaouie oversees and
reviews the work done by scientists under his supervision and ,
upon his satisfaction that all procedures have been performed
correctly and a l l calculations are correct , he signs the
certificates of accuracy for the simulator solutions .
Alaouie does not possess any specialized computer
knowledge , including the ability to write or understand source
codes , programming , algorithms , and the like . He is not a
computer scientist or programmer .
Alaouie has performed a significant role in validating the
Alcotest 9 5 1 0 , which is expected to be the next breath testing
instrument used in New Jersey when it replaces the Alcotest
7 1 10 . As part of the v alidation process of the 9510 , Alaouie
did not per form any SIM TEMP error statistical testing between
the 7 1 10 and the 9510 . He has never interrogated the 7 1 10
system regarding SIM TEMP errors for the purpose of conducting a
statistical analysis of such errors .
Al aouie ac knowledged that in every procedure in which
accuracy of measurement of temperature is critic a l , the
measurement must be made with a N I ST-traceable instrument . He
further acknowledged that the user is obligated to satisfy
itse lf of NIST traceability . He has relied upon the Draeger
certificates of accuracy for the black key and agency probes .
74
Those certificates do not contain the subst antial documentation
required to sati sfy NIST standards . Alaouie has never contacted
Draeger in an effort to determine whether NIST standards are
satisfied and to obtain the required documentation to s atisfy
hims e lf , on behalf of the State of New Jers e y , the user , of NIST
traceabil ity.
I qualified Alaouie as an expert in the Alcotest 7 1 10 , the
testing of s imulator solution s , and sc ientific measurement . I
found him to be a very credible witne s s . He was forthright i n
answering questions posed b y a l l parties .
The bul k of Alaouie's substantive testimony dealt with the
testing of s imulator solutions . This was not a hotly contested
i s sue . Alaouie's testimony demonstrated that appropriate
sc ientific procedures were utili zed before he s i gned
certificates of accuracy for the simulator solutions . The
testing was comp l iant with all NIST-traceab i lity standards , as
evidenced by the certificates he i s sued . I attribute
substantial weight to his testimony in this r egard.
As to other i s sues deal ing directly with the question
before me , namely whether the fai lure to use the NIST-traceable
thermometer undermines or c a l l s into question the s c ientific
reliabil ity of resulting breath tests , Alaouie • s knowledge and
experience i s l imited . For the reasons I will d iscus s , I did
75
not find persuasive the underlying reasons he gave for his
ul timate opinion that failure to use the NI ST-traceable
thermometer woul d not undermine or c a l l into question the
scientific re liability of breath tests . Thus , in areas other
than the testing of the simu lator solutions , I did not attach
significant weight to Alaouie ' s opinions .
B. Defense witness
1. Dr . Andreas Sto l z
Dr . Andreas Sto l z holds a Ph . D . degree i n physics , which he
obtained from the Technical University in Munich , Germany .
Metrology , the study of how to measure and the analysis of
measurements , is part of his educ ation in physics . He has been
in the United States since 2001 . He has been employed at
Michigan State University since that time , first as an assistant
professor , then an associate professor , and is now the head of
operations for the National Superconducting Cycl otron Laboratory
at Michigan State .
Dr . Sto l z has presented many seminars and programs to
attorneys , prosecutors , and j udges in several states regarding
the science of breath testing . Of the fourteen presentations
listed in his CV, seven include in the tit l e the word metrology ,
five others in their titles refer to measurements , and the
76
remaining two deal with forensic analysis in drunk driving cases
( 1 7T l7 ) .
Stolz has test i f ied as an expert in drunk driving cases
about twenty times, always for the defense . He has co-authore d ,
together with a DWI defense attorney , many pub lications dealing
with breath test i ng . Although these c ircumstances indicate a
defense-oriented leani n g , they also demonstrate extensive
knowledge and experience in the field of breath testing .
I qual i f ied Stolz as an expert in physics , metrology , and
the science of breath testing ( 1 7T53 ) . I n broad general terms ,
Stolz's opinion is that without using the NI ST-traceable
thermometer there is no way of knowing what the temperature of
the simulator solution i s . He was emphatic that neither the
Draeger black key nor agency probes are NIST-traceable , i . e .
they are not capable of produc ing NI ST-traceable measurements .
And , because the measurement results from the probes do not
include any expression of measurement uncertainty , there is no
way of knowing the range of that uncertaint y . I t i s that
problem that cause s , i n his op inion , a loss of scient i f i c
reliab i l ity i n t h e ca l ibration process .
He ac knowledged , as everyone does , that all measurements
have uncertainty . This is not a problem in science . I t is
norma l . It is accounted for by determining and expressing the
77
extent of the measurement uncertainty , which then provides a
range within which an accurate measurement would fall . Without
the NI ST-traceable thermometer step , it is the absence of
measurement uncertainty with the Draeger i nstruments that
renders the c a l ibration process scientifically unreliable .
I found his testimony to be credible . He was very
forthright and precise in his responses . He " gave ground" when
it was cal led for , and his testimony was very candid . His
description of the science underlying breath testing was
thorough and demonstrated a very good understanding of the
scientific principles involved . I attribute significant weight
to his testimony .
IV . DISCUSS ION
A. Burden of and of the
The Chun Court held that the Alcotest 7 1 1 0 , "with the
safeguards we have required , is sufficiently scientifically
reliable that its reports may be admitted in evidence . " 194 N . J . at 1 4 8 . The Court further explained :
Our analysis of the general sc i entific
reli abi lity of the Alcotest is grounded , in
part , on our expectation that there will be
proof that the particular device that has
generated an AIR being offered into evidence
was in good work ing order and that the
operator of the device was appropr iately
qua l ified to administer the test . This
requirement that the test results be
supported by foundational proofs for
78
admissibil ity has been part of our
j urisprudence since we decided Romano .
There we demanded that , as a precondition
for admissibil ity of the results of a
breathaly z e r , the State was required to
establish that : ( 1 ) the device was in
working order and had been inspected
according to procedure ; ( 2 ) the operator was
cert i f i e d ; and ( 3 ) the test was administered
according to official procedure .
at 1 3 4 Romano , 9 6 N . J . at 8 1 . J
These elements, inc luding the good working order of the
breath testing i nstrument at issue , must be proven by the State
by c l e a r and convincing evidence . Romano , 9 6 N . J . at 9 0 ( " I n
drunk driving prosecutions a substantial burden of proof to
establish the competence or admissibil i ty of the results of the
breathalyzer test is appropriate because of the serious
consequences of the breathalyzer reading in such
prosecutions . " ) . As the Romano Court explained :
Under conditions of admissibil ity
must be "c learly established . " 42 N . J . at
1 7 1 . To avoid any confusion over what is
intended by this level of proof , it should
be understood that it conforms to that
standard conventionally ref erred to as
" c lear and convincing proof . " The
conditions of admissibility to which this
burden of proof sha ll apply inc lude those
presently required to establish the
admissibility of the results of a
breathalyzer test , name l y , the proper
operating condition of the machi ne , the
requisite qual i f ications of the operator ,
and the proper administration of the test .
at 90- 9 1 . ]
79
Clear and convincing evidence " is a higher standard of
proof than proof by a preponderance of the evidence but a lower
standard than proof beyond a reasonable doubt . " Mut .
Ins . C o . v . 186 N . J. 163, 1 6 9 - 70 ( 2006 ) . Evidence that is
c lear and convincing " should produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the
allegations sought to be established . " Ibid . In re
134 N . J . 2 2 8 , 240 ( 19 93 ) ) . " To sat isfy the
intermediate cl e ar-and-convincing standard , the fact finder
'must be persuaded that the truth of the contention is " highly
probabl e . " ' " In re 207 N . J . 2 75 , 2 8 9 - 90 ( 201 1 ) ( quoting
2 McCormick on 3 4 0 , at 4 8 7 ( Broun ed . , 6th ed .
2006 ) ) . The evidence must be " so c l e a r , direct and weighty and
convincing" as to enab l e the factfinder to come. to a " c lear
conviction , wi thout hesitancy , " of the facts in issue . Ibid .
"Notab l y , evidence that is uncontroverted may nonetheless fail
to meet the elevated c l ear and convincing evidence standard . "
Ibid . " This heightened standard is typically app lied where the
evidentiary matters are complex , prone to abuse , error or
i n j ustice , and also where an individual's i nterests i n liberty
or personal welfare are at stake . " State v . 449 N.J.
Super . 2 3 1 , 2 5 7 ( App . Div . 2 0 1 7 ) .
80
The State has conceded that it bears the burden of proving
by clear and convincing evidence that the omis sion of the NIST-
traceable thermometer step in the c alibration proc e s s does not
undermine or c a l l into ques tion the scientific reliability of
the Alcote s t 7 1 10 ( 1T l 6 ; Pb2 ) . 1 6
The State' s position is that " [ u] sing the NIST-traceable
digital thermometer improves confidence in the results but does
not affect the scientific reliability of the ins trument " ( Pb5 2 ) .
This position is premised on the arguments that ( 1 ) Draeger uses
NIST-traceable instruments to test and rece rtify the Draeger
probes and CU 3 4 s , so those devices are sufficiently reliable
without an independent check ( Pb 4 ; Pb 3 8 -Pb 4 0 ; Pb4 4 -Pb4 8 ; Pb 5 8 -
Pb 7 9 ) , and ( 2 ) even without the NIST thermometer , the checks and
balances built into the calibration procedure , combined with the
scientific principles of breath testing , make it astronomic a l ly
unlikely that a CU34 heating to an out-of-range temperature
would go undetected through the whole c alibration check proc e s s
( Pb3 ; Pb l 9 -Pb2 0 ; Pb 5 4 -Pb57 ) .
11
I n its brief, the state characteriz es the is sue as ' 'general
acceptance in the scientific community , " but this mis states the
standard ( Pb 2 ) . Chun e s t ablished the general acceptance of the
Alcote st . The question here , as in Romano , goes to the good
working order of a breath-testing instrument that has a lready
achieved gener a l acceptanc e .
81
Defendant and the parti c ipating attorneys stress the
importance of having an independent , NIST-traceable measurement
result for the CU34s during each c a l ibration check procedure ,
and they contend that nothing short of that wi l l suf f ice ( Db 7 7 -
Db7 9 ; Mb2 5 -Mb2 6 ; Rb l ) . The NJSB argues that the many safeguards
required by the Chun Court , inc luding use of the NIST-traceable
thermometer , form " a careful balance of many parts needed to
make a ' suffic iently ' scientifical l y reliable system' for breath
'
testing and that removing the NIST thermometer part of this
bal anced system creates an unjust i f ied leve l of scientific
uncertainty for evidence used in criminal and quasi-criminal
matters ( Ab 8 -Ab l 2 ) .
B.
As detai le d above , having the temperature of the simulator
solution i n the CU3 4s be 3 4 ° C , plus or minus . 2 ° c , is of
critical importance to the c a l ibration and operation of the
Alcotest . Being able to measure the solution temperature with
reasonable scienti fic certainty is fundamental to ascertaining
the good working order of the CU3 4s and , indirectly , the good
working order of the Draeger probes and the i nstrument itse l f .
Measuring temperature is not as simple or straightforward
as measuring , say , a length of wood . Dr . Sto l z explained why
temperature is more dif f icult to measure :
Wel l , temperature is actually difficult to
measure , bec ause it's one of the few things
that you can't measure directly . If you
measure a length , you can compare two items
of the same length easi ly . Just hold it
ba ck t o back together and you can compare
it .
Temperature is different . And so in sc ience
we measure temperature by the effect it has
on other things . I t changes the properties
of other things . I t might be changing the
volume of somethin g . That is what you
usually have i n thermometers that have a
l ittle column inside . It might change the
resistance of a smal l e lectronic element and
that is what's built into those [ Draeger]
probes .
[ 1 7 T7 5-5 to 1 7 . )
I n the case of the black key and agency probes , by
themse lves they cannot provide a temperature reading ( 1 7 T 7 6 ) .
Stolz explained :
[ I)n order to achieve a temperature reading ,
the resistance [ reported by the probe) needs
to be measured by the Alcotest , the
resistance needs to be transformed by some
e lectronic component into a voltage , the
voltage is being measured by an analog
digital converter and the number is then
being c alculated with software into a
temperature reading .
[ 1 7 T 7 6 - 2 0 to 1 7 T 7 7 -l . ]
Brett e l l expressly required the use of " a N I ST traceable
thermometer " to verify the CU34 temperatures during the
cal ibration check process ( S - 3 2 ) . He agreed that when he
selected the Ertco-Hart thermometer , it was important that it be
83
traceable to a N I ST standard ( 7 Tll7 ) . He emphasized the
critical importance of an accurate temperature reading of the
simulator solutions :
Wel l , like I s aid , the calibrating unit is
what a l l the tests are based off of . The
Alcotest gets c a librated against this
c a librating unit and the s olution that ' s in
it . And so the temperature that that
solution ris e s to and equilibrates to is
extreme ly , extremely important . And I
wanted to make sure that the ca librating
unit was tested against the standards of
NIST when - before we started anything .
[ 7T120- 1 9 to 7 T 1 2 1-l . ]
" NIST refers to the National Institute of Standards and
Technology , which is responsible for es tablishin g , maintaining
and publishing basic standards of measurement consistent with
their international counterpart s . '
' Holland I , 4 2 2 N . J . Super .
at 1 9 1 n . 2 ( citing King SMR at 4 5 ) . NIST is part of the
Department of commerce and was formerly known as the National
Bureau of Standards ( Chun 3 T 7 3 ) .
During the Chun hearings , Samuel E . Chappel l , who had
worked for NIST for thirty-eight years before becoming a
consultant in legal metrology , expl ained :
N I ST is the national metrology lab for the
United State s , meaning the national
measurement laboratory for the United
State s . They have the responsibility for
establishing and maintaining and
dis seminating the basic s tandards of
measurement that are consistent with
84
international standards and also they have
responsibi l ity for c arrying out research and
development related to requests from other
federal agencies, and they cooperate , of
course , with our industry in supporting
the i r efforts that may need standard
references and so forth .
3 T 7 3 - 4 to 1 4 . ]
I n this case , Brettell noted that NIST sets " the standards for
the United States measureme nts , the SI units , volume , weight ,
temperature " ( 7 T 4 9 ; 8T52 -8T53 ) . It is "the primary office for
the United States as far as standards are concerned" ( 7 T50 ) .
Baum ac knowledged that NIST is the "gold standard" for
traceability ( 1 2 T53 - 1 2T54 ) .
The concept of N IST traceabil ity is key in this case . NIST
states that " [ t] he definition of traceabil ity that has achi eved
global acceptance i n the metrology community" is that
traceabil ity is the "property of a measurement result whereby
the result can be r e l ated to a reference through a documented
unbroken chain of c a l ibrations , each contribut ing to the
measurement uncertainty" (A- 1 at 1 ) . This defi n it ion was
accepted by the experts in this case ( 7 Tl8 8 ; 9 T6 2 - 9T6 3 ; 10Tl4 2 -
10Tl4 3 ; 1 1T35- 1 1T3 6 ; 1 4T- 3 3 ; D- 1 2 at 3 ) .
Trace abi l ity of measurement results ensures that one
measurement of a particular value is equivalent to another
measurement of that same value ( 1 4T3 2 - 1 4T 3 3 ) . I n the case of
85
temperature and the Alcotest , " [ w)hen we say 3 4 degrees Celsius
plus or minus . 02 degrees, we want to be absolutely certain that
everybody in the world would agre e " with that reference ( 1 4 T 3 3 ) .
Only measurement results are traceable , not device s ,
instruments , standards o r organiz ations ( A - 1 a t 1 -2 ) . " I t is
important to note that traceability is the property of the
result of a measurement , not of an instrument or c alibration
report or laboratory" ( A- 1 at 1 ) . Agai n , the experts did not
dispute this basic principle ( 7T200 ; 10T 1 40 - 1 0T 1 4 2 ; 1 4 T52 ; 1 7 T 6 6 -
17T67 ) .
NIST has further explained :
It [ traceability) is not achieved by
following any one particular procedure or
using special equipment . Merely having an
instrument ca librated , even by N I ST , is not
enough to make the measurement result
obtained from that instrument traceable to
realizations of the appropriate SI unit or
other specified references . The measurement
system by which values and uncertainties are
transferred must be clearly understood and
under control .
[ A- 1 at 1 - 2 . ]
The experts agreed that the NIST policy ( A- 1 ) is
authoritative ( 7 T200- 7T201 ; 1 4 T 3 1 - 1 4 T3 2 ; 15T 1 20- 15Tl2 1 ) . Brettell
specifically acknowledged that even having NIST calibrate an
instrument does not , alone , create traceability .
86
Because measurements rather than i nstruments are NIST
traceable , reference to a "NIST traceable thermometer " is
inherently a bit of a misnomer . However , the phrase has been
used throughout the case as a shorthand term to signify a
thermometer providing temperature measurement results that are
traceable , meaning results that can be related to a NIST
reference standard through an " unbroken chain of c a l ibrations ,
each contributing to the measurement uncertainty " ( 1 2 T 1 9 5 ) . 17
I n its Supplementary Materials for NIST Policy Review, NIST
addressed the quest ion , " I want my measurement results to be
traceable to NIST . What do I have to do? " ( A- 1 at 7 ) . It
explained :
To achieve traceabil ity of measurement
results to standards maintained by N I ST , you
need to reference your measurement results
through an unbroken chain of c a l ibrations ,
inc luding determining the uncertainties at
each step , to N I ST standards as the
specified references . . . . The chain of
c a l ibrations may be short , if the user has
i nstruments or artifacts c a l ibrated by NIST
or acquires standards from NIST and
references measurement results to those . It
may b e longer , if the user references other
cal ibrations in a chain of cal ibrations back
to sta ted references developed and
maintained by N I ST .
[ A- 1 at 7. ]
17
As detailed below, the State • s effort to "water down" the
definition of N I ST traceab i l ity is inconsistent with the
global ly-accepted definit ion of the term .
87
N I ST has also explained the necessary e l ements to
supporting a valid c laim of traceab ility :
To support a claim ( of traceabil ity] , the
provider of a measurement result must
document the measurement process or system
used to establish the c laim and provide a
description of the chain of cal ibrations
that were used to establish a connection to
a particular spec i f ied reference . There are
several common elements to all valid
statements or cl aims of traceabi lity :
• a c learly defined particular quantity
that has been measured
• a compl ete description of the
measurement system or working standard
used to perform the measurement
• a stated measurement result , which
includes a documented uncertainty
• a comp lete spec i f i cation of the
reference at the time the measurement
system or working standard was compared
to it
• an 'internal measurement assurance'
program for establishing the status of
the measurement system or working
standard at all times pertinent to the
c l aim of traceab i lity
• an 'internal measurement assurance '
program for establishing the status of
the spe c i fied reference at the t ime
that the measurement system or working
standard was compared to it
An internal measurement assurance program
may be quite simple or very complex , the
level or r i gor to be determined depending on
88
the level of uncertainty at issue and what
is needed to demonstrate its credib ility .
Users of a measurement result are
responsible for determining what is adequate
to meet their needs .
[ A- 1 at 2 - 3 . ]
Consistent with these requirements , the American
Assoc iation for Laboratory Accreditation ( A2 LA ) " has noted that
" [ t] raceabi lity is characterized by six essential e lements , " as
follows :
1. an unbroken chain of going
back to a stated reference acceptable
to the parties , usually a national or
international standard;
2. measurement the
uncertainty of measurement for each
step i n the traceability chain must be
c alculated or estimated according to
agreed methods and must be stated so
that an overall uncertainty for the
whole chain can be calculated or
estimate d ;
3. documentation : each step i n the chain
must be performed according to
documented and generally ac knowledged
procedures ; and the results must be
recorded ;
4. the laboratories or bodies
performing one or more steps in the
chain must supp ly evidence for their
techn i ca l competence ( e . g . by
18
A2LA is an accreditation body that accredits laboratories
providing c a l ibration services , among others ( 1 7 T80- 1 7 T 8 1 ) .
Stolz test i f ied that the A2LA Policy on Measurement Traceab il ity
is recogn i z e d as authoritative by the scientific community
( 1 7 T 7 9 - 1 7 T8 0 ) .
89
demonstrating that they are
accredite d ) ;
5. reference to SI units : the chain of
comparisons must , where possible , end
at primary standards for realization of
the S I units ;
6. c alibration intervals : c a librations
must be repeated at appropriate
interval s ; the length in of these
intervals will depend on a number of
variables ( e . g . uncertainty required ,
frequency of use , way of use , stability
of equipment ) .
[ D- 1 2 at 4 . ]
The cc thermometer used in the ca libration process provides
NIST-trace able measurement results, and the " Traceable
Certific ate of Ca libration for Digital Thermometer " provided by
Control Company satisfies the e lements needed to establish NIST
trace ability [ 7T204- 7T206 ; 1 2Tl 1 3 ; 1 3 T6 2 - 1 3T 6 6 ; 1 7 T8 2 - 1 7 T8 3 ; 1 7 T l 4 3 -
1 7 T l 4 4 ; 1 7 T2 1 1 - 1 7T2 1 2 ; D- 1 0 ; D - 10A] .
The State has taken somewhat confusing and contrary
positions regarding the asserted NIST trace ability of the
Draeger temperature probes , at times suggesting that the probes
are NIST traceable and at others relying on the NIST
trace ability of the instrumentation used to c alibrate the
probes . For example , the State argues that "Draeger relies on
fundamentally fol lowing a traceability of measurements reflected
in their operations , trainin g , and procedures , " that "NIST-
90
traceable standards were used to certify the CU- 3 4 s , the
temperature probes and the simulator solutions , " and that it has
" proven NIST-traceabi lity of' the " safeguards' in place that
' '
ensure scientific reliability even if the N I ST thermometer step
is skipped ( Pb4 ; Pb57-Pb58 ) . But it also states that " [ i)n
testing the component parts of the Alcotest , Draeger uses
instruments that are third-party certified as traceable to NIST"
and that the probes "are certified for accurac y using
instrumentation with measurements traceable to NIST "
( Pb 1 9 ; Pb 30 ) .
For the reasons detai led below, I find that neither the
black key probes nor the agency probes provide N I ST-traceable
measurement results.
Shaffer explained the process by which Draeger checks and
certifies the accuracy of its probes. He noted that Draeger
uses a "service workshop " rather than a " l aboratory , " and the
service technic ians perform the procedures ( 9 T4 4 ; 9T60 ) . He
stated that "our organi z ation is covered by an ISO 9001
accreditation , and equipment that we use in our process is from
laboratories that maintain NIST traceability for the ir
91
equipment " ( 9 T 6 5 ) . The service workshop does not have
accreditation beyond ISO 9 0 0 1 ( 9 T 6 5 - 9T6 6 ; 1 0 Tl3 9 ) . 19
When doing an annual certification on a black key or agency
temperature probe , Draeger prepares "a 34 degree C water bath "
( 9Tl3 2 ) . This i s " a large tank , maybe about the s i z e of a large
fish tank" ( 9 Tl5 9 ) . It " has a pretty sophi sticated piece of
equipment at its core " called an " immersion c irculator " ( 9 Tl5 9 ) .
The technician sets the temperature , and it heats and c irculates
the liquid ( 9Tl5 9 ) . Typically , the water bath is " prepared the
day before and there ' s plenty of equilibration that goes on "
( 9Tl5 6 ) .
" Accreditation i s a proc e s s by which an internationally
recogniz e d accrediting organi z ation determines that a laboratory
or company adheres to a set of recogn i zed standards ( 1 2 T 2 0 6 ) .
ISO 9 0 0 1 ca n apply to any company and " s ets out the criteria for
a qual ity management sy stem . "
ISO 1 7 0 2 5 i s " the standard for
calibration of testing laborator ie s " in particular ( 7T 4 8 ; 8Tl0 1 -
8Tl0 2 ) . I S O 1 7 0 2 5 accreditation indicates " a finding of a
laboratory's competence and capabi l ity to provide technically
sound and appropriate measurement services within the scope of
[ the ] accreditation " ( 7 T 4 8 ) . ISO 1 7 0 2 5 i s " the hi ghest level of
accreditation " for a testing laboratory ( 1 2 T 4 7 ) . ISO 1 7 0 2 5
accreditation i s not nece s s ary to e stablish NIST-traceab i l ity ,
but such accreditation i s evidence of the competence of the
laboratory performing ca l ibrations ( 7 Tll8 ; 7 Tl2 1 ; 1 3 T 4 5 - 1 3 T4 6 ;
1 7 T2 2 2 ) . As N I ST exp l a ins : "Laboratory accreditation does not
speak to the specifics of any individual measurement result but
to overall capabil ity of a lab to provide the serv i c e " ( A - 1 at
9) •
92
The technician measures the temperature in the water bath
"with equipment that has certificates with NIST-traceable
measurements at its core , " specifically an Ome ga HH4 1 model
digital thermometer ( Omega thermometer ) ( 9T 159 - 9 T l 60 ) . Shaffer
noted, " So everything e l s e that happens in the rest of our
procedure comes from the integrity of that measurement right
there " ( 9 Tl59 ) . Shaffer ac knowledged that , if Draeger failed to
use a NIST-traceable th ermomet er such as the Ome ga thermometer
during this water bath proc e s s , " that would be a problem"
because it would undermine the " fundamental measurement " ( 1 1T58 -
1 1 T59 ) . Baum agreed that the s cientific r el iab i l ity of
Draeger's proc e s s for testing its probes would be undermined if
the Omega thermometer was not used to ensure the correct
temperature of the water bath ( 1 3T2 4 9 ) .
The " current proc e s s " at Draeger i s to use three Omega
thermometers to test the water tank at the s ame time ( 9T 1 6 3 ) .
Previou s l y , only one Omega thermometer was used , but that
changed at some point prior to 2015 ( 9 Tl 6 7 ; 10T6 - 10T7 ) . Draeger
began using three Omega thermometers because "we thought it
would be good to have additional val idation of this temperature
s ince so much of subsequent c a l ibration activity comes from that
water tank " ( 10T7 ) . The three Omega thermometers are " not
93
always giving an identical result , " and i n that c ircumstance the
technic i an relies on " t he middle readin g " ( 9Tl6 5 ; 10T6 ) .
The water bath is set to exactly 3 4 ° C using the thermometer
that gave the middle reading ( S - 1 2 ) . The " correction factor " of
the water tank is adjusted until the temperature reads exactly
3 4 ° C , even i f i t is only sl ightly higher or lower ( S - 1 2 ; S - 1 2A ) .
Whi l e the probes are p l aced and rema i n i n the water bath ,
the technic ian measures and records the resistance of the probe
to the third decimal point , using a Fluke mulitmeter ( 9 Tl 6 8 -
9Tl7l ; S - 1 2 B ) . This resistance number will determine the
preliminary probe value assigned to the probe ( S - 1 2 B ; S - 1 2 C ; S -
12D ) .
Then , whi l e still i n the water bat h , the probe is attached
to a 7 1 10 instrument and the assigned probe value is entered
( 9T l 7 l ; S - 1 2 B ) . "And i f it's accu�ate , it will pass with that
prel iminary probe value . And if an adjustment is neede d , the
technic i a n will change the probe value to read the correct
temperature , thereby making that measuremen t match what is in
the water temp " ( 9Tl 7 l - 9 Tl 7 2 ) .
Once the service technician determines that the probe
" passes , " Draeger issues a cert i f icate of accuracy for that
probe ( 9Tl3 2 ) . This document contains the serial number , probe
value , and certification dates for the probe and states :
94
This is to certify that the Alcotest 7 1 10
Temperature Probe has been tested for
accuracy with instrumentation that is
traceable to the National Institute of
Standards and Technology ( N IST ) . The
manufacturer recommends accuracy
verification of the Temperature Probe within
12 months of the certification date below ,
or sooner , according to your State
Spec ification. For accurate temperature
readings , the probe value on this
certifi cate , noted below, must be programmed
into the Alcotest 7 1 10 .
[ S- 3 3C ; S - 3 3J ; S -3 6 ; S - 3 6 B ; D-4 . ]
The measurement results from the Draeger probes do not
satisfy the basic e lements of e ither an unbroken chain of
c a l ibrations back to a NIST standard or an ascertainable
measurement uncertainty , so those measurements c annot be NIST
traceab le .
Stolz opined that the documents detail ing Draeger's
procedures for checking the accuracy of its temperature probes
[ S - 1 2 through S - 1 2 D] are "procedures and how certain operations
are being done , " but they " have no meaning regarding
traceabil ity . . . [ b] ec ause they cannot connect a measurement
result obtained with any of the black key temperature probes
with a reference standard at N I S T " ( 1 7T2 15 ) . Stolz testified
that an unbroken chain of comparisons is " absolutely essenti a l "
t o traceabi l ity ( 1 7 T 8 7 - 1 7 T 8 8 ) . He opined that the black key
temperature probe c annot satisfy the NI ST-traceable thermometer
95
requirement in the Ca libration Check Procedures " [ b] ecause the
black key temperature probe cannot provide a NIST-traceable
measurement result" ( 1 7Tl08 ; 1 7 Tlll ; D- 3 8 ) .
Moreover , the Draeger probe measurement results are not
made with a stated uncertainty , which is fatal to any c l aim of
NIST traceability .
Stolz expl ained that "measurement consists of a measurand ,
an expression of the unit of measure we ' re concerned
with . . • [ c] oupled with a statement of the quantified
uncertainty , " and that " it ' s a combination of the measurand with
the stated uncertainty that makes it a valid measurement
provided we can trace it to NIST " ( 1 7T2 2 2 ) . Brettell agreed
that "me asurement is a combination of measurand plus
uncertainty" ( 7T200-7 T201 ) . Baum also testified that the result
obtained from a measurement is c a l led a measurand , and he agreed
that "in order for the expression of a measurement to be
scientific ally reliable" the measurand must be "expressed with
an uncertainty" ( 1 4T52 - 1 4 T5 3 ) .
NIST policy explains that achieving traceability includes
"determining the uncert ainties at each step " ( A - 1 at 7 ) . The
A2LA policy states that " [ a] crucial e l ement of the concept of
measurement traceability is measurement uncertainty " ( D- 1 2 at
6). That policy explains :
96
Not onl y should there be an unbroken chain
of comparisons , each measurement should be
accompanied by a statement of uncertainty
associated with the farthest link in the
chain from N I ST , that is , the last facility
that provided the measurement value . NIST
does not have that information ; only the
facilities that provided the measurement
values to the customer can provide the
associated uncertainties and describe the
traceability chain .
[ D- 1 2 at 10 . )
Brettell ac knowledged that " [ t] here's uncertainty in every
measurement " ( 7 T206 ) . He noted that measurement uncertainty is
greater the further it goes down the chain from the NIST
standard ( 7 T 2 2 4 ) .
Stolz noted that the existence of uncertainty in
measurement is not a problem, but not knowing the extent of the
uncertainty makes a measurement unreliable ( 1 7T2 1 7 ) . He
explained :
Wel l , every measurement has a measurement
uncertainty . As a matter of fact , a
measurement result is never , ever j ust a
single number . It ' s always a range of
values where the true value of the quantity
that I want to measure lies within. And
this interval where the true value lies
within is usual l y stated as a measurement
uncertainty , a range of value where the
actual true value-it ' s impossibl e to know
the true value . Even with the best possibl e
measurement instruments , even with many ,
many repeated measurements you would not
know the true value . But you on ly know it
within that measurement uncertainty
97
interval . That ' s not a problem in sc ience .
That is a wel l - accepted fact in science and
scientists have l ived with that since ages .
[ 1 7T8 8 - 1 6 to 1 7 T 8 9 -5 . ]
Stolz noted that knowing the uncertainty of a measurement
result " is essential bec ause without the uncertainty , again , I
would not know what kind of conc lusions can I draw from a
measurement result . And so the knowledge of measurement
uncertainty is essentia l " ( 17T89 ) . "The test temperature needs
to be actually stated with their own uncertainty and the result
needs to be stated with the uncertainty" ( 1 7 T 1 4 6 ) .
The uncertainty of the measurement results obtained by the
Draeger probes is unknown , so those results cannot be NIST
traceable .
The State seeks to discount Stoltz ' s testimony regarding
the need for a stated uncertainty by noting ( 1 ) the experts
disputed whether the c a libration certificates for the Omega
thermometers and Fluke multimeter suffic iently stated the
uncertainties as to the measurement results from those
instruments , and ( 2 ) Brettell testified that the NIST
thermometer " is not going to have an effect on the measurement
unc ertainty " of the instrument itself ( Pb 1 7 -Pbl8 ) . However ,
these issues are unrelated to the uncertainty that is critical
to N I ST-traceabi l i t y , spe c ifically the uncertainty assoc iated
with measurement results from the Draeger probes .
98
As to the documentation r elating to the Ome ga thermometers
and F luke multimeter , regardless of whether the uncertainties
are properly stated for measurement results obtained from those
instrument s , knowing those uncertainties does not resolve the
uncertainty issue for the Draeger probes . There is no dispute
that the uncertainties of measurement results from the Draeger
probes are unknown .
The Brettell testimony cited by the State had nothing to do
with the measurement uncertainty of the Draeger probes at all .
I questioned Brette l l as to why the protocol he developed would
"bother with this NIST thermometer" if the Alcotest instrument
was "a failsafe machine" without it . He responded that "it's a
standard laboratory pract ice t o do two independent tests for
anything , " and he reiterated that the NIST-thermometer step was
"not meaningless at a l l" and that using it "wou ld tell you that
the c a l ibrating unit is either working or not working before you
got into the probe or anything" ( 8 Tl3 5- 8 Tl 3 9 ) . Brettell agreed
that , without the NIST tmermometer step , "there is some reduced
level of certa inty" as to the good working order of the
Alcotest , although "you can't quantify it" ( 8T 1 3 9 ) .
I asked if this reduced level of certainty was related to
the concept that "there's always some amount of uncertainty with
every measurement , " and Brette l l said that "maybe we're using
99
the wrong term of the uncertainty " in that context ( 8 T l 40-
8Tl 4 1 ) . He explained that " there's an uncertainty even with "
the BAC reported by the Alcotest and " t his traceable thermometer
is not going to have an effect on that uncertainty , okay ,
because it's only chec king the calibrating unit " ( 8T 1 4 1 ) . He
noted that the problem with reduced certainty in the good
working order of the instrument had to do with " the error rate "
rather than measurement uncertainty ( 8T 1 4 1 - 8 Tl4 2 ) . None of this
testimony concerned the problem that uncertainty of the
measurement results from the Draeger probes is unknown.
Notwithstanding the " g lobal acceptance in the metrology
community" and by the experts in this case that traceability is
the " property of a measurement result whereby the result can be
related to a reference through a documented unbroken chain of
calibrations , each contributing to the measureme nt uncertainty , "
the State tries to water down the definition of N I ST
traceability to mean something other than this for the Draeger
probes.
During the hearings , counsel for the State ac knowledged
that " [ w] ithout NIST traceability . to the CU3 4 and the
[ Draeger] temperature probes , " the State ' s case has " a problem"
( 12Tl74 ) . However , counsel appeared to conflate " tested with
100
instruments traceable to NI ST" with the concept of actual NIST
traceabi lity ( 1 2 T l 75 ) .
Baum's testimony also attempted to conflate these separate
concepts . Baum agreed with the six essential e lements of
traceability set forth i n the A2LA policy ( 1 3 T 3 9 - 1 3 T 4 2 ) .
However , he referred to the Draeger probes as "NIST-traceable
temperature probes" even though they plainly fai led to satisfy
the six e lements ( 1 4T20-14T2 1 ) . At one point , Baum said that
the black key probe does not have to be traceable to N I ST as
long as it's c a l ibrated with instrumentation traceable to N I ST
( 1 3T 9 1 - 13T 9 2 ) . Later , he also equated NIST traceable devices to
those that are " c a l ibrated using instrumentation that's
traceable to NIST" ( 1 4 T 1 6 4 - 1 4 T l 6 5 ) . Baum even suggested that
the references to " a NIST traceable thermomete r " in the
Cal ibration Check Procedure only means a " thermometer that's
c a l ibrated with N I ST-traceable equipment " ( 1 3 T 9 2 - 1 3 T 9 3 ) . At
another point , he stated that " [ t] here ' s no c l aim for
traceabi l i t y " of the independent thermometer used by the
coordinators , and he only inc luded the phrase " [ t] raceab il ity to
a NIST . • . standard" as a requirement for a replacement for
the Ertco-Hart thermometer in his December 2008 memo as "an
example of qua l ity" ( 1 4 T7 1 - 1 4 T 7 2 ; D- l ) .
101
I n a footnote in its brief , the State contends that " [ i ] t
is understood " that the statement that "a ' thermometer is NIST
traceable' refers to the fact that it was c a l ibrated using
measurements that are traceable to NIST , " c i t ing to testimony by
Shaffer and to a record statement by me ( Pb45 n . 2 0 ) . This
misstates the record . Shaffer merely stated that " it's a
misnomer i n the scientific community" to refer to NIST-traceable
instruments bec ause measurements , not instruments , are NIST
traceable ( 10T 1 40 ) . Shaffer ' s overall testimony was consistent
with the NIST definition of trac e abi lity , and he never stated
that terming an instrument NIST-traceable i ndicates merely that
it was ca l i brated using NIST-traceable measurements ( 10T 1 40-
10T1 4 4 ) .
My statement on the record was in direct contrast to the
State ' s synopsis of i t . I acknowledged that the parties , the
witnesses , and the Court have a l l referred to " NIST traceable
instruments , " despite the fact that only measurements can be
NIST t raceabl e . What was actua l ly understood by the phrase , and
what I c learly said , was that referring to an instrument as
NIST-traceable was " a shorthand way of saying the measurements
derived from this i nstrument are traceable to NIST" ( 1 2 T 1 95 ) .
I n another footnote , the State appears to recog n ize this,
stating :
102
The State recognizes that " instruments "
cannot be traceable to NIST , but only
measurements and standards can be traceable
to NIST . For purposes of this Brie f ,
references to "NIST-traceable instruments "
or " instruments traceable to NIST " are
intended to refer to instruments "with
measurements " or "with standards" traceable
to N I ST.
[ Pb2 8 n . 10 . ]
Even this explanation is confusing . Only measurement results
are traceable , and those results are traceable to standards kept
by NIST , so it is not c lear what the State means by instruments
" 'with standards' traceable to NIST . "
I r e j ect Baum ' s testimony and the State's contention that
the Draeger probes can be considered N I ST traceable by virtue of
being c a librated or checked for accuracy with " instrumentation
that is traceabl e " to NIST . Even assuming that the State has
firmly established that the measurement results of the three
Omega thermometers and the Fluke multimeter that Draeger used to
certify the accuracy of its probes were NIST-traceab le , " simply
using those instruments to check or adjust the accuracy of the
probes does not make those probes N I ST-traceable . As the NIST
policy notes, " ( m)erely having an instrument c a librate d , even by
20
The parties dispute the adequacy of the underlying
documentation re l ating to the Omega thermometers and Fluke
multimeter for establishing the NIST-traceability of the
measurement results of those instruments Pb 4 4 -Pb4 8 ; Pb 5 9 -
Pb6 1 ) .
103
NIST , is not enough to make the measurement result " from that
instrument NIST traceable ( A- 1 at 2 ) .
I n two footnotes , the State contends that Judge King ' s
report in Chun " recognized the NI ST-traceability of the black
key and agency temperature probes" ( Pb 3 1 n . 1 1 ; Pb3 9 n . 1 8 ) .
This , however , mischaracterizes Judge King ' s statements . First ,
as noted above , there was no dispute in Chun regarding the
nature or extent of the calibration check process or the meaning
of N I ST traceability . Second , Judge King ' s statements in his
Chun report do not actually " recogni z e " the NI ST traceability of
the probes at a l l . Judge King stated :
Calibration of the Alcotest 7 1 10 involves a
wet bath simulator , the Draeger CU3 4 , and
one bottle of 0 . 10 ethanol alcohol solution .
The ethanol alcohol solution is poured into
the simulator j ar where it is heated to 3 4
plus or minus 0 . 2 degrees c . A NIST
traceable temperature probe monitors the
temperature of the simulator solution . NIST
refers to the National Institute of
Standards and Technology , which is
responsible for establishing , maintaining
and pub lishing basic standards of
measurement consistent with their
international counterparts . Each
temperature probe has a probe value , which
ca n be changed only by a coordinator using
the " black-key " functio n . When the
instrument determines that the simulator has
reached the correct temperature , the
coordinator hooks up the simulator to the
back of the instrument through the rear port
of the cuvette . The coordinator then hits
the escape key , the function appears on the
display screen , the coordinator types in
104
cal ibrate , and fol lows the instrument's
prompts .
[ King SMR at 4 4 - 45 . ]
I t is not c lear f rom this description whether Judge King
was referring to the Ertco-Hart thermometer as a "NIST-traceable
temperature probe " or did not c learly understand that the
thermometer was an independent component from the Draeger
probes . His later reference to " the NIST-verified temperature
probe " c ites testimony from F lanagan that the temperature of the
CU3 4s is ver i f i ed " using ERTCO HART digital N I S T " ( King SMR at
1 4 1 - 4 2 , citing 54T25 ) . In short , despite some apparent
confusion regarding the distinction between probes and
thermometers , Judge King understood that the c a l ibration check
process required a NIST-traceable measurement result for the
CU3 4 s . This proceeding has c l arified that the only way to
obtain such a measurement result is to us an independent NIST-
traceable thermometer i n the process , not just the Draeger
probes .
I also f ind persuasive two reasons given by Stolz in
addition to lack of NIST traceabi lity as to why the Draeger
probes c annot serve as an e f fective substitute for the CC
thermometer in the ca l i bration check process . First , Stolz
noted that the Alcotest will report an incorrect temperature i f
the probe value i s not entered correctly ( 1 7Tlll- 1 7 T 1 15 ; D- 3 8 ) .
105
As discussed i n more de tail in the following section , both this
problem and the potential for probe value drift between annual
recertif i cations is a c ause for concern regarding the accuracy
of the probe's temperature reading .
Second , Stolz explained that a probe failure could occur
such that the resistance reported by the probe might not change
in accordance with a temperature change in the solution being
measured ( 1 7Tl2 3 ; 1 7 Tl58 ) . This problem would not be detected by
Draeger's recertification process, which checks the probes at a
single point and does not test over a range of temperatures
( 1 7Tl2 3 ) . Stolz explai ned that , because the probes are only
tested at a single temperature , if the resistance of a given
probe did not change as the temperature of the solution changed ,
it "would a lways report the resistance corresponding to 3 4
degrees Ce lsius" regardless of the actual temperature of the
solution ( l 7Tl58 ) . 2 1
The State concedes that using an independent NI ST-traceable
thermometer " improves confidence in the results , " but it
contends that i t " does not affect the scientific reliability of
" Stolz also opined that the Draeger probes cannot be an
effective subst itute be cause a hardware or software malfunction
in the Alcotest could affect the temperature reading of the
Draeger probes ( 1 7Tl2 2 ) . I find this unpersuasive bec ause there
was no evidence of any such malfunction ever occurring or that
such an unspec ified malfunction would produce an incorrect
temperature reading .
106
the instrument" ( Pb 5 2 ) . This sets up a false dichotomy treating
"confidence" and "re liabil ity" as separate concepts . As
Brettel l's testimony showed , confidence and reliabil ity are
interrelated concepts, not separate ones .
Brette l l explained that "when we t al k about reli ab i l ity ,
and you ' re asking a question about the degree of reliabi l ity ,
it's really the degree of confidence that you have in the
measurement of that instrument " ( 7 T 2 4 2 ) . Thus , Brette l l
essentially equated degrees of reliability with degrees of
confidence . This cuts against the State's effort to distinguish
the two concepts and argue that Brette l l ' s only purpose i n
requiring the NIST thermometer was to i ncrease confidence but
not reliabil ity . Brett e l l continued that thought as fol lows :
"So when you t a l k about the degree of r el iab i l i t y , sc ientific
reliab i l ity of a n i nstrument , you ' re really talking about the
uncertainty and level of confidence that you make in that
measurement" ( 7 T 2 4 4 ) .
On redirect examination , Brett e l l expanded upon the concept
of confidence and rel iabil ity :
And I thought I explained that the word
necessity really wasn ' t a technical term.
And I went on to explain about confidence
levels and the difference - the different
levels of reliabil ity based upon the
confidence leve l s .
[ 8T 6 - 2 to 6 . ]
107
c. of NIST-traceable thermometer
From the outset of this proceedi n g , the State has argued
that the NIST thermometer step is not even part of the
cal ibration check procedure . Instead , it argues , it is only a
" pre-step , ' the purpose of which is to provide an
'
" administrative convenience" and which has very l ittle or
nothi n g to do with scientific rel iabil ity. The convenience ,
according to the State , is to enable the coordinator to be
assured that the simulators have heated to the correct
temperature range before he attaches the b lack key probe to the
Alcotest instrument and activates the CALIBRATE function . Once
that function is activated , if any S IM TEMP or other error is
generated, the ca l ibration process will automatically abort .
The coordinator will then be confronted with two choices .
Assuming the error indicates that one of the CU34s is out of
tolerance , the coordinator could replace that CU34 with a
different one ( if one is available ) , put in a new solution of
the same concentration that had previously been in that unit ,
heat it up for an hour , and start the process over agai n . The
second choi c e would be to take that Alcotest instrument out of
service . Both choices , of course , would cause inconvenience .
108
I n its September 1 9 , 2 0 1 6 letter to Judge Grant requesting
the appointment of a special master , the State i nc luded a
footnote stating :
As bac kground , the Office of Forensic
Sc ience included the prel iminary N I ST
traceable thermometer step in New Jersey's
cal ibration procedure not because of
scientific necessity but rather for a
practi cal purpose - to confirm that the
liquid simulator solutions are within the
accepted temperature range before the
coordinator initiates the actual
ca l ibration . This preliminary step is
distinct from the actual c a libration , in
which the temperature of the l iquid
simulator solutions is measured
independently by a black key temperature
probe connected to the instrument , separate
and apart from the NI ST-traceable digital
thermometer . If the black key temperature
probe confirms that the temperature of the
liquid simulator solutions is within the
required ranges , the Alcotest instrument
records that temperature on the resulting
printed reports . If the black key
temperature probe records that the
temperature of the liquid simulator
solutions is not within the required ranges ,
the Alcotest instrument will end the
c alibration and will give an error message .
I n other words , the black key temperature
probe ensures proper c a libration of the
Alcotest instrument , regardless of the use
( or non-use ) of the NI ST-traceable digital
thermometer .
[ D- 6 . ]
This assertion by the State , which i t has continued to
advance throughout the proceedings before me and in its post-
109
hearing proposed Findings of Fact and Conclusions of Law i s
s imply not supported by the evidence .
I n his overall test imony , Brettel l repeatedly stated that
the purpose for which he put the NIST thermometer . step in the
procedure was to achieve s cientific reliabi lity. He emphasized
the extreme importance of an accurate temperature in the CU 3 4 s ,
espec i a l ly the agency CU3 4 that i s used in the CALIBRATE
function . All experts agreed with him on that . Brette ll
repeatedly explained that only by a direct temperature
measurement with an independent and out s i de N I ST-traceable
thermometer could a s c i entifically reliable measurement of those
temperatures be achieved . The CU3 4 s themse lves are not equipped
with any kind of read-out screen , as a result of which the
temperature of the solutions they contain are unknown until
measured .
Brettel l was unwi l ling to rely on the Draeger probes for
that measurement , i n s i s ting that an out s ide NI ST-traceable
temperature measuring device , completely independent of Draeger ,
was neces sary . I f the NIST thermometer measured the
temperatures of the solutions as within range , that would
estab l i s h that the CU3 4 s were in good working order .
There after , having accurately determined that the temperatures
of the s imulator solutions were within the required range , the
110
good working order of the Draeger probes could be "verified" if
they also reported in-range temperatures .
I re ly upon several aspects of the evidence in rejecting
the State ' s "pre-test" argument . First , if this were merely an
administrative convenience to avoid activating the CALIBRATE
function without first checking the CU3 4 temperatures , the same
result could be achieved by using the black key temperature
probe . Klimik and Shaffer both testified that with the black
key probe , the coordinator could , before activating the
CALIBRATE function , simply press the escape key , pull up the
appropriate scree n , and , using the black key probe , get a
temperature reading on each of the CU3 4 s without activating the
CALIBRATE function.
The obvious inference to be drawn from this is that
Brett e l l did not have suffic ient confidence in the sc ient ific
reliab i l ity of using the black key probe for that purpose ,
notwi thstanding the many safeguards built i nto the Draeger
equipment. Of course , this would be consistent with his
unwavering testimony that the black key probe could only be
verified for accuracy by indirect means after first measuring
the solution temperatures with an independent NI ST-traceable
thermomete r . And Brett e l l , as we ll as most other witnesses ,
would leave the step i n the procedure i f writing it anew today .
111
I n the seventeen years that the Alcotest 7 1 10 has been in
use in New Jerse y , neither Brettell nor his successors ever took
steps to remove the NIST step from the check procedure and
replace it with the black key probe as an administrative
conveni ence before activating the CALI BRATE function .
My second point of reli ance is based on Brette l l ' s very
credible and forceful testimony when confronted with the above
quoted footnote from the State ' s September 1 9 , 2 0 1 6 letter .
Brette l l was shown the footnote and asked to read its contents
out loud , after which this col loquy occurred :
Q. Thank you . Do you agree with that
statement?
A. No , I don ' t .
Q. What don ' t you agree with?
A. Wel l , it's - it's not to confirm that
the l i quid simulator solutions are
within the accepted temperature range ,
but it's to confirm - i n a way , that's
true , but it's more to confirm that the
actual simulator , or c a l ibrating unit ' s
operating properly to get to that
temperature .
Q. And do you agree that that step was not
scientific a lly necessary?
A. Wel l , it was for me .
[ 7 T 1 4 8 - 2 5 to 7Tl4 9 - 1 2 . ]
I remember very distinctly that Brettell expressed his
initial answer , "No , I don't , " in an emphatic tone . When he
112
went on to answer what he didn ' t agree with , about half-way
through , just before s aying "in a way, that's true , " he paused
in a reflective manner , and then allowed that it would have the
effect of informing the coordinator that he could now actuate
the c a libration functio n , but that is not the purpose for the
step . The purpose is to make sure that the CU34 is operating
properly , which would be indicated by the fact that it achieved
an in-tolerance temperature reading , as measured by a NIST
traceable thermometer .
Third , after learning that the Ertco-Hart thermometers
could no longer be used , the State did not take steps to remove
the NIST thermometer step from the Calibration Check Procedure .
Ins tead , it doub led down through Baum's Dec ember 2 3 , 2 008
memorandum recommending the purchase of a new model digital
thermometer which would comply with all of the strict
requirements for NIST trac eability and would be produced by an
ISO 1 7 02 5 accredited lab . His recommendation was accepted and
the Control Company thermometer was put into use.
In the Holland litigation , defendants chall enged the use of
this substitutio n , c laiming that , under Chun's literal terms ,
only the Ertco-Hart could be us ed . The Holland Court rejected
that argument and , after a remand for an evidentiary hearing,
concluded that the Control Company thermometer was comparable
113
and a sufficient substitute for the Ertco-Hart . The State never
asserted in that litigation , either as its primary or
alternative position , that a NIST-traceable thermometer is not
required to assure scientific re liability . It did not seek
authorization to remove the NIST thermometer step from the
c alibration check procedure or to designate it as an optional
step . It certainly did not argue to the Hol land court that it
was a mere pre-step for administrative convenience that had
nothing to do with scientific reliability .
Finally , the State inte nds to leave the NIST thermometer
step in as a mandatory part of the c alibration check proc ess .
It does not seek j udicial authorization to remove it or
designate it as optional .
The evidence supports the finding that the NIST thermometer
step is an integral part of the c a libration check procedure , not
a " pre-test " or administrative convenience . Indeed , if that
step reveals a simulator solution temperature even slightly
outside the precise range allowed , the coordinator is required
to stop everything and not proceed with the CALIBRATE function .
D. Undetected miscalibrations
The witnesses agreed that it is critic a l that the CU34s
heat to 3 4 ° C , plus or minus . 2 ° C . This precise temperature
range is important because , at the correct temperature , the
114
headspace i n the CU34 will generate an ethanol concentration
within the correct tolerance to pass control and l inearity
tests .
Having the temperature in the correct range is particularly
critical for the agency CU34 when used in connection with the
CALIBRATE function. During control and l i nearity tests , the
instrument measures the ethanol concentration but makes no
internal changes . During the CALIBRATE function , however , the
instrument is essent i a l l y being instructed that the headspace
ethanol concentration it is measuring is 0 . 1 0 , and it adjusts
itself to that and bases a l l of its subsequent cal culations on
that instruction unt i l the next CALI BRATE function ( 7 T8 4 ; 1 0 T5 1 ;
1 1 Tll3 ) . If the headspace ethanol concentration is not 0 . 1 0 ,
the adj ustment and subsequent c alculations will be wron g .
Both Brette l l and Stolz testified that each 1 ° C change i n
the temperature of the simulator solution from the target 3 4 ° C
would cause a change i n the ethanol concentration of the
headspace of approximately seven percent ( 7 T 9 2 ; 1 1T 1 6 8 ) . As
Stolz expla i ned , if a coordinator performed the CALIBRATE
function with an agency CU3 4 heated to 3 3 ° C rather than 3 4 ° C ,
then " everything that i nstrument sees " unt i l its next CALI BRATE
function "would actually be reported as seven percent highe r "
( 17T16 8 ) . Performing the CALIBRATE function based on an
115
incorrect headspace calibration ( a miscalibration ) , if left
undetected throughout the remainder of the ca libration check
process , would impact l ater breath tests pe rformed on that
instrument because the coordinator would have " taught the
instrument that a .1 sample looks like a .09 3 samp l e " and then
placed the instrument back in service ( 1 7Tl6 8 ) . Thus, an
undetected miscalibration based on a too-low temperature would
have the effect of overstating the true BAC during later breath
tests .
Conversely , if the agency CU34 was heated to 3 5 ° C during
the CALIBRATE function , the instrument woul d report headspace
readings as seven percent lower than the actual concentration
being measured until the next CALIBRATE function was pe rformed .
An undetected miscalibration based on a too-high temperature
would have the effect of understating a sub j ect's BAC in later
breath tests .
The State's witnesses did not dispute that , if the
CALI BRATE function was completed using an agency CU34 heated to
the wrong temperature , then a miscalibration would occur and the
Alcotest would fail to read subsequent ethanol concentrations
correctly . It also does not dispute that , if undetected , this
miscalibration would have the effect of either overstating or
understating the results of breath tests performed on that
116
instrument , depending on whether the agency CU3 4 temperature was
too low or too high .
Using the NIST thermometer as required i n the calibration
check proc e s s would e f f ectively prevent an undetected
miscalibration from ever happening because the out-of-range CU34
would be identif ied and rep laced before the coordinator ever
began the CALIBRATE function ( 6Tl55 ; 7 Tl07 ) . Both Klimik and
Brette l l testified that coordinators are trained not to proceed
with the c a l ibrat ion check if the NIST thermometer shows any of
the CU3 4 s to be heating out of range ( 6T l 55 ; 7Tl07 ) . Thus , no
miscalibration could ever occur unle s s the NIST thermometer step
was s kipped .
The State does not dispute this . Rather , the State ' s
argument i s that the NIST thermometer i s not e s s ential because
the instrument i tse l f and other components have so many checks
and balances that it would be ( 1 ) unlikely for a mis cal ibration
to occur during the CAL IBRATE function , and ( 2 ) virtually
impos s ibl e for a mi s c al ibration to pass undetected during the
remainder of the ca l ibration check proc es s . Shaffer was the
primary proponent of this theory , although Brettell agreed with
it in h i s test imony ( 7 T 8 9 - 7 T 9 6 ) . Shaffer tes t i f ied that a
s i tuation i n which an unident i f ied mi s c a l ibration could occur
was " pretty unimaginab l e " ( 10T58 ) . Brette l l , referring to
117
Shaffer ' s theory as expressed in Shaffer's report , said that it
would be " l ike trying to line u p t he moon and a l l the planets at
the same time for that to really happe n " ( 8T 1 3 3 ) .
Shaffer noted that the NIST thermometer requirement in the
cal ibration process is specific to New Jersey and neither
required nor recommended by Draeger ( 10T3 4 - 10T3 5 ) . I n his
opinion , a check with the NIST thermometer is not necessary for
scientific rel iabil ity because of " three fundamental measurement
mechanisms" in other components used in the cal ibration check
( 10T3 7 - 10T3 8 ) . First , the Draeger temperature probes "are
measuring the solution temperature as an integrated part of the
cal ibration process bui lt into the instrumentation" ( 10T3 8 ) .
Second, the CU34 is "an independent piece of equipment
separately and independently certified and tested , " its " sole
purpose " is to heat simulator solution to the proper temperature
range , and it " has an i ndependent temperature measuring probe
inside it which operates independently and generates its
performance independentl y " ( 10T3 8 - 10T3 9 ) . Third , the simulator
solutions are independently certified for accuracy and , bec ause
of Henry ' s l aw , if the temperature of a CU3 4 were out of range ,
the headspace concentration of ethanol would be out of
toleranc e , " and this would be identified throughout the process"
( 10T40 ) .
118
Shaffer drew an exhibit de lineating each step i n the
cal ibration check process and listing the CU3 4 , probe , and
solution used at each point ( 10T 4 2 - 10T58 ; S- 4 6 ) . He opined that ,
if the agency CU34 had an out-of-range temperature , that error
would necessarily be detected unless both probes, all three
other CU3 4 s , and four of the five simulator solutions used were
also wrong or malfunctioning ( 10T4 2 - 10T58 ) . Moreover , according
to Shaffer , each of the malfunc tioning components would have to
be wrong " in tandem" with the others to avoid detection of the
errors ( 10T4 2 - 10T58 ) .
Shaffer explained that , if the agency CU34 were heating out
of range during the CALIBRATE function , the black key probe used
to perform that function would report a SIM TEMP error rather
than perform the function unless that probe , too , was
malfunctioning ( 10T50- 10T5 1 ) . He further explained :
Not only that , but they would have to be
wrong in the same direction , meaning they
would have to both be false l y , you know ,
creating and reporting a temperature too low
or too h i gh . And then even further , they
would need to be reporting in the same
direction , but also the same magnitude . It
wouldn't be enough if they were just too low
and one was , let's say , 2 degrees too low
and the other 5 degrees too low . They would
have to be wrong together .
[ 10T5 1 - 3 to 1 1 . ]
119
Thus, before a miscalibration could occur , both the agency CU34
and the black key probe would have to be incorrect .
If a miscalibration occurred , Shaffer noted that the
control test would not detect it , as the same agency CU34 and
black key probe used in the CALIBRATE function are used in that
test ( 10T53 - 10T54 ) .
However , Shaffer testified that a miscalibration would be
detected in the first step of the linearity test , when the
coordinator uses his own 0 . 04 CU3 4 and a bottle of 0 . 04 solution
( 10T54 ) . If the black key probe had incorrectly reported the
agency CU34 temperature to be in range , thus allowing the
misc alibration , then the 0 . 04 CU34 would have to '
'fail also in
the same direction and the same magnitude " for the black key
probe to consider its temperature to be in range ( 10T54 ) . In
addition , if the instrument had been calibrated to the wrong
ethanol concentration during the CALIBRATE function , then the
instrument's reading of the headspace of the 0 . 04 solution would
be out of tolerance unless the coordinator ' s bottle of 0 . 04
solution was not the concentration it purported to be ( 10T54 ) .
He explained :
To complicate matters , in this hypothetical ,
this solution , bec ause of Henry ' s Law, a
very we l l understood scientific principle ,
the foundation of what was used as wet bath
simulators , this solution needs to fail , but
it needs to fail in an opposite direction .
120
Bec ause if-if we ' re assuming in the
hypothetical that A, B and C [ the agency
CU3 4 , the black key probe , and the
coordinator ' s 0 . 04 CU3 4] are low, then in
order for us to pass this ste p , this
solution would need to be correspondingly
higher because Henry ' s Law , if it ' s truly
cooking at a temperature lower than 3 4 , then
its concentration would need to be too high
in order for it to come into the proper
tolerance range for the instrument .
[ 10T54 - 1 2 to 2 4 . ]
The same rationale applicable to the 0 . 04 portion of the
linearity test would also be present for the 0 . 08 and 0 . 1 6
portions , meaning that the coordinator ' s 0 . 08 CU 3 4 , 0 . 1 6 CU3 4 ,
bottle of 0 . 08 solution , and bottle of 0 . 1 6 solution would a l l
also have t o fail i n tandem, " i n a correspondingly incorrect
offset , " for the instrument to get through the linearity test
without detecting the misca libration and triggering an error
( l0T54 - 1 0T56 ) .
Finally , even assuming that all of these coordinated errors
occurred , in the final step of the c alibration process the
coordinator performs a solution change using the agency probe
and a new bottle of 0 . 10 solution from a different lot than the
solution used during the control test ( 10T57 ) . Shaffer
testified that the agency probe would have to be wrong in the
same way and to the same degree that the black key probe was
wrong , or it would detect a SIM TEMP error in the agency CU3 4 ,
121
which was used for the CALI BRATE function and is used again for
the final solution change ( 10T57 ) . Moreover , the 0 . 10 solution
used in the solution change wou ld have to be wrong in tandem
with the wrong solutions used during the l i nearity test , or the
ethanol concentration readings taken during the solution change
would be out of tolerance ( 10T57 ) .
Shaffer conclude d , " [ T] hat's 10 different independent
unique things failing together in an orchestrated way in order
for that scenario to hold true " ( 10T60 ) . He stated , " I almost
c an ' t even imagine i t " ( 10T60 ) . Brettel l also noted that for an
undetected miscalibration to occur , the CU3 4 s , probes, and
simulator solutions wou ld " al l have to be off in the same
direction" ( 8 T l 3 3 ) . I refer to this theory as the ten-tandem
failures theory.
Shaffer also noted that each of the four different
simulator solutions that would have to be wrong in the ten
tandem-failures theory " has its own NIST traceability trail "
( 10T58 ) . Because " those solutions would have to be wrong in
order for such a scenario t o p l ay out without fai lure b y the
instrument , " he was even more confident that " such a
hypothetical could not be rea l i z ed " ( 10T58 ) .
This theory has a certain appeal . The NIST thermometer
serves the purpose of ensuring that the CU3 4s are heating
122
'
properly. I f multiple oth e r safeguards serve the same purpose
and actually make it "pretty unimaginable" that an undetected
miscalibration could actua lly occur and lead to incorrect BAC
results , then the NIST thermometer would serve l ittle practical
purpose .
Shaffer ' s insistence that four of the f ive simulator
solutions would have to be wrong for an undetected
miscalibration to occur , if true , would be particularly
persuasive . Although lots of simulator solution are purchased
through Draeger , ( l ) they are manufactured to the spec i f ied
concentrations by an independent vendor , ( 2 ) Draeger provides a
certif ication as to the accuracy of the concentration i n each
lot , and ( 3 ) the OFS tests and certifies the accuracy of samples
of every lot before author i z ing purchase of bottles within that
lot ( 10T 1 1 6 - 10Tll6 ; 15T7 4 - 15T7 6 ; 15T1 9 2 - 15Tl9 5 ; 15T 2 2 9 -15T2 3 0 ; King
SMR 6 7 , 108 ) . Alaouie test i fied in detail about the process
used by the OFS to certify the accuracy of each lot of simulator
solution, and he noted that he could not recall any c ircumstance
in which the OFS tested a lot and determined that its stated
ethanol concentration was inaccurate ( 15Tl 9 2 - 15T2 2 7 ; 15T2 3 1 ; S-15
through S-2 4 ) . The OFS testing of the solutions does indeed
meet NIST standards and the measurement of the solutions is
N I ST-traceable .
123
The parties did not dispute this evidence , and it compels
the conc lusion that the stated ethanol concentrations of the
bottles of simulator solutions used by ADTU coordinators and
police agencies are correct . There is no basis to suppose that
any lot of mislabeled solution or wrong-concentration solution
could somehow slip through both the or iginal and OFS analyses ,
much less that unrelated lots of different concentrations would
slip through and then a l l be used during the same c a l ibration
check procedure. Thus , if the State is correct in its position
that an undetected miscalibration simply could not occur unless
four of the five bottles of simu l ator solution were wrong , then
terming the ten-tandem-failures theory " pretty unimaginable "
would be accurate .
Defendant , amicus, and part ic ipating counsel have all
essentially fa i l e d to address t he ten-tandem-fai lures theory ,
either i n expert report s , through Stolz's direct testimony , or
in their proposed findings of fact and conc lusions of law .
However , Stolz was asked about i t on cross-examination . He
posited " a scenario" in which an undetected misc a l ibration could
occur " even if a l l your solutions are absolutely correct or have
very sma l l tolerances i n concentration" ( 1 7 T 1 6 7 - 1 7 T 1 6 9 ) . He
noted that , if one were to "assume that the temperature that
Draeger use [ d] " to test and certify all of the probes and CU3 4s
124
used in a given c alibration check was 3 3 ° C rather than 3 4 ° C ,
then a misca l ibration would occur , but i t would remain
undetected because a l l of the other solution concentrations ,
whi le actually seven percent higher than reported , "would fall
neatly on the ca l ibration curve that we want to verify and it
would not indicate a problem" ( 1 7Tl6 8 - 1 7 T 1 6 9 ) . Thus, Sto l z
presents a scenario i n which it would b e possible for a n
undetected miscalibration t o occur if t h e solution
concentrations were correct and the only " problem" was that the
two probes and four simulators provided by Draeger had been
somehow "misse t " to treat 3 3 ° C as if it were 3 4 ° C .
On the surfac e , Stol z's scenario appears to target the
strongest aspect of the ten-tandem-failures theory , namely the
astronomi c a l ly-unlikely possibility that four of five simulator
solutions could somehow be wrong in a coordinated manner during
a cal ibration check . I n the Stolz scenario , the solutions could
be fine and only the six devices provided by Draeger would have
to be wron g . The Stolz scenario also posits a hypothet ical as
to how it would be possible for all six devices to be wron g ;
specifical l y , Draeger could have mistakenly misset everything to
the wrong temperature .
Brettell echoed this concern when explaining why he
considered i t necessary to include the NIST thermometer step in
125
the c a l ibration check process in the first place . I n designing
the c a l ibration check procedures , Brette l l was aware of the
importance and legal significance of "the results that come out
of the evidential breath testers , " so he wanted "to do
everything in my power to make sure the instruments are working
properly" ( 7 T2 3 8 ) . So , even though he thought "Draeger puts out
a great instrument" with many checks and balances, he "wanted an
independent test done on the cal ibrating unit to be done to make
sure that that c a l ibrating unit was working" ( 7 T2 3 8 ) . He
testified , "I wanted to make sure it was working . It ' s as
simp l e as that . And I wanted to make sure it was - I didn ' t
want to rely on Draeger to · tell me that this thing was working"
( 7 T2 40-7T2 4 1 ) .
Brettel l later explained :
I felt - it was my view of this is that the
Alcotest 7 1 10 MK I I I is manufactured by
Draeger and calibrated by Draeger . The CU34
simulator c a l ibrating units are manufactured
by Draeger and certified by Draeger . The
simulator solutions are purchased from
[ Guth] through Draeger . Draeger puts a
solution ( sic] on that , and we independently
check that and test that .
And so I wanted an independent temperature
check to make sure that the c a l ibrating unit
was working . Because the calibrating unit
is what the Alcotest is based on . And it ' s
an independent component . And so i f we
independently tested the solution it was in ,
and we independently tested the temperature
126
it was i n , at least that part of the
component and the instrument is
independently tested from Draeger . And I
fe lt that was very import ant , okay .
* * *
And it's simply bec ause of one very sma l l
part of the ca l ibration chec k , which I think
is important . But if you put everything
into Draeger • s hands as far as certifying
the solutions , the instrument , the
ca librating unit and everything else , what
if - what if there is a bias or an error in
Draeger ' s laboratory? What impact would
that have on the breath test program in New
Jersey?
And so as far as the risk assessment , I took
every step I could to independently test as
much as I could of this program
independently of Draeger to make sure that
if that happened , we have a good chance of
stopping it before it proliferated out . And
so that's my view of this situation .
[ 8T2 9 - l to 8 T 3 0 - 1 3 . ]
Brettell confirmed this is " exactly why I added this step "
( 8T3 0 ) . He later added :
The NIST thermometer would tell you that the
ca l ibrating unit is either working or not
working before you got into the probe or
anything . Because is it - I don ' t even
know, is it possible that something could go
through Draeger that the c a librating unit
and the probe are tied together and there ' s
a bias and it goes right into the instrument
and nothing catches it? Okay . And so it
you can test that with an independent
thermometer , then I'm sure that calibrating
127
unit is working and then we can move on from
there .
[ 8T l 3 8 - 7 to 1 7 . )
Brettell's concern was justified that , absent the inc lusion
of the NIST thermometer step , a potential systemic bias in
Draeger's e quipment or procedure might have gone undetected .
The NIST thermometer step has been part of the process since its
inception and , notwithstanding the fact that Dennis a l legedly
failed to use his NIST thermometer when performing three
calibration checks , there is no reason to suppose that Klimik
and the other coordinators have ever failed to use their NIST
thermometers as they were trained to do .
The problem with Stol z's '
'Draeger could have set everything
to 3 3 ° C by mistake' theory is that it does not present a
'
realistic scenario of a problem that could actua lly have
resulted from a single coordinator skipping the NIST thermometer
step . A sce nario in which both an agency ' s and coordinator ' s
equipment could a l l be misset to accept a temperature outside
the required range of 3 3 . 8 ° C to 3 4 . 2 ° C ( 1 ) could not occur
absent systemic errors in Draeger ' s processes , and ( 2 ) would be
detected unless no coordinators used their NIST thermometers .
As to the first point , Stolz supposes a type of systemic
error within Draeger that would have to result in a very large
number of misset probes and CU3 4 s . Mere isolated issues within
128
Draeger's recertification process affecting only a few probes or
simulators could not realistically lead to a scenario in which
an agency's two devices ( probe and CU3 4 ) and a coordinator's
four devices ( b lack key probe and three CU3 4 s ) had all been
misset to accept the same wrong temperature yet all c ame
together in one c alibration check procedure . Moreover , even
assuming this somehow happened at one agency , because
coordinators typic a l ly visit two agencies per day , four days per
week , the misset c oordinator's devices would repeatedly run into
a problem unless the probes and CU34s at subsequent agencies had
also been misset . Thus , only a systemic error at Draeger
resulting in a missetting of large numbers of devices could
realistic a l ly result in a circumstance in which an undetected
misc alibration could occur and remain undetected as the
coordinator who performed it moved from agency to agency .
Second, even assuming a systemic problem occurred at
Draeger causing a large number of devices to be misset , the
problem would have been detected by coordinators using the NIST
thermometer . Klimik's testimony that coordinators are trained
to do the NIST thermometer step " every time " with " [ n ] o
exceptions" and that he has , in fact , done so , was c redible
( 6Tl05-6Tl 0 6 ) . Accordingly , the Stolz theory that everything
129
from Draeger could be misset is an extremely unlikely
possibility .
This analysis , while negating Stol z ' s theory , does serve to
il lustrate the significant role of the NIST thermometer in the
ca libration process . Daily use of the NIST thermometer by the
six coordinators in the fie ld is what would reveal a systemic
bias at Draeger . This il lustrates the critic al importance of
using the NIST-traceable thermometer in this process . This
analysis also shows that the ten-tandem-failures theory is not
irrefutable , as argued by the State .
Continuing with the ana lysis , I am persuaded by other
evidence and testimony that the ten-tandem-failures theory
signific antly overstates the case in contending that ten errors
would have to happen in a coordinated manner for an undetected
misca libration to occur . Taken together , the evidence suggests
that under the right circumstances three p l ausible and
relatively minor failures , specifically in the agency CU3 4 and
both probes , could result in an undetected misc a libration .
Significant l y , none of these failures would involve any of the
simul ator solutions or depend upon speculative software bugs or
large-scale systemic error .
The State ' s position is that an agency CU3 4 temperature
that was even slightly outside the precise temperature range of
130
3 4 ° C , p lus or minus . 2 ° C , would result in a SIM TEMP error
bec ause the agency and black key probes would either ( 1 ) if
functioning correctly , recogni ze the out-of-range temperature in
the agency CU3 4 during the CALIBRATE function , or ( 2 ) if
functioning incorrectly , mistakenly read the temperature of the
coordinator CU3 4s as out-of-range during the l inearity test .
Thus, the State contends that even malfunc tioning probes would
generate a SIM TEMP error at some point during the c a l ibration
process unless a l l of the CU34s were malfunctioning in tandem
with the agency CU3 4 .
However , the evidence regarding probe value suggests that ,
in some circumstances , a Draeger probe might interpret as
acceptable a temperature range that over l aps but is not
coextensive with the actual acceptable range of 3 4 ° C , p lus or
minus . 2 ° C .
All of the witnesses agreed that if the probe value entered
by the coordinator into the instrument was not the same as the
actual probe value , then the reported temperature measurement
from that probe ( the misaligned probe ) woul d not be correct
( 6T4 4 ; 6 T 8 1 - 6 T8 3 ; 8 T l 2 7 - 8 T 1 3 0 ; 8T 1 5 7 - 8 T l 5 8 ; 9Tl 1 7 - 9 T 1 1 8 ; 10T 1 4 6 ;
1 2 T 1 3 1 ; 1 4 T 6 - 14T7 ; 1 7Tl l l - 1 7 T l l 5 ) . Klimik noted that if the probe
value entered into the instrument was lower than the actual
131
probe value , the i nstrument wou ld " read" a lower temperature
than the actual temperature of the simu lator ( 6T 8 2 ) .
The evidence also established two pl ausib le ways in which
the entered probe value could be wrong : ( 1 ) a data entry error
by the coordinator , or ( 2 ) probe value dri f t . As detailed
above , coordinators must manua lly input the probe value of the
black key probe before performing the CALIBRATE function and of
the agency probe before performing the solution change , and no
record is made of the number entered ( 6 T 69 ; 6T7 1 - 6 T7 2 ; 6T7 8 - 6 T7 9 ;
6Tl42 ) . A simp le typo by the coordinator , for example entering
'' 5 '' rather than ' " for a probe value of 106 , could easily occur
'6
and potentially go undetected . Also , during its year of use , a
probe value could drift to the point at which , by the time it is
sent to Draeger for recertification , the probe value assigned to
that probe must be changed in order to match the manner in whic h
the probe is actually measuring resistance .
Shaffer testified that entering the wrong probe value
"would absolutely give an error message . . . [ p] robably in the
f i rst step of the calibration process" ( l0T l 4 5 - 10T l 4 6 ) . He was
asked to consider a spe c i f i c example in which the actual probe
value was 108 and the coordinator incorrectly entered 9 8
( 10T l 4 6 ) . Shaffer testified that , in that circumstance , the
Alcotest wou ld report that a 3 4 ° C solution was " something l i ke
132
3 3 . 5 , maybe 3 3 . 0 , somewhere in that range , degrees C readin g "
( 10Tl 4 6 ) . Shaffer , however , only addre ssed the hypothetical in
which the entered probe value and the actu al probe value
diverged by ten points , and he was not aske d to quantify the
temperature that would be reported if the actual probe value was
only s lightly different from the probe value entered into the
ins trument .
Both Brettell and Klimik testified that a mis aligned probe
might or might not abort the calibration check proce s s ,
depending on the degree of mis alignment . Brettell testified
that , under some circumstance s , a misaligned probe might report
a s appropriate a simulator-solution-temperature range that
overlaps but is not coextensive with the actual acceptable range
of 3 4 ° C , plus or minus . 2 ° C . A probe misaligned in this way
could report as within range both ( 1 ) an agency CU3 4 that was
heating s lightly below the correct temperature range , and
( 2 ) three coordinator CU3 4 s that were heating properly .
Brette ll explained it thus ly :
Because if it happens that that probe value
overlaps the real probe value , because when
you put that probe value in there , there is
a range of resistance that that probe is
matching , okay .
So let's s ay we put a probe value of 103 and
we have a certain range , it's pos s ible that
those two probe values in a certain part of
133
that range will overlap , okay , for the
resistance . Follow me?
So that if you put in the wrong probe value
and it measures the resist ance , it might be
out of range for that number and give you
abort the test , or it could read the
resistance in that range that overlapped
what the real resist ance is and would say is
temperature is okay . so it could .
THE COURT : Would be confident that the
is as a result?
THE WITNESS : You wouldn ' t know . You
wouldn ' t know unless tested with a NIST
traceable thermometer .
[ 8T 1 2 7 - 1 6 to 8Tl2 8 - 1 0 ( emphasis added ) . ]
Brette l l thought that " most likely if you put in the wrong
number , it will not read the temperature [ as ] right " and will
abort the test ( 8 T 1 2 9 - 8Tl30 ) . He acknowl edged , however , that
because the probe value inputted by the coordinator is not
recorded, there would be no way to know if an inadvertent
mistake had been made ( 8Tl2 9 ) . The same would be true if the
probe value had drifted from the number assigned in its last
Draeger recertific ation . Most signific antly , " [ y] ou wouldn ' t
know unless you tested with a NI ST-traceable the rmometer . "
Later , Brettell acknowledged that if a probe value was
incorrectly inputte d , " the instrument may or may not pick it
up , . . . depending on how c lose to the actual probe value his
mistake is" ( 8 Tl56 ) . He explained :
134
A. Wel l , if the proper probe value was
inserted , the resistance range would be
lining up with the temperature range
equal l ike this . Okay . If the probe
value is put in differe ntly , such that
the resistance range is shifted one way
or the other , okay , now , the resistance
range is here and the temperature range
is here , there's an ove r l apping range
where that - if that resistance reads in
there , it's going to read the proper
temperature , okay . If it reads the
resistance down here , okay , it's not
going to read the right temperature .
Q. But then he removes the black key
temperature probe and inserts - and
substitutes for that the department's
temperature probe , which has its own
probe value , which he is then required
to input into that mach ine , and he does
that step proper ly , okay ?
A. Okay .
Q. Can tell me whether that ' s - that
wouldn't the difference between an
a . 0 7 9 and a . 0 8 0 on a breath test?
A. I couldn't tell that .
Q. cou l d .
A. No .
[ 8T157 - 2 5 to 8Tl5 8 - 2 2 ( emphasis added ) . ]
K l imik acknowledged that a misa l i gned probe could indicate
that a temperature was within the appropriate range , even though
it was not ( 6 T8 1 - 6T8 3 ) . He said that " [ h ] ypothetically
speakin g , " it was possible that the b l ack key temperature probe
could show a CU3 4 temperature as within range even though the
135
NIST thermometer would show that it was s lightly out of range
( 6Tl55 ) . This was hypothetical in Klimik ' s view becau s e he said
he wou ld never proceed to c alibrate the instrument if the NIST
thermometer was, not in range , but if someone did , it could
possibly happen that the process would " go ( ) through c l e a r "
{ 6T155 ) . Of cours e , if t h e CU34 was not initia l l y tested with
the NIST thermometer , the coordinator would not know that the
black key probe was incorrectly reporting a s light out-of-range
temperature as being within range .
I n addition to the problem of incorrectly entered probe
value or probe value drift , Stolz noted that the Draeger probes
could fail in such a way that changes in temperature would not
result in corresponding changes in resistance ( 1 7 T 1 2 3 ; 1 7 Tl58 ) .
If this happened to a black key probe , it wou ld fail to detect
the problem if the agency CU34 was out of range , but it wou ld
still " read " the coordinator ' s CU 3 4 s as within range .
The State ' s position is that any or a l l of these is sues
with the Draeger probes would not result in an undetected
miscalibration because , even if they occurred , if the simulator
solutions were correc t , then the ethanol headspace concentration
wou ld be out of tolerance and the c a libration check procedure
would fail at the linearity test stage . I find this
136
unpersuasive. Like Shaffer's ten-tandem-failures theory , the
State's position substant ially overstates the case.
As stated in the Calibration Check Procedure , the acceptable
tolerance in the l inearity test allows the ethanol headspace to
be "within plus or minus 5% or 0.005 , whichever is greater' ( S -
'
32 ) . Logic a l l y , given the range of this toleranc e , some out-of
range temperatures in the agency CU34 could lead to a
miscal ibration that wou ld ( 1 ) change the linearity test results
from what they would have been had the CU34 temperature been
correct , but sti l l ( 2 ) fall within the acceptable tolerance
range and appear to "pass" the l inearity test .
The State's position does not take into account the
credible testimony of its own witnesses , which establ ishes that
relatively minor inaccuracies in three components could al low
miscal ibrations to slip through undetected . And , very important
in the analysi s , the State's witnesses could not quantify the
problem because without performing the NIST thermometer ste p ,
the process l ac ks NIST traceab i l i t y , as a result of which no
scientifica l l y accurate temperature measurement of the CU34 was
ever achieved and no measure of uncertainty in such a
measurement is known . Ma j or inaccuracies wou ld be detected
because of Henry ' s Law . But , even so , the evidence does not
establish where a line might be drawn with reasonable scientific
137
reliability . The State bears the burden of proof by cl ear and
convincing evide nce . Its failure to prove this critical fact by
that s tandard , if it is indeed capable of such proof , cannot be
disregarded and results in a substantial diminution in the
scientific reliability of resulting breath tests .
Signific antly , although Brettell general ly agreed with the
ten-tandem-failures theory , he still be lieved that it was
important to include the NI ST-traceable the rmometer step in the
calibration check proce s s . He testified :
A. When I was the Director of the
laboratory , I required the calibrat [ ing]
units to be checked by a N I ST-traceable
thermometer prior to being checked by
the Draeger probes . And I - because I
wanted an independent test that was
traceable to NIST .
Q. And you haven't changed that opinion?
A. No . But I'm not the Director of the lab
anymore .
Q. I understand , but you ' re giving us your
best opinion here today as an expert .
A. Yes .
Q. So the failure to use that - so the
utiliz ation of that is nece s s ary , in
your opinion ?
A. I n my opinion , it's - you have to
understand where I ' m coming from, okay?
As the Director of the laboratory
Q. Wel l , could you answer my ques tion yes
or no
138
A. No, I woul d like to -
THE COURT : Let him answer it the way he
wants to answer it .
MR . FISHMAN : Sure , Judge .
A. As the Laboratory Director , my
responsibility is for the quality of
this breath testing program . And as you
can see from this hearing , the results
that come out of the evidential breath
testers is very important . It expands a
large number of people and there ' s a lot
of lega l , you know , ramifications of it .
So from where I ' m sitting I have a very
- you know , I have a lot of
responsibility for this . And so I ' m
going to do everything in my power to
make sure the instruments are working
proper ly .
Draeger puts out a great instrument .
The probes work fine . If you have the
solutions c a librated and the probes are
working and calibrated , the instruments
are working , everything is fine . And so
they have a design-arranged - they have
a really exuberant checks and bal ances .
And I think we - I went over this and
somebody explained them, but I think 10
or more things have to go wrong in a row
for a wrong breath alcohol value to come
out of the instrument .
With a l l that said , all that data
depends on Draeger . And from where I'm
sitting , and my responsibilitie s , I
wanted an independent test done on the
c a librating unit to be done to make sure
that that c a librating unit was working .
And so that was j ust my c al l . The
instrument reliably put out a breath
test samp l e ? sure it wil l .
139
And so that's how I fee l . This word
" necessary " keeps comin g up . It's only
necessary from where you sit and stand
on this . So that's my expl anation of
it .
[ 7 T2 3 7 - 2 to 7T2 3 9 - 3 . ]
The evidence supports the conc lusion that a misc alibration
resulting from an agency CU34 heating slightly outside the
acceptable range might not ( 1 ) trigger out-of-tolerance results
for ethanol concentration during the linearity test , or ( 2 ) be
detected by the black key or agency probe if ( a ) the probe
values entered into the instrument were incorrect , whether
because of coordinator error or probe drift , or ( b ) probe
failure occurred . Having these three errors occur in a single
c alibration check process is unlike l y , but they are nevertheless
possib le errors based on the evidence .
Signific ant l y , this evidence suggests a p lausib le
circumstance in which only three of the devices used during the
calibration check process ( the agency CU3 4 , the black key probe ,
and the agency probe ) could be slightly wrong yet ultimately
result in an undetected miscalibration . These potential errors
are not " pretty unimaginable " or " like trying to line up the
moon and a l l the pl anets at the same time . "
I find that the State has failed to show that an undetected
miscalibration could not p l ausibly occur during a calibration
140
check proc e s s if the NIST thermometer step was s kipped . Such an
undetected mi sca l ibration would result in incorrect results in
evidentiary breath tests done on such an instrument unti l the
next cal ibration .
E. Discuss ion of B aum and Alaouie
I n the previous section , I discussed in detail the bas i s
for Shaffer's opinion that the s c ientific reliability of breath
tests produced by an Alcote s t device which was calibrated
without using the NIST thermometer step would not be undermined
or c a l l ed into que s tion . Shaffer's theory required detai led
analys i s because it is somewhat complex and because it forms a
fundame ntal underpinning of the State's pos ition in this case .
In this sect ion , I will go on to discus s the " bottom li ne "
opinions rendered by two of the State ' s other experts , Baum and
Alaouie . Unlike Shaffer's theor y , the opinions rendered by
these experts were supported by several dis crete reason s . In
each c a s e , I find the reasons unpersuasive and I find it
unneces sary to provide a n extens ive discus s i on .
When Baum was a s ked for his ultimate opinion regarding the
i s sue presented in this c as e , this was the colloquy :
Q. I s i t a required legal step?
A. It's required by the Chun dec i s ion , yes .
141
Q. Doctor , is the use of the Control
Company digital thermometer , based upon
your expertise , required scientifically
in . order for the instrument to be
scientifically reliable ?
A. No, it is not .
Q. Can you p lease explain to the Court the
basis of your opinion?
A. The basis of my opinion is , there ' s a
number of systems in the instrument to
indicate and stop i f the temperature is
not appropriate .
First of a l l , as I testified recent l y ,
during a solution change , it ' s not used
or during evidential breath testing it ' s
not used .
Second , there is the CU3 4 , which is this
c a l ibrat [ in g ) unit , and the CU3 4 is
calibrated annually by Draeger
Sc ienti f ic , and that is cal ibrated to
show that it can hold the temperature 3 4
plus or minus 0 . 2 degrees Celsius .
Also , there is the temperature probes ,
whether it's the black key or agency
temperature probes that are c a l ibrated
annua l l y . And those also have to be
within range . And the instrument wi l l
not go forward with the test . There ' s
complic ated source code in the
instrument that won't al low it to go
forward if it is not reading . The
overriding decision is the instrument ,
it's not the hand [ -] held thermometer , of
whether to go forward or not with the
test .
* * *
Q. Doctor , the black key temperature probe
and the cal ibration process , what effect
does that have on your opinion , i f any?
142
A. The cal ibration and the black key
temperature probe is cruc ial to make
sure that it properly c an read the
temperature of 3 4 degrees .
Q. The agency temperature probe and the
calibration of the agency temperature
probe , what e f fect does that have on
your opinion?
A. Agai n , it is cruc ial that it ' s
cal ibrated so that it c an read the
temperature of 3 4 degrees plus or minus
the 0 . 2 degrees .
Q. The testing of the CU 3 4 simu lators , the
ca l ibration of the CU3 4 simulator s , what
e f fect does that have on your opinion?
A. Agai n , it shows that the simulators will
heat up to and maintain the proper
temperature , which is also very
important .
Q. And the testing of the simulator
solution and the lots that you referred
to earlier , what effect does that have
on your opinion?
A. That also a ffects the opinion because
it's very important to have simulator
solution with the right amount of
alcohol , because it could not be
proper l y ca l ibrated with the wrong
amount of alcohol .
[ 1 2 T 2 4 4 - 1 1 to 1 2 T2 45- 1 4 ; 1 2 T 2 45 : 2 3 to
1 2 T2 4 6 -2 2 ] .
Baum ' s first reason contains two components . He rel ies on
the fact that the protocol does not require use of the NIST
143
thermometer ( 1 ) during a solution change , or ( 2 ) during
evidential breath testing .
At the very end of the c a libration process , the coordinator
performs a solution change , using the agency CU3 4 . There is no
need to test the agency's C U 34 at that time bec ause it was just
tested an hour or two earlier with the NIST thermometer and
proven to be produc ing a solution temperature within the
required range . Then , after the calibration procedure is
completed and the coordinator leaves , the local or State Police
who are qua lified as operators in that agency are required to
perform periodic solution changes after not more than twenty-
f ive breath tests are administered . These solution changes are
conducted during the six-month cycle preceding the next
calibration chec k . I n Chun , a thorough analysis was conducted
and it was determined that with a l l of the spec ified
requirements and procedures , including a six-month calibration
check interval ( as opposed to Draeger ' s recommended one-year
interva l ) , the Alcotest device and its components would be
deemed suf f ic iently scientif ically reliable to be in good
working order . Thus , there is no need during the six-month
interval for further testing of the agency CU3 4 , which was
established in the previous c alibration check to be in good
working order by virtue of measuring its temperature with a
144
NIST-traceable thermome ter . This same reasoning applies to
breath tests administered during the six-month interval .
I n his second reason , Baum relies on the fact that the
agency CU34 is c alibrated annua l l y by Draeger . F rom that , he
concludes that it has been estab l ished that the CU34 can be
relied upon to produce in-range temperatures during that year .
For reasons previously discussed in this report , whether Draeger
uses NI ST-traceable instrumentation or not in its annual
calibration process , the device c a l ibrated does not achieve NIST
trace ability . Stated different ly , that device does not acquire
the abi lity through that process to produce temperature
measurements traceable to a NIST standard .
The same is true with respect to the first portion of
Baum's third reason , namely that the black key and agency probes
are c a l ibrated annually by Draeger and , in the course of that
c a libration , were determined to have read temperatures within
range . Again , that process does not confer on the Draeger
probes the capability of rendering a NIST-traceable measurement
result . Reliance upon the CU3 4s and the Draeger probes without
the NIST thermometer results in a temperature determination that
simply lacks NIST trace abil ity . That is the scient ifical ly
required aspect of the temperature measurement that is essential
to dete rmining the good working order of the CU34s before the
145
CALIBRATE function can be activated and the c a libration check
procedure can be comp leted .
I n the second part of Baum ' s third reason , he states that
after the CALIBRATE function is activated, the instrument will
not be able to go forward if there is a temperature error
detected by the Alcotest firmware . He continues that " [ t] he
overriding decision is the instrument , it ' s not the hand [ -] he l d
thermometer , of whether to go forward or not with the test . "
That statement is incorrect . Everyone in this case agrees that
if the " hand-held thermometer , " which is the NIST thermometer ,
does not read within range , the coordinator is not permitted to
" go forward " with the test .
After expressing those three reasons, several additional
questions were posed to Baum by way of fol low-up as set forth
above . To the extent that those fol l ow-up questions dealt with
the black key temperature probe , the agency temperature probe ,
and the CU3 4 s , Baum ' s answers added nothing to his three stated
reasons .
Finally , he was asked whether the testing for accuracy of
the simulator solutions affected his opinion . He answered
affirmative ly . However , for reasons expressed e lsewhere in this
report , the accuracy of the simul ator solutions wil l not
necessarily prevent miscalibrations if the agency CU 3 4 and the
146
Draeger probes are slightly misaligned . This is why it is so
extremely important to ascert a i n , with an independent NIST
traceable temperature measuring device , that the temperatures
are precisely within range . If those temperatures , part icularly
in the agency CU3 4 , which is used in the CALIBRATE function and
which " teac hes" the instrument what a 0 . 10% ethanol
concentration i s , are even slightly outside the allowable
tolerance , that i nstrument could slip through the cal ibration
check process and result in a miscal ibration .
There is no dispute that the accuracy of the solution
concentrations is essential . The evidence c learly supports a
finding that the testing pe rformed by the OFS achieves the
required NI ST-traceable accuracy . But that alone will not
necessarily prevent miscalibrations if temperatures are slightly
off under c ircumstances described elsewhere in this report .
Counsel for the State further questioned Baum about the
Shaffer theory , with which Baum said he agreed ( 1 2T25 1 - 1 2 T 2 52 ) .
This does not require further discussion here , because , for the
reasons set forth in the previous section of this report , I have
re j ected Shaffer ' s theory .
Accordi ngly , I do not find the reasons given by Baum in
support of his opinion to be persuasive , either individually or
collective l y . This finding is further ampl ified by my
147
assessment of Baum ' s credibility . I therefore reject Baum ' s
ultimate opinion .
Alaouie expressed his opinion in the fol lowing col loquy :
Q. Although the use of the Control Company
digita l thermometer is a required step ,
if a coordinator does not use this step
for whatever reason , would the fact that
the coordinator skipped the step make
the results of the calibration process
scientific a l ly unreliab l e ?
* * *
A . No , it does not .
Q. Why?
A. Because the Control Company
temperature - digital thermometer is
used in a qualit ative administrative
manner where the observation is only
visua l . There's no documentation of the
observation . The instrument does not
perform any adj ustments based on that
observation . And the vendor Draeger
does not require the use of that
temperature probe .
THE COURT : So it's bec ause it ' s not
recorded
THE WITNESS : Correct .
THE COURT : it's bec ause there are no
manual or automatic prompts that would
cause an adj ustment to be made?
THE WITNESS : Correct .
THE COURT : And bec ause Draeger does not
require it?
148
THE WITNESS : Correct . And there i s a l s o no
documenta�ion of that observation as
well .
THE COURT : That was the fir s t thing I
a s ked .
THE WITNESS : Yes .
[ 1 6Tl0- 1 8 to 1 6 Tl l -2 4 . ]
Counsel for the State fol lowed up with two additional questions ,
asking whether the annual testing by Draeger of the black key
temperature probes and CU3 4 s played a role in his opinion .
Alaouie answered a f f i rmative ly . With respect to the black key
temperature probes , he stated :
A. The black key temperature probe or the
agency temperature probe are the one s
that are actually monitoring the
temperature of the solution . Both of
these are NIST traceab le . And the
whatever l i ke status mes s ages will be
triggered due to the fact that the
temperature is out of tolerance will be
reported by those spec i f i c temperature
probe s , whether it's the bl ack key or
whether it ' s the agency's temperature
probe .
[ 1 6T l 2 -6 to 1 4 . ]
With re spect to the CU3 4 s , he stated :
THE WITNESS : Yes , it does . Because the
s ame thing, the CU34 gets cal ibrated
annually . It comes with a certificate
of accuracy to NHTSA, which i s N-H-T-S
A, which stands for the National H ighway
and Traffic Safety Adminis tration .
[ 1 6 T l 3 - 8 to 1 2 ] .
149
I do not find any of these reasons, individually or
collective l y , persuasive as a basis for Alaouie ' s opinion . His
first reason is that the coordinator only makes a visual
observation of the NIST thermometer temperature reading , but
does not record the result . Whi le this is true as a statement
of fact , it ignores that it is a mandatory part of the
cal ibration process and , when a coordinator certifies that he
has performed a l l required steps in that process , he i s , in
effect , documenting that he observed a temperature reading
produce d by the N I ST-traceable thermometer in each CU34 between
3 3 . 8 and 3 4 . 2 degrees Celsius . The fact that the specific
reading is not memori a l i z ed does not detract from the importance
of this step . Indeed , if this step is not successfully
completed , the protocol prohibits the coordinator from
continuing with the cal ibration check procedure .
The lack of recording of the NIST thermometer temperature
readings is no different than the lack of recording of the entry
of the correct probe value . Nowhere does the coordinator write
down nor does the i nstrument capture the actual probe value the
coordinator entered . Therefore , by Alaouie's reasoning , it is
not documented that the coordinator entered a probe value that
matches the probe value assigned to his black key probe or that
which is assigned to the agency probe . It is left to the
150
trustworthiness of the coordinator to do it in a diligent and
reliable manner and , when signing his certification , indirectly
documenting that he did so . No one would suggest that entering
the correct probe value is not extremely important . Indeed , the
certificates of accuracy issued by Draeger for the black key and
agency probes state s : " For accurate temperature readings , the
probe value on this certificate , noted below, must be programmed
into the Alcotest 7 1 1 0 " ( S - 3 3C ) .
Alaouie ' s second reason is that " [ t] he instrument does not
perform any adj ustments based on that observation . " Once the
CALIBRATE function is activated, his statement is correc t .
However , he agreed with my c l arification or ampl ification of
that re ason that "it's because there are no manual or automatic
prompts that would cause an adj ustment to be made . " If the NIST
thermometer reading is out of range , the coordinator never
activates the CALIBRATE function . This constitutes a manual
prompt that there is a SIM TEMP error , and it directs the
coordinator to stop everything and refrain from activating the
CALI BRATE function unless the malfunctioning CU3 4 is replaced
and , after heating for an hour , produces a readi ng from the NIST
thermometer that is within range .
Alaouie ' s statement that the digital thermometer step is
merely used i n an " administrative manner " is consistent with the
151
State's position in this case that it is nothing more than a
" pre-ste p " that was put into the procedure for administrative
convenience so coordinators would not encounter a waste of their
time if they blindly activated the CALI BRATE function only to
get a SIM TEMP error through the black key temperature probe ,
which would abort the test . If that happened , the coordinator
would either start a l l over again or be required to take the
Alcotest device out of service . As I have discussed elsewhere
in this report , and particularly in Section IV ( C ) , this
characteriz ation by the State is completely unsupported by the
evidence and I rej ect it .
Alaouie's third reason , that Draeger does not require the
NIST thermometer requires little discussion . Each State tailors
its own system to its own needs and specifications , putting in
additional safeguards as it deems appropriate beyond those
minima lly required by the manufacturer . New Jerse y , under
Brettel l's very capable direction , inst alled a number of these ,
such as testing the simu lator solutions separately in the OFS ,
c alibrating devices fol lowing the New Jersey c alibration check
process when rec eived from Draeger ( either new or after being
returned from a repair ) , and requiring a one-hou r , rather than
thirty-minute , heat-up time . These are a l l beyond Draeger ' s
recommendations . Likewise , as a result of based on Judge
152
King's recommendation , the Court shortened the ca libration time
to six months , rather than the one year recommended by Draeger .
Indeed , in addition to the importance of NIST traceability of
temperature measurements , one of Brettell's primary reasons for
inserting the NIST thermome ter step was to assure that a
scientific ally reliable temperature measurement would be
obtained by a N I ST-traceable thermometer , separate and
independent from Draeger and the Alcotest instrument .
Al aouie ' s answer to the fol low-up questions cited above ,
are likewise unpersuasive as a source of support for his
opinion . I n the first , he states that the Draeger black key and
agency temperature probes are NIST traceab le . For the reasons I
have previously stated at length , they are not . Alaouie's
statement constitutes an acknowledgment that NIST trace ability
is essential to the temperature measurement . However , his
statement that NIST traceability is achieved with the Draeger
probes alone is unsupported by the evidence .
I n his other fol low-up answer , Al aouie said that his
opinion was also influenced by the fact that the CU34s are
c a librated annually by Draeger with a certificate of accuracy to
NHTSA standards . Such a certification is far removed from the
requirements for NIST traceability . Like the Draeger probes ,
the good working order of the CU34s cannot be determined in a
153
scientifically r e liable manner without the initial use of an
independent NI ST-traceable thermometer .
According l y , I reject Al aouie's opinion that fai lure to
perform the NIST-traceable step in the calibration process does
not c a l l into question or undermine the scientific reliability
of the cal ibration process and subsequent breath test results
produc ed by that i nstrument .
F. Discussion of Brett e l l
Of the State's four expert witnesses , the opinions rendered
by three of them ( Shaffer , Baum and Alaouie ) on the ultimate
issue in this case were expressed in definitive terms in favor
of the State ' s position . For the reasons already state d , I have
rejected those opinions as unsupported by the evidence .
The opinions rendered on the ultimate issue by the State ' s
other exper t , Brette l l , cannot be so simply described . Excerpts
of his testimony can be picked out which might seem to support
the State ' s position that fail ing to use the NIST thermometer
will not undermine or c a l l into question the reliability of the
cal ibration procedure or resulting breath tests . Other excerpts
are to the contrary . A ful l reading of Brete l l ' s testimony is
necessary for a fair assessment of what his opinion actual l y i s .
I do not mention these potential ly conf l icting aspects of
his testimony as indicating any measure of evasiveness ,
154
deceitfulne s s , lack of knowledge , bia s , or the like . I n section
I I I ( A ) ( 2 ) , discussing Brette l l ' s qualifications and credibi lity ,
I stated that he answered all questions candidly and
forthrightl y , regard l e s s of who was asking them, that he was
very si ncere and careful in answering , and that he disp layed a
very high level of appreciation for the solemn respons ibility he
had in se lect ing a breath testing device and developing
s c ient i f i c a l l y reliable protocols to achieve , as best as could
be done , the highest level of sc ientific reliabil ity in breath
test result s . I concluded that his tes timony was very credible
and his opinions are entitled to very substantial weight . I
adhere to those a sse s sments . I al s o adhere to my credibility
a s s e ssment comments that Brettel l ' s knowl edge of the Alcotest
7 1 1 0 , the c a l ibration check procedure ( which he developed and
authored) and the sa feguards in it , and New Jersey ' s breath
testing program are c le arly superior to that of any other
witne s s in this case .
Based upon my observations of Brettell ' s tes timony over two
f u l l days and his demeanor in rendering that testimony , and now
having read through the transcripts of his testimony , this is my
conc lus ion . Brette l l bel ieves that the Alcotest 7 1 1 0 i s a
reliable breath testing ins trument that produces reliable breath
test resul t s . After a l l , it was he who was largely responsible
155
for tes ting and validating the instrument and recommending its
purchase for use in New Jersey to replace the Breathalyzer
ins trument . And , in Chun , after a very protracted hearing ,
Judge King rendered a comprehensive and thought ful report in
which he concluded that the device is gener al l y scientifically
reliable . The Supreme Court then conducted its own exhaustive
analys i s of the record and in a comprehensive opinion concluded
that the device is suffic iently sc ienti fically reli able to al low
its reports to be admitted in evidence .
Everything stated in the preceding paragraph , however , is
tempered by a n indispen s able qual ification , namely that a l l of
the necess ary procedures and s a feguards for testing the device
and administering breath tests with it are fol lowed .
Certainly , the Chun court expre s s ed this qualif ication in
stating that it had " no doubt that the device , with the
safeguards we have required , is suffici ently s c ientifically
reliable that its reports might be admitted . " 1 9 4 N . J . at
158 .
My analys i s of Brettel l ' s testimony l eads me to conclude
that the overriding thrust of his testimony and ultimate opinion
regarding the role of the NIST thermometer in the c a l ibration
procedure weighs in favor of the qua l i fication that the 7 1 1 0 is
a good breath te sting device that produces r e l iable breath test
156
result s , if a l l requirement s22 are complied with , use
of the NIST thermometer .
I n other words , Brette l l holds two opinions relevant here ,
namely that the device is generally reliable and that us e of the
NIST thermometer in periodically cal ibrating it is a necessary
component in a s s uring that rel iabil ity . These opinions are not
at odds with each other and are certainly not mutua l ly
exclus ive . Indeed , their harmonization should be readily
understandable in l i ght of the extreme measures taken by
Brett e l l and his OFS col league s to test and val idate the device ,
to develop protoco ls and safeguards to achieve the highest leve l
of sc ientific reliability pos s ible , and to put the ins truments
into the f i e l d , knowing they wou ld be in the years to come
essentially the final arbiter of guilt or innocence of many
thousands of individu a ls - that is i f they are in good working
order , and the breath test is administered correctly by a
qua l i f i ed operator .
My finding based on Brette l l ' s overall tes timony i s that he
holds the opinion that s kipping the NI ST thermometer step would
22
I do not suggest that " a l l requirement s " should be taken
l itera l ly . I am aware that there might be s ome requi rements
that are quite per functory or insignific ant and not performing
them would be of little consequence in potent i a l ly af fecting
s c ientific r e liab i l ity .
157
undermine or c a l l into question the s c ienti fic r e l i abi lity of
the c a l ibration proc e ss and breath test results .
I n this report , I have quoted a number of pass ages from
Brette l l ' s testimony that i l lustrate the point . He testified,
for example , that the NIST thermometer step , along with other
required steps in the calibration proce s s , was made a part of a
group of steps that were col lectively nece s s ary to ensure the
s c ienti fic rel iabil ity of the proce s s . ( supr a , 3 5 - 3 6 ) . He
further testified that , because the accuracy of the CU3 4
temperature is " extreme ly , extremely important , " the NIST
thermometer step was put into the proc e s s " to make sure that the
calibrating unit was tested against the standards of NIST when
before we started anything . '' ( supra , 8 4 ) . He said , " I took
every step I cou ld to independently test as much as I could of
this program independently of Draeger to make sure that i f 11
there was " a bias or an error in Draeger ' s laboratory , " we wou ld
''have a good chance of stopping it before it pro l iferated out , ''
and that was " exactly why I added this step . " ( supra , 12 7 ) .
I n addressing the " neces s ity " of the N I ST thermometer step ,
Brette l l s aid :
Draeger puts out a great instrument . The
probes work f ine . I f you have the solutions
calibrated and the probes are working and
158
ca librate d , the ins truments are working ,
everything is f ine .
[ s upr a , 1 3 9 . ]
In other test imony , he made c l ear that the only way to make
sure that the Draeger probes are working correctly is by
indirect means , which i s rel iant upon prior testing with the
N IST thermometer . He explained :
The only thing that gets checked with that
[ the NIST thermometer ] is the c a l ibrating
unit . The ( Draeger ] probes do not . The
probes are double checked once
the c a l ibrat [ i ng ] unit is checked and
working and up t ( o ] temperature . I f you put
the probe in there and the probe reads the
temperature , then now you know the probe i s
a l s o working .
[ 8 T 1 1 6 - 1 4 to 2 0 ( emphasis added ) . ]
On another occ a s ion , when a s ked what would be the
consequence of skipping the NI ST thermometer step , Brett ell
began his answer by s aying i f you went on with t he c a l ibration
procedure " and everything ' s working properly , " you would l i ke ly
get a correct reading because of the many " checks and balances
in there with the tempe rature probes , " so that if that step is
left out , " a s long as everything else i s working properly on the
instrument , you ' re going to get accurate readings " ( 7T97 ) . Once
again , Brettel l expressed the view that you would probably get a
good reading because the 7 1 1 0 i s generally reliab l e , but that
would be the case only if everything is working properly . And ,
159
throughout h is testimony , he reiterated that the only way to
make sure a l l of the Draeger components are operating properly
is by starting with the independent NI ST-traceable step in the
c alibration procedure .
On another occas ion , when pre s s e d about the accuracy of
results coming through the " Alcote st machine , " Brettell said
" the reason that you are doing this test with the cal ibration i s
t o make sure that that ' s a l l working " ( 8 T 4 4 ) . He then went on
to say : "When you put a certified solut ion into the cal ibrating
unit , and you set everything up properly and running and you get
out the same concentrat ion , you have verified that everything i s
working properly " ( 8 T 4 4 ) . This reaff irms that " s etting
everything up properly " means complying with the c alibration
check procedure . In turn , with an accurate s imu lator s o lution ,
and the application of Henry ' s Law, obtaining a correct reading
on the nomi nal ethanol concentration wi ll verify that everything
is working properly . Again , the ver i f i cation of an accurate
result is dependent upon complying with the procedure , including
the NIST thermometer .
I n another portion of his tes timony , Brettell was
questioned about what would happen i f , hypothet ically , a NI ST
traceable thermometer was not us ed in the cal ibration proces s .
He responded that " i f the probes are working properly and the
160
solutions are certified properly and the calibrating unit is
heating u p properly , you ' re going t o get an accurate reading on
the Alcote s t 7 1 1 0 MKI I I - C " ( 7T 1 5 6-7T1 5 7 ) . Once agai n , he
conditions the likel ihood of an accurate reading on the Draeger
probes having worked properly in the calibration proce s s . In
tur n , as his other testimony repeatedly establishes , the good
working order of the Draeger probes cannot be directly
determined through the Alcote st firmware , but mu st be indirectly
verified by a prior temperature measurement with the NI ST
thermometer .
I n Augu st 2 0 1 7 , in lieu of furn i s hing an expert report in
antic ipation of his expert tes timony , Brette l l submitted to a
Q&A st atement conducted by a State Police detective and two
attorneys from the Attorney General ' s Office representing the
State in this case . I n his testimony in this hearing , he
conf irmed that he was a s ked whether failing to use the NI ST
thermometer would undermine or c a l l into que stion the s c ientific
rel iability of the breath test subsequently perf ormed on that
instrument and that he gave the fol lowing answer :
My answer : As as all of the
of the instruments black
were
no .
[ 8 T3 7 - 2 4 to 8 T3 8 - 1 ( emphas i s added ) . ]
161
Once again , Brette l l would expect an accurate reading but his
expectation is qualified by the condition that a l l of the
components , including the black key temperature probe , were
operating properly .
From the tota lity of Brette ll ' s testimony and in
recognition of his high level of credibility and knowledge , I do
not attribute these qua lifying comments to hedging , lack of
certai nty , or evasivene s s . I attribute them to his honest
belief that the 7 1 1 0 is a reliable breath testing instrument ,
but that reliabi lity depends very substant ially on the us e of
the NI ST-traceable thermometer in the c alibration proce s s .
Brette l l ' s test imony , taken as a whole , supports the finding
that f a ilure to use the NIST thermometer in the cal ibration
process does undermine or c a l l into que s tion the scient ific
reliab i lity of the calibration process and of breath test
results produced by that device .
G. Other states
The State asks me to find that " [ t ] he use of a NI ST
traceable digital thermometer by a coordinator to test the
temperature of the simulator solutions before beginning the
' Cal ibrate ' function to cal ibrate the Alcotest instrument
is not done in any other state " ( Pb 7 7 ) . It contends that there
is " uncontroverted evidence that no other state or j uri sdiction
162
that uses the Alcotest 7 1 1 0 MK I I I-C , or a wet-bath s imu lator in
its recal ibration protoco l , requires this pre-te st temperature
check to verify the temperature before beginning the c a l ibration
procedure " ( Pb 5 3 ) . The fact that the NI ST-thermometer step " i s
unique to New Jersey , " the State argues , shows that " not doing "
this step i s generally accepted in the sc ienti f i c community
( Pb 5 3 ) .
I re j ect the State ' s proposed f i nding of fact on this
point . The evidence i s insufficient for any finding regarding
the manner i n which other states us ing the Alcotest 7 1 1 0 have
ensured the correct temperature of any wet bath simulators used
in connection with c a l ibrating or performing linearity tests on
the instrument . Moreover , uncontroverted evidence establis hed
that the instrument was highly cus tomi zed for each jur i sdiction
and that other j uri sdictions had procedures and saf eguards not
in use in New Jersey , so the State ' s attempt to equate
procedures in dif ferent j ur i sdictions creates a f a l s e
comparison .
The State points to testimony by Shaff er and Baum as
supporting the proposit ion that the NIST thermometer step " i s
unique to New Jersey , '' and it seeks a f inding that
" coordinator [ s ] " i n other states do not " te s t the temperature of
the s imulator solutions before beginning the ' Ca l ibrate '
163
function to ca l ibrate the Alcote st instrument " with a NIST
thermometer ( Pb5 3 ; Pb7 7 ) , The evidence falls far short of
e s tab l i shing this point .
Shaffer ac knowledged that there is " a step in the New
Jersey protoc ol , the c a libration protocol s , requiring the use of
a Control Company NIST thermometer" and that this step was
" spec i f ic to New Jer s e y " ( 1 0T34- 10T35 ) . However , Shaffer agreed
on cro s s -examination that it was " [ v ] ery fair to s ay " that the
states using the instrument each " had different requirements as
to ca libration " ( 1 0T9 3 - 1 0T 9 4 ) . For ins truments sold to New
Jersey , Draeger "customi zed the 7 1 1 0 to be in compliance with "
this s t ate ' s specific c a l ibration check procedures ( 9 T l 9 ) .
Shaffer testified that " [ i ] n its heyday , " the Alcotest 7 1 1 0
was used as the exc lus ive instrument in New Jersey ,
Mas sachusett s , and Alabama ( 1 0 T 9 3 ) . He a l s o testi fied that , by
January 2 0 1 8 , only New Jers ey , Alabama , and " a few counties in
California " were s t i l l u s ing the Alcote st 7 1 1 0 ( 9 T 7 ) . Shaffer
gave no tes timony regarding how any jurisdi ction other than New
Jersey ca l ibrated its i nstrument s , whether CU3 4 s were u s e d , or
what those j urisdictions did to ensure the correct temperature
of any CU 3 4 s used before performing the CALIBRATE function .
Shaffer did testify tha t , for the Alcotest 7 1 1 0 , " the
software is highly cus tomi zed for every cus tomer , " so the
164
instruments may look the same in diff erent j ur is dictions and
" the internal hardware c omponents may be mo stly the same , " but
the instruments are dif ferent ( 9 T l 0 ) . He explained :
For applications like thi s , there ' s no
possibi lity of us being able to j u s t take
something off the she l f , as it were , and to
be able to j u s t s ell it to any j uri sdiction .
It requires a lot of customi zation . And so
much so that the software becomes the most
expensive part of what we provide in a
sys tem to a j u r isdiction .
[ 9 T 1 0 - 1 9 to 2 5 . )
Shaffer also testified that Alabama has ' ' a very robust data
analys is procedure and program in p lace " to review evidential
breath tests and check the performance of its ins truments ( 9 T2 8 -
9T29 ) .
Baum testi f ied that he "be lieve [ d ] Alabama and
Massachusetts " used a ''wet bath proce s s " but did not " u s e the
separate NI ST-traceable thermometer step which is spec ific in
New Jer s ey " ( 1 2 T2 3 1 - 1 2 T 2 3 2 ) . However , on the s econd day of his
test imony , Baum contradicted this and s aid he had no real
knowledge regarding steps other states did or did not take .
Baum s a id that he was "wa s n ' t aware of what versions " of the
Alcote s t Al abama used , and he never spoke to his Alabama
counterpart regarding the Alcotest program there ( 1 3 T 1 9 2 -
13Tl93 ) .
165
Baum acknowledged that his earl ier tes timony was to the
effect that Alabama used a wet bath s imulator and the 7 1 1 0
( 1 3T2 1 0 - 1 3 T2 1 1 ) . When pres sed on the dis crepancy , Baum
answered , " I s aid I bel ieve . I didn ' t s ay I was positive . I
said I believed . That ' s what I testified on Thursday . " ( 1 3T2 1 2 -
13T2 1 3 ) . Then , looking at Alabama ' s operator manual for the
7 1 1 0 , with a reference to a " Dry Gas Calibration Check , " Baum
conceded that " [ i ] t does appear that they did us e the dry gas "
( 1 3T2 1 3 ; D- 2 1 ) .
On cross -examination , Baum was asked about the respective
" c alibration proce s s e s " of New Jersey, Alabama , and
Massachusetts :
Q . And that was it . And you also underst and
each one of tho s e states had different
requi rements that they wanted to do in
their respective calibration proc e s s e s ,
correct?
A . Correct .
Q . Not a l l three states had the same
ca l ibration proces s , correct?
A . Correc t .
Q . Each state had requirements that were
some were different from the other
state s , correct ?
A . Correct .
Q . And some were different from what Draeger
had - what Draeger does in the
cal ibration proc e s s , correct?
166
A . Correct .
Q . S o the f act that - s o New Jersey had a
couple of steps that s ome of the other
states were n ' t us ing , correct?
A. Correct .
Q . And I ' m sure the other states had steps
that New Jersey weren ' t u s i ng , correct?
A . I don ' t know their
Q . You don ' t know?
A . I don ' t know.
[ 1 3 T 5 6 - 1 7 to 1 3 T 5 7 - 2 1 . ]
I find that Baum of fered no credible tes timony regarding
procedures in any other states .
The "Al abama Breath Alcohol Testing Program Operator
Manual , Draeger Alcotest 7 1 1 0 MK I I I C " and certain relevant
portions of the Alabama Department of Foren s ic Sc iences
Adminis trative Code were admitted into evidence and further
i l lustrate the impossibility of any meaningful comparison
between New Jersey ' s ca libration check procedures and the
procedures used in Alabama ( D- 2 l ; D- 2 2 ) . What Alabama terms a
" c al ibration check" is not the periodic procedure by a
coordinator including the CALIBRATE function and various tests ,
but rather part of the breath testing sequence itself and the
functional equivalent of the control test per formed in New
167
Jersey during an actual evidentiary breath test ( D-2 1 at 8 - 9 ; D-
22 at 1 - 1 - 3 , 1 - 1 - 1 0 ) . For its • c alibration check , " Alabama
utilizes dry gas cyl inders rather than wet bath s imulators ( D- 2 1
at 1 9 ; D- 2 2 at 1 - 1 - 3 , 1 - 1 - 1 0 ) .
Al so , in Alabama each Alcotest ins trument is sent to the
Alabama Department of Forensic Sc iences ( ADFS ) annually for a
" battery of tests • to confirm its good working order ( D- 2 2 at A
l to A- 7 ) . The ADFS performs a variety of tests and checks ,
including a linearity check with wet bath s imulators ( D- 2 2 at A-
3). I t appears that the ADFS cal ibrates each instrument prior
to running the tests , but this is not entirely c lear from the
record ( D- 2 2 at 1 - 1 - 3 ) . Details of the annual evaluation by the
ADFS were included in the code • to inform the pub lic of the
quality control or good laboratory practic e s • in p lace at the
ADFS but " do [ ] not constitute a rule " ( D- 2 2 at A- 1 ) .
Thus , even the limited record regarding Alabama ' s
procedures shows ma j or differences from New Jersey ' s , one of the
most si gnif icant being that Alabama does not s end a coordinator
into the f ield to e ither ( l ) cal ibrate the instrument , or
( 2 ) ensure that the simulator used by that agency is functioning
properl y . Plainly , Alabama procedures would not mandate a NIST
thermometer be used to check the simulator solution temperature
of the agency ' s dry gas cylinders that do not us e a solution .
168
The ADFS c a l ibrates each ins trument in-hous e , and the record i s
s i lent a s to the manner in which i t ensures that its own wet
bath s imu lators are heating to the correct temperature . The
ADFS might very we l l check its own equipment routinely us ing a
NIST thermometer . Certainly , nothing suggests that the ADFS
s imply a l lows the Alcote s t 7 1 1 0 probes to val idate the s imu lator
solution temperature when it c a l ibrates ins truments .
Nothing whatever was presented regarding cal ibration
procedures in Mas sachusetts or the counties in C a l i fornia us ing
the Alcotest 7 1 1 0 .
In addition , even a s suming that the NIST thermometer step
is " unique to New Jer sey , " no conclus ions regarding general
acceptance could legitimately be drawn , given ( 1 ) the small
number of other j urisdi ctions us ing the ins trument , and ( 2 ) the
indication that New Jer s e y , purchasing more than twice as many
ins truments as Alabama , was poss ibly the most substantial user
of the ins trument . The State ' s argument suggests that New
Jersey i s an out l ier , dif fering from a large and uniform bl ock
of " other state s " that have affirmatively chosen to skip the
NIST thermometer step . This inference i s unsupported .
The evidence shows that relatively few jur i sdict ions have
used the Alcotest 7 1 1 0 for evidenti a l breath testing and that
those that have are in the proc e s s of replacing that instrument .
169
According to Shaffer , the Alcotest 7 1 1 0 stopped being of fered
for s a l e in the United States " anywhere in the time frame from
maybe 2 0 1 2 to 2 0 1 5 " ( 10T74 ) . Brettell testified that he was
aware that " Al abama had a program" using the. Alcotest 7 1 1 0 and
that " Massachusetts was evaluating i t " at the time of the Chun
hearings in 2 0 0 6 ( 7 T 1 7 0 - 7 T 1 7 1 ) . Alabama has evidently s e lected
the Intoximeter Datamaster to replace the Alcotest 7 1 1 0 ( 9T 2 6 -
9T2 7 ) . New Jersey has se lected Draeger ' s Alcotest 9 5 1 0 to
replace the 7 1 1 0 ( 1 4 T 8 4 - 1 4 T 8 9 ) . That change has not yet been
finali z ed or imp lemented .
Shaffer e s t imated that New Jersey purchased between 6 0 0 and
7 0 0 Alcotest 7 1 1 0 instruments ( 1 0 T l 9 5 ) . He noted that Al abama
has " around 2 8 0 " Alcote st 7 1 1 0 s , and he gave no figures for how
many instruments were purchased by Mass achu setts or the four
counties in Cali fornia ( 9T 2 7 ) .
These facts suggest that , far from being an out l ier , New
Jersey was such a substantial us er of the Alcote st 7 1 1 0 that no
valid conclusions regarding general acceptance of Alcotest 7 1 1 0
cal ibration procedures cou ld be made that exc luded thos e used
here .
H. list
The State also argues that the general acceptance of " not
doing " the N IST thermometer step is " further borne out by the
170
fact that the CU- 3 4 s imulator is on the Conforming Products Li s t
( ' CPL ' ) . " Citing the King SMR in Chun , the State notes that the
CU3 4 was " tested and evaluated by Volpe , a part of the Research
and Innovative Technologies Administration of the U . S .
Department of Transportatio n , to make sure that it meets the
model specifications for a wet bath s imulator as set forth by "
the National Hi ghway Traffic Safety Administration ( NHTSA )
( Pb 5 3 ) .
The presence of the CU3 4 on the CPL is merely an indication
that the device is generally appropriate for purchase , but it
does not inform the i s sue of whether , whe n , or how the
performance of the device should be periodically checked with a
NIST thermometer . I ndeed , the f act that Draeger annually checks
and certi fies each CU3 4 for accuracy us ing its own NIST
thermometer indicates a recognition that inclus ion of the device
on the CPL does nothing to ensure the continued performance of
individual CU3 4 s .
Moreover , the Chun hearing testimony of Edward Conde , the
Volpe employee who performed various testing on the Alcotest
7 1 1 0 , undermines rather than supports the State ' s po s ition
regarding the use of the NIST thermometer .
At the time of the Chun hearings , Conde had worked at Volpe
for twenty years ( King SMR 1 3 1 ) . He testi f ied that Volpe tested
171
and evaluated both evidential breath testing ins truments and
c a l ibrating units , and he noted that the evaluations are " for
the benefit of States when they ' re making purchasing de cis ions .
It ' s j ust a recommendation " ( Chun 1 T 4 5 ) . " I n 1 9 9 6 , 2 0 0 3 , and
2 0 0 6 , Volpe tes ted dif ferent firmware vers i ons of the Alcotest
7 1 1 0 to determine if they met the mode l spec i f i cations
recommended by NHTSA" ( King SMR 1 3 0 -3 1 ) .
Conde was off ered as an expert in the chemi stry of breath
testing ( King SMR 1 3 1 ) . Judge King found him to be " very
credible and candid , " and he "was quite impressed" with Conde ' s
testimony ( King SMR 1 3 7 ) .
Conde testi fied in detail as to how Volpe tests breath-
testing instrume nts and cal ibrating units ( King SMR 2 8 - 3 0 , 1 3 4 -
35 ) . He exp la ined that , when testing breath-testing instruments
such as the Alcotest for prec i s ion and accurac y , Volpe used wet
bath s imulators manufactured by Guth and Repco " to introduce a
certain concentration of alcohol into" the instrument ( Chun
1 T 5 5 - 1 T5 8 ) . Then the fol lowing exchange occurred :
Q . To check the s imulator temperature , what
piece of equipment i s used?
A . The Draeger device has a thermistor
probe , but I independently wi ll use a
NIST thermometer to make sure that the
temperature is what the probe s aid it
was .
Q . Would that thermometer also be traceab l e ?
172
A . That ' s NIST traceabl e , yes .
1 T 5 8 - 1 8 to 2 5 . ]
Thus , when evaluating the Alcotest 7 1 1 0 and using Volpe ' s own
wet bath simulators , Conde did not s imply rely on e ither the
good working order of Volpe ' s s imu lators or the Alcotest
temperature probe s . Rather , he independently verified the
s imulator solution temperature u s ing a NIST thermometer .
I n addi tion , the Chun tes timony of Chappe l l , the former
N IST employee who was qua lified as an expert in legal metrology,
contradicts the State ' s sugge stion that inclus ion on the CPL
somehow e l iminates the subsequent need for a NIST-traceable
thermometer chec k .
Chappe l l testified in general regarding the principles of
legal metro logy . He s a id that " [ i ] n order to have confidence in
the operation " of a " legal measuring instrument , " " responsible
official s " use a three- step proc e s s of "metrological control , "
spec i f i c a l l y , ( 1 ) type evaluation or approval ; ( 2 ) initial
veri fication ; and ( 3 ) subs equent veri fication 3 T8 8 ; King
SMR 1 5 3 ) . By following this proc e s s , " the responsible officials
cou ld have some confidence that the ins truments that are
providing this evidence in the field or measurements in the
field were under control or giving an accurate reading" ( Chun
3 T8 8 ) .
173
Testing by the NHTSA and inclusion on the CPL i s merely the
first step , i . e . , type evaluation or approval 3T89-3T94 ) .
" I t i s for information to - for the regulators and users of the
instrument to indicate that . this manu fac turer i s capable
of measuring - of manufacturing such an ins trument and it meets
these spec i f i cations " 3 T 9 3 -3T9 4 ) .
Regarding the Alcotest , Chappe ll s aid that , in New Jers ey ,
the cal ibration check proc e s s i s the initial veri fication step
for new ins truments and the subs equent verification step for
instruments already in the f i e ld 3T 1 1 6 - 3 T l l 8 ) .
The temperature of the s imulator solution " has to be
correct in order to get a reference sample of known
concentrat ion " 3T143 ) . Chappe ll testified , " I n subs equent
veri fication , of cours e , the ins trument - the temperature
measuring i nstrument as soc i ated with determin in g the temperature
of the reference solution would be verif ied , would be calibrated
or veri f ied , me aning that it would be c ompared with a measuring
device that has trace ability to temperature measuring reference
standards maintained by the national measuring in s titute or
NIST" 3T137 ) .
Chappel l ' s test imony i s consi stent with the conc lusion that
inclusion of an instrument on the CPL is only the first step in
the three-step proc e s s of " metro logical contro l " and that a
174
NI ST-traceable thermometer should be used to check the simulator
solution during subs equent cal ibration procedures .
V. FINDINGS OF FACT AND CONCLUS IONS OF LAW
A. of fact
1. Brette l l inc luded the NI ST-traceable thermometer step
in the cal ibration procedure ( D- 3 2 ) from the very beginning of
New Jersey ' s use of the Alcotest 7 1 1 0 , approximately seventeen
years ago .
2. He inc luded this step for s c ientific reasons , to ensure
the good working order of the CU3 4 s by measuring the s imulator
solution temperatures at the beginning of the c a l ibration
proc e s s and establishing their in-tolerance accuracy to a NI S T
standard .
3. It is critical to the proper operation of the Alcotest
instrument that the simulator-solution temperatures be within
the correct range when performing the CALIBRATE function ,
running control and l inearity tests , and performing a s o lution
change .
4. This requirement was inserted into the c a l ibration
procedure as a mandatory part of the procedure .
5. As Brettel l acknowledged , a l l of the steps in the
c a l ibration procedure are c o l lectively s c ienti fically neces s ary
to the reliabil ity of the c a l ibration proce s s .
175
6. This requirement was put into the procedure long before
there fore , i t was not mandated by a court but was
voluntarily put in by the chief forensic s c ientist in New
Jers ey .
7. The requirement has remained part of the protocol
continuously s ince its inception .
8. I n the present litigation , the State has expre s s ly
s t ated that it has no intention of removing this step as a
required part of the calibration procedure , and is not
requesting court author i z ation to do s o .
9. Prior to two Attorney General memos suggested the
s c i entific importance of this step . DAG Stephen Monson , advised
prosecutors in his August 2 3 , 2 0 0 5 memo ( D- 1 7 ) to provide
certificates of accuracy of the NIST-traceable thermometer in
discovery in DWI cases because that document , together with
others , serves to " s upport " the cal ibration report and
c a l ibrating unit new standard solution report , which mu st be
placed in evidence as one of the longstanding foundational
documents to establ ish the good working of the device , which in
turn renders the BAC reading admis s ible in evidence . I n his
Apr i l 3 , 2 0 0 6 memo ( D- 1 6 ) , DAG Monson provided legal advice
regarding temperature probe documentation in DWI cases . He
stated that the NIST-traceable temperature measuring system
176
information shou ld be recorded directly on the calibration
record a s part of the documentation " s atisfying the foundational
burden of proof of proper operation of the instrument . "
10. Coordinators began handwriting the serial numbers on
their reports after the is s uance of the April 3 , 2 0 0 6 memo .
When e f forts to revise the firmware to capture the serial
numbers on the printed reports proved unsuc c e s s fu l , Alaouie
i s sued a memo on March 1 2 , 2 0 1 3 , establ i shing a procedure for
writing the serial number of the NIST-traceable temperature
measuring system on a pre-printed portion of the calibration
report .
11. When Draeger informed the OFS that it would no longer
perform annual c a librations and is sue new cert ificates of
accuracy for Ertco-Hart digital thermometer s , the State did not
choose to e l iminate this step , nor is there any official record
of any internal discuss ion or s u ggestion that consideration be
given to deleting this step .
12 . Instead , Baum is sued a deta iled memorandum on December
2 3 , 2 0 0 8 ( S - l O C ) , stating that calibration of an Alcotest 7 1 1 0
requires the use o f a N IST-traceable thermometer to as sure an
accurate temperature determination of the s imulator solutions .
He set forth five detailed criteria for a new NI ST-traceable
thermometer to replace the Ertco-Hart . He recommended the
177
Control Company digital thermometer , which he stated met the
required criteria and would be " acceptable for temperature
determination . " His recommendation was accepted by ADTU
official s , and the change from Ertco-Hart to Control Company was
implemented . Notwithstanding any personal views that Baum may
cl aim to have held to the contrary , his official position acting
as a s c ientist and in his capacity as Director of the OFS was
that a NIST-traceable thermometer should remain as a mandatory
step in the c a l ibration procedure .
13. The switch to Control Company generated the State v .
Holland litigation , in which two Appellate Division dec i sions
were i s sued in 2 0 1 1 . Holl and 4 2 2 N . J . Super . at 1 8 5 , and
Holland II 4 2 3 N . J . Super . at 3 0 9 . The defendants chal lenged
the switch , urging the court to find that only the Ertco-Hart
thermometer was authorized in Chun and that no substitute could
be allowed . I n that litigation , the State never as s erted ,
either as its primary or alternative position , that use o f a
NIST-traceable thermome ter was not scientifically nece s s ary to
as sure rel iability of results . Instead , it adhered to the
position that a NIST-traceable thermometer was nece s s ary for
that purpose and the Control Company digital thermometer met the
requirements of N IST traceabi lity .
178
14 . Putting as ide ver i f ic ation during the cal ibration
check proce s s of the s imu lator solution temperatures , a l l other
aspects of the ca l ibration process include methods to repeatedly
verify accuracy or steps that are more stringent than Draeger
requires or recommends . These are : ( a ) all Alcotest 7 1 1 0
instruments , when received i n New Jersey from Draeger ( e ither
new or after being returned from a repair ) are recal ibrated
fol lowing the New Jersey cal ibration protocol before being
placed in service i n the fie l d , notwithstanding that Draeger had
i s sued a certi f i cate of accuracy for them; ( b ) the s imulator
solutions , after being received from Draeger , are retested for
accuracy in the OFS ( random s amples ) although they come with a
certi f ication of accuracy from the supplier ; ( c ) although
Draeger requires only thirty minutes heating time for the CU3 4 s ,
New Jersey requires a minimum of one hour ; and ( d ) although
Draeger requires calibration every twelve months , New Jersey
requires it every six month s .
15 . The temperature of a s imulator solution i s dependent
upon the good working order of the CU3 4 , a Draeger product .
Measurement of that temperature through the Alcotest instrument
during the cal ibration process i s dependent upon the good
working order of the black key temperature probe ( also a Draeger
product ) and entry of the correct probe value a s s igned to that
179
probe by Draeger . Even i f the a s s igned probe value is correctly
inputted , it may be inaccurate due to probe value drift or probe
fai lure . The probe does not measure temperature . It detects
resistance , which is temperature dependent . The Alcotest 7 1 10
ins trument then calculates and reports temperature based on that
resi stance through a series of complex cal culations utiliz ing
al gorithms imbedded in the ins trument . ( The agency temperature
probe determines temperature in the s ame way . )
16. There is no s c ientifically reliable method to
determine the required accuracy of the temperature of the
s imulator so lutions , and thus ve rify the good working order of
the CU3 4 s , other than to measure the temperatures with an
independent NIST-traceable thermometer .
17 . Brette l l deemed it nec e s s ary to verify the critical l y
important temperature o f the CU3 4 s through an out s ide and
independent NIST-traceable temperature measuring device . Such a
device would be outside of the Alcotest 7 1 10 algorithms and
independent of the Draeger equipment . He deemed this nece s s ary
in the event there was some unknown " bia s " in the Draeger l ab ,
and because it i s the only scientifically reliable way to
directly measure the temperature of the s imulator so lutions .
18 . I f , after heating for at least one hour , any of the
s imu lator solutions are determined to be out of range , based
180
upon testing them with the NI ST-traceable thermometer , New
Jersey protocol requires that the c a l ibration not proceed .
Thus , even i f the black key or agency probe were to reveal an
in-range temperature reading, New Jersey ' s protocol prohibits
coordinators from performing the c a l ibration if the NIST
traceable thermometer does not reveal correct temperatures .
19 . Although the NIST thermometer step occurs before
activating the CALIBRATE function , as it mu st to accomplish its
purpos e , it is not a mere pre-test or administrative convenience
as argued by the State . The NI ST-traceable thermometer step i s
an integral part of the cal ibration proces s , and it is nec e s s ary
to ensure sc ientific r e l i ability of the proce s s .
20. As part of its argument in this lit igation , the State
acknowledges that us ing the NI ST-traceable thermometer provides
enhanced confidence in the sc ientific reliab i l ity of the
cal ibration proc e s s and breath test results subsequently
performed on that device . Enhanced confidence incre as es
sc ient i f i c r e l i abil ity .
21. Brette l l , the State ' s most knowledgeable and
persuas ive witne s s , credibly testified that documenting the use
of a NI ST-traceable thermometer is part of the documentation
that " s upports the good working order of the devic e " and that
failure to use a NI ST-traceable thermometer results in " some
181
reduced level of certainty " in the reliabil ity of the device ,
although he was unable to quantify the amount of reduction .
22 . The Draeger black key and agency temperature probes
are not N IST traceable .
23. The Draeger temperature probes are not capable of
directly me asuring s imulator solution temperatures to a NIST
traceable standard .
24 . The Draeger temperature probes do not provide an
acceptable substitute for the NI ST-trac eable probe required by
the c a l ibration procedure to accurately measure s imulator
so lution temperature s .
25. Scient i f i c a l ly accurate temperature measurements of
s imu lator so lutions through the use of Draeger temperature
probes can only be indirectly ve r ified , based on a prior NI ST
traceable measurement that was within toleranc e , obtained by a
NI ST-traceable thermometer ( in conjunction with the us e of
accurate N IST-traceable s imulator s olutions and app l ic ation of
Henry ' s Law ) .
26 . The s imulator solutions used in the New Jersey breath
testing program are accurate . The OFS checks random s amples
from each lot produced by the supp l ier . The OFS conducts its
check procedure in accordance with proper s c ientific practices
182
and determines accuracy by reference to NIST-traceable
standards .
2 7 . Contrary to the State ' s argument , if the NI ST-traceable
thermometer step is skipped , it is not nec e s s ary that ten
separate things mu st malfunction in tandem in order for a
cal ibration check to be suc c e s s fully completed with an out -of
range s imu lator solution temperature .
28. A suc c e s s ful c a libration check procedure can occur i f
the agency CU34 i s producing a s imulator solution temperature
that i s s l ightly out of range and the black key and agency
temperature probes are malfunctioning to about the s ame extent
in the ir reported temperature measurement s , which could occur
either because of the incorrect entry of a probe value , probe
value drift that has developed, or probe failure . I n such
ci rcumstance s , the out-of -range temperature in the agency CU3 4
would go undetected but would not result in a SIM TEMP error .
As a result of the out -of -range temperature , the alcohol
concentration in the vapor used to calibrate the Alcotest would
be incorrect and would " teach" t he Alcotest instrument ah
incorrect standard by which to report alcohol concentration in
vapor introduced into the device .
29. The potential for thes e three things to s l ightly
malfunction in the manner stated would not be a common
183
occurrence , but would be far l e s s unlikely than the ten things
postulated by the State . These are plausible , evidence -based
potential occurrences .
30. As a result of such a " misca libration , '' the Alcote st
instrument would erroneously yield incorrect BAC readings when
breath tests are administered over the next s ix months , and the
error would go undetected .
31. Such miscal ibrations would e f f ectively be prevented by
use of the NI ST-traceable thermometer .
32 . Although the State admits , in accordance with the
testimony of its own experts , that fai lure to us e the NIST
traceable thermometer in the c a l ibration proc e s s reduces the
sc ienti fic reliability of the c a l ibration proc e s s and the
subs equent breath tests from that instrument , it has f a i led to
quantify the magnitude of the reduced s c ienti f ic reliab i l ity .
Brette l l suggested that it might have been pos s ible to conduct
studies for the determination of error rates or to make
probabi lity c a lculation s , but this has not been done .
33. As a cons equence of Henry ' s Law, ma j or inaccuracies in
the Draeger probes and the agency CU3 4 s wou ld be detected during
the cal ibration process becaus e , at s ome point , an out-of-range
CU3 4 temperature would generate an out -of-tolerance ethanol
headspace concentration . However , the State has f ail ed t o show
184
where this point cou ld be e s tabl i s hed with scient i f i c
reliability .
B. Conc lus ions o f law
The question posed by the Court in these proceedings is :
Does the f a i lure to test the s imulator
solutions with the NIST-traceable digital
thermometer before cal ibrating an Alcotest
machine undermine or call into question the
sc ient i f ic reliability of breath tests
subsequently perf ormed on the Alcotest
machine?
In my view , the terms " undermine " and " ca l l into question , "
describe s imi lar but d i f f erent concept s . To c a l l something into
que stion is to " ra i s e doubts about " it . Webster ' s II New
158 ( 1999 ) . To undermine something , within
the context of the i s s ue presented here , is to "weaken , inj ure ,
or impair [ it ] , often by degrees . " I d . at 1 2 0 1 .
Based upon the f indings of fact set forth immedi ately
above , and as described and analyzed in more detai l throughout
the body of this report , I conclude that f a i lure to perform the
NIST-traceable step in the c a l ibration proc e s s c learly c a l l s
into ques tion the subsequent validity of breath test results
derived from that device . The evidence r ais es substantial
doubts about the s c ient i f ic reliabil ity of breath test results
produce d by Alcotest devi ces calibrated without the use of a
NIST-traceable thermomete r .
185
The State ' s own experts have opined that reliab i lity i s
reduced and that i t is better t o leave the NI ST-traceable step
in the procedure . It has been in the procedure s i nce the
inception of u se of the Alcotest 7 1 1 0 in New Jersey . It has
remained in the proce s s s i nce the dis covery of the Dennis
problem, which has given r i s e to this proc eeding . There is no
reason whatsoever to bel ieve that , as ide from Denni s , all
coordinators have not been f aithfully fol lowing t his step over
the years in the thousands of calibrations they have performed .
The State does not ask in this proceeding for j udicial
authori z ation to delete the step . Instead , it has a f f irmatively
stated its intention to continue to require the step as a
mandatory part o f the procedure .
The evidence c learly supports the f i nding that this step
was put into the procedure to as sure scient i f ic reliability . In
the course of the Holland proceedings seven years ago , the State
" doubled down " on the nec e s s ity for the requirement and the
importance of u si n g a temperature measuring device that meets
all of the strict criteria to qu alify as " N I ST traceable , '' in
accordance with the gold st andards applicable to the NIST
criteria as we l l a s the qua l i f ic ations and accreditation of the
laboratory that would certify its NIST traceabi lity .
186
I find it extremely important and persuas ive that for all
of these years it h a s indisputably been a strict requi rement
within the ca l ibration procedure that i f the NI ST-traceable
thermometer temperature check of the simulator s o lutions in all
four CU3 4 s do not read within tolerance , t he coordinator is not
permitted to proceed with the cal ibration . I n other words ,
based upon the mandatory provi s ions of the procedure , which
continue to be in e f fect and which wi ll continue to be in e f fect
in the future , failure to achieve an in-tolerance NIST traceable
temperature reading o f these four solutions serves as a "manual
SIM TEMP error , " which prompts the coordinator to stop
everything and not proceed to activate the CALIBRATE function .
This should be treated no dif ferently than a SIM TEMP error that
is generated by the Alcotest device after the CALIBRATE function
is activate d , which automatically aborts the cal ibration proc e s s
and prevents i t from proceeding further . I n e ither ca s e , the
detected error is of s u f f icient magnitude to require termination
of the intended ca libration . The only way to directly obtain a
scientifically accurate and reliable temperature measurement of
an aqueous solution is t o insert a NIST-traceable thermometer
into it and obtain a reading .
The Draeger probes are not NIST traceab le . They cannot
produce a NIST-traceable temperature measurement . Their
187
accurate functioning at the time of the cal ibration proc e s s can
only be determined ( or ver i f i e d ) by indirect means . Thus , i f
( l) the solut ion temperatures are f irst determined t o b e
accurate b y u se o f a NI ST-traceable thermometer , ( 2 ) the
s imulator s olution concentrations have been accurately
determined by applying NIST-traceabil ity s tandards (which is the
c a s e in New Jersey ) , and ( 3 ) the concentration of ethanol in the
vapor is determined to match the nominal concentration o f that
solution ( within allowable toleranc es ) , then and only then can
it be sai d that the Draeger temperature probes " must be working
right" because of Henry ' s Law .
However , i f the NIST-traceable thermometer i s not f irst
used t o directly obtain a s c ientifically reliable temper ature
measurement of the s imulator solutions , then the temperature of
those solutions is unknown and Henry ' s Law does not compel the
conc lus ion that the Draeger probes must be working right if a
concentration result fa l l ing within the allowable tolerance i s
achieved . O f course , asc ertaining a NSIT-traceable meas urement
in the agency CU34 is of the utmost importance in the CALIBRATE
func tion, during which the Alcotest ins trument i s being adj usted
to a concentration leve l given to it by the 0 . 1 0 simulator
solution used in that funct ion .
188
For the reasons stated in this report , the evidence
supports the finding that miscalibrations can occur , whi c h , in
turn , will produce inaccurate breath test readings which will go
undetected . Although the c ircumstances in which miscal ibrations
can occur are somewhat limite d , they are indeed plausible and
can easily be prevented by s imp ly fol lowing all steps in the
cal ibration procedure , as every coordinator is required to
cert i f y that he or she has performe d , as one of the e s s ential
prerequ i s ites to admi s s ibil ity in evidence of the reading .
The State argues that the NIST-traceable thermometer step
was only put into the proc e s s to increase conf idence in results .
It impli e s that any such increased conf idence i s s l ight and
unimportant . This argument contains two serious f l aws . First,
as exp lained i n this report , confidence and reliab i l i ty are not
mutually exclus ive concepts . They are part of the s ame concept
and part of a s ingle continuum. As Brettel l credibly explained ,
as more steps are utili zed that increase conf idenc e , the greater
will be the leve l of rel i ab i l i ty achieved . Second , the evidence
c learly establishes that the NIST thermometer step was put in
the c a l ibration check procedure for the expres s purpose of
as suring the good working order of t he CU3 4 s us ed i n the
cal ibration proce s s , e s pecially the agency CU34 which actually
causes adju stments to be made in the Al cotest devic e , thus
189
c a l ibrating it to the ethanol concentration in the vapor it
produces during t h e CALIBRATE function . Accurate temperature in
the CU3 4 s is the foundation upon which the entire cal ibration
proc e s s is built and it is nec e s s ary to ensure s c ient i f ic
reliability . This i s not a s l ight conf idence builder of l ittle
or no consequenc e . It i s e s s ential .
As stated in the body of this report , Conde test i f ied
accordingly in Chun . He exp lained that in testing instruments
for Volpe , which was contracted by the NHTSA as part of the
proc e s s of approving breath testing devices and s imulators for
inclu s i on on the conforming products l i s t , he would not rely
upon probes that c ome with the device but would always start
with his own NI ST-traceable thermometer to test s imulator
solution temperatures to as sure their accurac y , and thus as sure
scient i f ic reliability of the entire proces s .
In this litigation , it was e stab l i s hed that Draeger itse l f ,
as explained by its employee , begins its c a l ibration proc e s s of
the CU3 4 s and temperature probes in its s ervice workshop by
testing the wet bath to be utili zed in the proc e s s with a NI ST
traceable thermometer produced by an independent third-party
company , Omega Engineer ing , Inc . Sha f f e r ac knowledged that
without this NIST-traceable starting point with a NIST-traceable
thermometer , the s c ient i f i c re l i abi lity of its entire
190
cal ibration proc e s s would be cal led into question and
undermined . Baum agreed with Shaffer on this point .
And Bre tte l l required the s ame starting point when he
drafted the procedure for cal ibrating the Alcote st 7 1 1 0 . He
continues to hold the opinion that NIST-traceability is
" c ritic ally important " in determining temperature accuracy in
the CU3 4 s before proceeding with the cal ibration . This is the
estab li shed s c i ent ifically accepted practice in such procedure s .
All experts agreed that breath test results are l e s s
scienti fically rel iable without the NI ST-traceable thermometer
step . The State concedes this point . Therefore , the evidence
clearly raises substantial doubts about the sc ientific
reliabi lity of breath test results without the NI ST-traceable
step , thus ca l ling into question the s c ientific reliabil ity of
those results .
Concomitantly , because the scient ific rel iability i s
weakened or impaired by some degree , the literal dictionary
definition of " undermin e " is also met . However , as I have
stated , I view the concepts of " c alling into que stion '' and
" undermining" as having di f ferent meanings , and the d if ference
requires an a s s e ssment of the degree by which scientific
rel iability is reduc ed .
191
As I perceive the ultimate question ref erred to me , it i s
whether the ac knowledged reduction i n s c ientific reliability o f
a n Alcotest device , cal ibrated without using the NIST-traceable
thermometer , is o f suffic ient magnitude or degree to deprive the
device of suffic ient sc ient if ic reliabi lity such that its
readings can be admitted in evidence . Of cours e , this is a
special kind o f evidence . It is evidence , produced by a
machine , wh ich , standing alone , proves guilt beyond a reasonable
doubt , resul ting in consequences of magnitude . It is not the
kind of evidence to which weight can be asc ribed depending upon
the quality o f the evidence . Nor can the machine be cross
examined . It i s evidence whic h , under our l aw , es tabl ishes a
per se violation .
For decade s , since the inception of breath testing in New
Jersey , proof o f the good working order of the device has been
required as mandatory foundational evidence to . allow a breath
test reading in evidence . That proof i s e s t ab l i shed by the
production of the coordinator ' s certification , atte sting to the
f act that he or she performed the ca libration in accordance with
a l l required procedures . Fai lure to have actually per formed the
NI ST-traceable thermome ter step in the procedure renders inva lid
a cert i fic ation attesting that all steps were followed .
192
In the Court found the Alcote s t device sufficiently
s c ienti f ically r e liable to al low its breath test readings to be
admitted in evidence . The Court concluded as follows :
we are confident , based on this far-reaching
and se arching inquiry , that the device i s
suffic iently rel iable s o that t h e rights of
a l l defendants have been protected . We are
sat i s f ied that , with the directions we here
adopt for pending and future matters , the
confrontation r i ghts of all defendants have
bee n , and will continue to be , protecte d .
We have no doubt that the devic e , with the
s afeguards we have required , is sufficiently
scienti f i ca lly rel iable that its reports may
be admi tted in evidence . And we are
confident that , in so concluding , all of
defendants ' rights have been advanced and
considered .
1 9 4 N . J . at 1 4 8 . ]
The quest ion therefore comes down to this . Does skipping
the use of the NI ST-traceab le thermometer , which the State ' s
witne s s e s have acknowledged reduces the level of s c ient i f i c
reliabili ty , reduce it t o a level below that which the Court in
Chun deemed " su f f ic ient l y " s c ientifically reliable to allow
readings to be admitted in evidence .
Use of the NI ST-traceable thermometer i s one of the
s a feguards required to establish sufficient s cientific
reliab i l ity . It i s not a trivial or unimportant s a feguard . Nor
is it merely important or adv i s able . It i s the e s s ential
starting point of the ca l ibration proce s s , and f ai lure to use it
193
can result in mi s c a l ibrations , which in tur n , wi l l cause
incorrect breath test results . The State , bearing the burden of
proof , has f ailed to quantify the likelihood that
mi scal ibrations may occur without use of the NIST-traceable
thermometer or the leve l s to which temperature inaccuracies
wou ld have to be off in order to trigger a SIM TEMP or ethanol
concentration error generated by the Alcotest devic e , which
would abort the cal ibration and prevent a miscalibration . The
State insists that no quant i f ication is nec es sary because there
can never be an undetected miscal ibration . This position i s
based o n the ten-things -wrong theory posited b y Sha f fer , which I
have rej ected .
The evidence i s o f suf f ic ient strength to persuade me that
without the NIST-traceable step miscal ibrations are not merely
theoretical or s peculat ive , nor so unlikely as to be such a
s l i ght pos s ibility that the i s sue can be overlooked . The
c a l ibration of each device is good for s ix months , during which
it i s presumabl y u sed to perform breath tests on many
individuals . Each of the approximately 6 0 0 ins truments now in
service in New Jersey i s c a l ibrated at least twice per year .
Out of the 1 2 0 0 or so annual cal ibration procedures , i f the
NI ST-traceable thermome ter is not used , it i s reasonable to
conclude that some number of undetected miscal ibrations wi l l
194
occur . I do reach this conclusion . This i s not speculation .
It i s grounded in the evidcence .
The magnitude o f the problem is quite evident in l i ght of
the premise upon which this spec ial master proceeding was
convened : The State informed the Court that the devices
cal ibrated by a s ingle coordinator , Denni s , over severa l years
produced 2 0 , 6 6 7 evidenti a l breath s amples , the validity of which
has now been thrown into doubt because of the St ate ' s inabil ity
to prove that Dennis used a NIST-traceable thermometer in those
cal'ibrations .
The State ' s argument turns the relevant sc ience on its
head . The State contends that the virtual infallibili ty of the
machine in the ca l ibration proc e s s serves a s the s af ety net that
assures scientific reliabi l ity , and that the us e of the NIST
traceable thermometer only adds s ome measure of conf idence that
the s a fety net i s working . The State imp l i e s that this measure
of conf idence , although unquant i f ied , i s ins ignif icant .
The evidence persuade s me that the oppos it e i s the case .
It i s the NIST-traceable thermometer that i s the s af ety net in
the cal ibration procedure . It i s the neces s ary beginning step
from which the s c ienti f i c reliabil ity of everything done in the
cal ibration proc e s s flows . It i s the only temperature measuring
device used in the proc e s s that produces NI ST-traceable
195
measurement results . It i s the sole source of determining a
scientifically r el i able temperature measurement in the CU3 4 s .
That measurement , in turn , is the only scient i f i cally r eliable
basis to determine whether the CU3 4 s are functioning properly .
It i s the only means by which the good working orde r , and thus
the accurac y , of the Draeger black key and agency temperature
probes can be indirectly veri fied .
The l ikel ihood of an undetected miscal ibration i s not
great , but it i s reasonably plausib l e . Of cours e , that
li kel ihood can be avoided s imp ly by u s i ng the mandatorily
required NIST-traceable thermometer in the cal ibration proce s s .
It might be that a mi scalibration would. only affect c l o s e case s .
Both s ides di spute this . The defense s ays that without the
NIST-traceable thermometer , the temperature in the CU3 4 s is
unknown and has no known measure of unc ertainty , as a result of
which all breath test results will be unrel iable . The State
s ays mi scal ibrations will affect no cas es because the built-in
safeguards in the machine render the c a l ibration proc e s s
infall ible , so even i f the NIST- traceable thermometer i s not
used there wi l l be no miscalibrations . As previ ously state d , I
have r e j ected that a s s e rtion .
App lying the c lear and convincing proof standard , the
evidence presented by the State has f a i l ed to produce " a f i rm
196
belief or conviction'' that the State ' s pos ition , i . e . that
f ailure to use the NIST thermometer does not undermine or call
into question the scient i f i c rel iabi lity of breath tests , i s
correct . Mut . Ins . 1 8 6 N . J . at 1 6 9 . The evidence
does not persuade me that the State ' s position is " highly
probable . '' In re 2 0 7 N . J . at 2 9 0 . On the contrary, I
f ind that i t i s unsupported by the evidence . Most certainly the
State ' s evidence is not " s o clear , direct and we i ghty and
convinc ing" to lead to a " c lear conviction , without hesitancy"
that the sci ent i f i c reliab i l ity of breath test results without
use of the NIST thermometer in the c a l ibration proc e s s will not
be undermined or c a l led into que stion . Ibid .
Indeed , the testimony of one of the State ' s witne s s e s , Dr .
Brette l l , i s a prime source of my analys i s of the evidence , my
determination o f what the facts are based on that evidence , and
my ult imate conc lus ions . H i s tes timony , cons idered in its
entiret y , has been instrumental in the determinations I have
made .
Based upon my f i ndings of fact and my ana lys i s of them, I
conclude that the State has failed to c learly and convincingly
prove that failure to perform the NIST thermometer step in the
calibration proce s s does not undermine and c a l l into question
the good working order o f the Alcotest instrument . Skipping the
197
NIST thermometer step removes from the proc e s s a substantial and
e s s ential s a feguard , the magnitude of which reduces the
reliability o f the device to a leve l that is less than
sufficiently scienti fically reliable to allow its reports to be
admitted in evidence .
Respectfully submi tte d ,
Jos Lisa, P . J . A . D .
( retired and temporarily a s s i gned
on rec a l l )
Dated : May 4 , 2 0 1 8
198
AP P E N D I X I
SUPREME COURT OF NEW JERSEY
M - 2 4 4 / 2 4 5 / 2 4
6 September Term 2 0 1 6
078390
STATE OF NEW JERSEY,
F I L E D
Plainti f f - Movant ,
APR -7 2017
v. 0 R D E R
EILEEN CAS SIDY ,
�dteb
Defendan t - Respondent .
This matter having been opened on the S tate ' s motion s , and
good cause appearing ; it is hereby
ORDERED that the motions for relaxation of the Rules of
Court ( M - 2 4 4 ) and for direct certif ication ( M - 2 4 5 ) are granted,
and the mi s ce l laneous motion for a remand, appointment of a
spec ial mas t e r , and other relief ( M - 2 4 6 ) i s granted, in part , as
provided belciw; and it is further
ORDERED that the Court hereby appoints as the Special
Mas ter Judge Joseph F . L i s a , J . A . D . , who is currently serving o n
reca l l a s a member o f Part D i n the Superior Court , Appell ate
Div i s ion ; and it is further
ORDERED that the matter is remanded to the Special Master
who will consider and decide the fol lowing que s t ion , along with
any other que s t ions that the Special Mas t e r , in his discre tion ,
deems relevant to the undertaking : "Does t he failure to test
the s imulator so lut ions with the NIST- traceable digital
1
thermometer before cal ibrating art Alcot e s t machine undermine or
call into que stion the s c ient i f i c reliab i l i ty of breath tests
subsequently performed on the Alcotest machine ? " ; and it i s
further
ORDERED that the Special Master shall determine the extent
of part i c ipat ion of any person or entity in addition to the
State and de fendant , E i leen Cassidy, provided that the Court
hereby directs that all motions for partic ipation in the remand
must be served and f i led with the Special Master on or before
May 8, 2017 ; and it is further
ORDERED that the Special Master shall hear testimony ,
including expert test imony , hear the arguments of the partie s ,
and make f indings of fact and conclusions o f law; and it is
further
ORDERED that the S tate shall make arrangements to ensure
that the Spec ial Master receives trans cr ipts of the remand
proceedings conducted pursuant to this Orde r ; . and it i s further
ORDERED that the Special Master shall complete and submit
to the Court a written report of his f indings on the question
presented expeditiously following the comp l e t ion of the hearing ;
and it i s further
ORDERED that upon the f i l ing of the Special Maste r ' s
written report , the partie s and other parti c ipants shall have
thirty days to serve and f i le brie f s wi t h the Court and ten days
2
thereafter to f ile any responding brief s ,. and that no further
�n.ibmi ssions will b<:i p<:irmitted unless requested by the Cour t ; and
it is further
ORDERED that upon 0ompletion of bri.e f ing , tbe- matter· ,shal l
be .set down for o:t;al a:t;gume;:tt a t a date and t ime t o be
establisbed by the Clerk of the Court ; and it is fur,ther
ORD;ERED that j urisd.iction is reta1ned .
wr_TNESS ' the Honorc(b'.Le Stuart Rabner, Chie·f Jusice I at
Trenton , t his 6th day of ' l\Pril , 2017 .
CI.ERK OF THE SUPREME COURT
,_
AP P E N D I X II
S TATE v . CAS S I DY
EXHIBIT LIST
Exhibit No . Des cript ion
S-1 Al cote s t 7 1 1 0 MKI I I -C with Serial No . ARWC - 0 0 6 4
S-lA Coordinator ' s bottle of 0 . 1 0 0 % S imulator Solution
S-lB Agency ' s CU34 Simulator : Serial No . DDRK S 3 - 0 0 1 7
S - lC Agency ' s Alcotest 7 1 1 0 Temperature Probe : Serial No . DDXK
P 2 - 3 0 1 , Probe Value 1 0 3
S-lD Coordinator ' s bottle of 0 . 0 4 0 % Simu lator Solution
S-l E Coordinator ' s CU3 4 Simulator : Serial No . DDRK S 3 - 0 0 0 5 ( used
with 0 . 0 4 % simulator solution )
S-lF Coordinator ' s bottle of 0 . 0 8 0 % Simu lator Solution
S-lG Coordinator ' s CU34 Simulator : Serial No . DDRF S 3 - 0 0 0 9 ( used
with 0 . 0 8 % s imu lator solut ion )
S - lH Coordinator ' s bottle of 0 . 1 6 0 % S imulator Solution
S-lI Coordinator ' s CU34 S imulator : Serial No . DDCN 0 0 5 4 ( used
with 0 . 1 6 % simulator solution )
S-lJ Black Key Temperature Probe : Serial No . DDWA P2 - 0 1 6 , Probe
Value 1 0 5
S - lK Control Company digital thermometer ( S erial No . 1 7 0 4 2 8 3 6 7 )
S - lL Agency ' s bottle of 0 . 1 0 0 % s imulator solution used for
solution change
S-lM Cal ibration D i scovery Packet
S-lN Card- Plug in from computer to Alcotest for data download
S-4 State o f New Jersey Original Indictment of Marc Dennis
dated 1 2 / 1 4 / 1 6 ( SGJ6 9 3 - 1 6 - 2 4 -S /Docket No . 1 6 - 1 2 - 0 0 2 1 3 - S )
S - 4A State of New Jersey Superseding Indictment of Marc Denn i s
dated 6 / 2 7 / 1 7 ( SGJ7 0 2 - 1 7 - 1 7 -S / Docket No . 1 7 - 0 6 - 0 0 1 1 8 - S )
S-9B Exhibit A from sworn statement of Dr . Thomas Bret tell -
Alcotest 7 1 1 0 MKI I I -C User Manual - Technical NJ vl . O
S-9C Exhibit B from sworn statement of Dr . Thomas Bret tell -
Alcotest 7 1 1 0 MKI I I -C User Manual - Operator NJ vl . l
S-9D Exhibit C from sworn statement o f Dr . Thomas Bret tell -
Alcotest 7 1 1 0 MKI I I-C us er Manual - Technical NJ v . 1 . 2
S-9E Exhibit D from sworn statement of Dr . Thoma s Brettell -
Report o f Calibration for Ertco Hart Digital Temperature
Measuring System
S-9F Exhibit E from sworn statement of Dr . Thomas Bret tell -
Calibration Check Procedure for Alcotest 7 1 1 0 MKI I I-C
S-9G Exhibit F from sworn s tatement of Dr . Thomas Brettell -
Calibration Packet from Long Branch Police Department ,
cal ibration date 1 0 / 6 / 1 5 ( C alibration documents ,
Cert i f ic ates o f Accuracy , Certif ications of Analy s i s ,
Denni s ' Coordinator Certi f i c ation card )
S-9H Exhibit G from sworn statement of Dr . Thomas Brettell -
State v . Ca ssidy , 2 0 1 7 N . J . Lexis 4 1 8 ( 2 0 1 7 )
S-9I " Cal ibration Check Procedure for Alcotest 7 1 1 0 MKI I I - C "
( a . k . a . S-32 )
S-lOC Dr . Howard J . Baum, Ph . D . intero f f ice communication dated
December 2 3 , 2 0 0 8
S-12 Ver i f i c ation and Ad justment of 3 4 . 0 0 c Water Tank ( current )
S- 12A Ver i f i c at ion and Ad j u s tment of 3 4 . 0 0 c water Tank ( ol d )
S-12B Simulator Temperature Probe Cert i f ication Proc e s s
S-12C WI 1 9 S imulator Temperature Probe Cal ibration Procedure ,
Revis ion 0 2 - 2 0 0 8
S-12D WI 1 9 S imulator Temperature Probe Cal ibration Procedure ,
Rev i s ion 1 1 - 2 0 1 5
S-13 Cert i f icate o f C a l ibration for Omega Digital Thermometer
( Model No . HH4 1 ; Serial No . 3 0 8 7 4 3 ) Cal Due Date 3 / 2 7 / 2 0 1 5
2
S - 1 3A Certif icate o f C a l ibration for Omega Digital Thermometer
( Model No . HH4 1 ; Serial No . 3 0 8 7 4 3 ) Cal Due Date 2 / 2 7 / 2 0 1 6
S-13B Certifi cate o f C a l ibration f o r Omega Digital Thermometer
( Mode l No . HH4 1 ; Serial No . 3 0 1 3 1 6 )
S-13C Certificate o f Cal ibration f o r Omega Digital Thermometer
( Model No . HH4 1 ; serial No . 3 0 8 4 2 8 )
S-13D Cert i ficate o f Cal ibration for Fluke Mu l t imeter ( Model No .
8 7 - 5 ; Serial No . 9 9 3 8 0 0 4 2 ) , dated 4 / 1 2 / 2 0 1 4 , Certificate
#10475
S-13E Certifi cate of Cal ibration for F luke Mu ltimeter ( Model No .
8 7 - 5 ; Serial No . 9 9 3 8 0 0 4 2 ) , dated 2 / 2 7 / 2 0 1 5 , Certi f icate
#12123
S-15 Breath Alcohol Simulator Solution LOT # 1 3 1 1 2 0 , Date of
Analys i s 1 0 / 2 5 / 2 0 1 3 - 0 . 0 4 0 % s imulator so lution used in
Spring Lake on 7 / 1 0 / 1 5
S-16 Breath Alcohol S imulator Solution LOT # 1 3 1 1 2 1 , Date of
Ana lysi s 1 0 / 3 1 / 2 0 1 3 - 0 . 0 8 0 % s imulator s olution used in
Spring Lake on 7 / 1 0 / 1 5
S-17 Breath Alcohol Simulator Solution LOT # 1 3 1 1 2 3 , Date of
Analy s i s 1 0 / 2 4 / 2 0 1 3 - 0 . 1 0 0 % s imulator solution used in
Cal ibration and Part I -Control Tests in Spring Lake on
7/10/15
S- 1 8 Breath Alcohol S imulator Solut ion LOT # 1 3K1 2 5 , Date of
Ana lysis 1 2 / 0 9 / 2 0 1 3 - 0 . 1 0 0 % s imu lator solution used in the
solution change ( s ee Calibrating Unit New Standard Solution
Report ) in Marlboro on 1 0 / 7 / 1 5
S-19 Breath Alcohol Simulator Solution LOT # 1 4A1 2 6 , Date of
Ana lys i s 0 2 / 1 8 / 2 0 1 4 - 0 . 1 0 0 % s imulator s olution used in the
solut ion change ( s ee C al ibrating Unit New Standard Solution
Report ) in Long Branch on 1 0 / 6 / 1 5
S-2 0 Breath Alcohol S imulator LOT # 1 4 H 1 3 1 , Date of Analysis
0 8 / 1 4 / 2 0 1 4 - 0 . 16 % s imulator solution u sed in Long Branch
on 1 0 / 6 / 1 5 ( Bottle No . 0 8 7 1 ) and in Spring Lake on 7 / 1 0 / 1 5
( Bottle No . 1 2 9 0 )
3
S-2 1 Breath Alcohol S imulator Solution LOT # 1 4 L l 3 5 , Date of
Analy s i s 1 / 2 1 / 2 0 1 5 - 0 . 1 0 0 % s imulator s olution us ed in the
solution change ( s ee Calibrating Unit New Standard Solution
Report ) in Spring Lake on 7 / 1 0 / 1 5
S-22 Breath Alcohol S imu lator Solution LOT # 1 5 H l 4 1 , Date of
Analysis 0 9 / 1 0 / 2 0 1 5 - 0 . 0 4 0 % s imulator solution used in
Long Branch on 1 0 / 6 / 1 5
S-23 Breath Alcohol Simulator Solution LOT # 1 5 H l 4 2 , Date of
Ana l ysis 0 9 / 1 7 / 2 0 1 5 - 0 . 0 8 0 % s imulator solution used in
Long Branch on 1 0 / 6 / 1 5
S-24 Breath Alcohol Simulator Solution LOT # 1 5 H l 4 3 , Date of
Analysis 0 9 / 1 4 / 2 0 1 5 - 0 . 1 0 0 % s imu lator solution used in the
Calibration and Part I -Control Tests in Long Branch on
1 0 / 6 / 1 5 ( Bottle No . 0 3 2 0 ) and in Marlboro on 1 0 / 7 / 1 5
( Bottle No . 0 3 1 8 )
S-32 " Ca l ibration Check Procedure for Alcotest 7 1 1 0 MKI I I - C "
S - 3 3C Cert ificate o f Accuracy for Alcotest 7 1 1 0 Temperature Probe
( Serial No . DDXK P 2 - 3 7 6 , Certi f i cation date 9 - 2 - 1 4 , Next
Certification due 9 - 2 - 1 5 ) - B l ack Key Temperature Probe
a s s i gned to Sgt . Dennis
S-33J Cert ificate of Accuracy for Alcotest 7 1 1 0 Temperature Probe
( Serial No . DDXK P 2 -3 7 6 , Cert i f i c ation date 7 - 2 7 -0 9 , Next
Certi fic ation due 7 -2 7 - 1 0 ) - Black Key Temperature Probe
a s s igned to Sgt . Dennis ; Used for Spring Lake C al ibration
S-34 Certificate o f Accuracy for CU3 4 Serial No . DDXD S 3 - 0 1 8 6 ,
Cert i f ication date 9 - 2 2 - 1 4 , Re-Certification Due Date 9 - 2 2 -
1 5 ( Used by Dennis in Spring Lake )
S - 3 4A Certi ficate o f Accuracy for C U 34 Serial No . DDXD S 3 - 0 1 8 8 ,
Certific ation date 9 - 2 2 - 1 4 , Re-Cert if ication Due Date 9 - 2 2 -
1 5 ( U sed by Dennis in Spring Lake )
S - 3 4B Cert i ficate of Accuracy for CU3 4 Serial No . DDXD S 3 - 0 1 9 1 ,
Cert i f i cation date 9 - 1 9 - 1 4 , Re-Certific ation Due Date 9 - 1 9 -
1 5 ( Used by Dennis in Spring Lake )
S-36 Spring Lake Police Department ' s Certi f i c ates of Accuracy
for its CU3 4 ( S erial No . DDYB S 3 - 0 0 0 2 ) & its Alcotest 7 1 1 0
Temperature Probe ( Serial No . DDXA P2 - 1 1 7 )
4
S - 3 6A Certifi cates o f Accuracy for CU3 4 s us ed by Sgt . Dennis
during c a l ibration of Spring Lake ' s Alcotest ( Serial Nos .
DDXD S 3 - 0 1 8 6 , DDXD S 3 - 0 1 8 8 , DDXD S 3 - 0 1 9 1 )
S-36B Certifi c ate of Accuracy for Bl ack Key Temperature Probe
used by Sgt . Dennis during cal ibration of Spring Lake ' s
Alcotest ( Serial No . DDXK P 2 - 3 7 6 )
S-37 Spring Lake Police Department - Alcotest 7 1 1 0 Calibration
Record dated 0 7 / 1 0 / 2 0 1 5
S - 3 7A Spring Lake Police Department - Alcotest 7 1 1 0 Calibration
Certi fi cate Part I - Control Tests dated 0 7 / 1 0 / 2 0 1 5
S-37B Spring Lake Police Department - Alcotest 7 1 1 0 Calibration
Certi ficate Part I I - Linearity Tests dated 0 7 / 1 0 / 2 0 1 5
S-37C Spring Lake Pol ice Department - Calibrating Unit New
Standard Solut ion Report dated 0 7 / 1 0 / 2 0 1 5
S-42 S I M Card for Video Camera Demonstration of 1 2 / 1 4 / 1 7 in
Court Cal ibration ( Di s c )
S-44 Chun Court Order dated September 1 8 , 2 0 1 0
S-46 Chart Created by Brian Shaf fer i n court
S-51 Article Authored by Dr . Stol z , Ph . D .
S-53 State v . Chun dated February 1 3 , 2 0 0 7 Supreme Court f inding
S-54 Federal Register vol . 8 2 No . 2 1 1 dated November 2 , 2 0 1 7
D-1 C a l ibration Check Procedure for Alcotest 7 1 1 0 MK I I I-C
D-2 Interof f ice Communication from Dr . Howard Baum, dated
December 2 3 , 2 0 0 8
D- 3 Draeger Temperature Probe
D-4 Draeger Simulator and Alcotest 7 1 1 0 Temperature Probe
Certif icate of Accuracy , dated September 1 1 , 2 0 1 7
5
D-5 CU3 4 S imulator
D-6 Letter from Director E l i e Honig to the Honorable Glenn
Grant , J . A . D . , dated September 1 9 , 2 0 1 6
D- 7 Cal ibration Check Procedure for Alcotest 7 1 1 0 MK I I I-C ,
marked by Brian Shaff er
D- 8 Chart ref lecting dis agreement with State ' s witne s s , Brian
Shaffer
D-9 Memorandum of Decis ion , Commonwe alth of Massachusetts v .
Evando Anani as , Chr is t ian and Others , Docket No .
1 2 4 8 C . R . 1 0 7 5 ( February 1 6 , 2 0 1 7 )
D- 1 0 Control Company Traceable Certif icate of Cal ibration for
Digital Thermometer , Certif ication No . 4 0 0 0 - 7 0 1 9 7 7 1
D- l OA Trac eable Certi ficate of Calibration for Digital
Thermomete r , Certificat ion No . 4 0 0 0 - 7 0 1 9 7 7 1 , marked by
Brian Shaffer
D- 1 2 The American Association for Laboratory Accreditation ,
P l 0 2 -A2LA Policy on Me asurement Traceabil ity , dated October
2 2 , 2008
D- 1 3 Draeger S imulator and Alcotest 7 1 1 0 Temperature Probe
Certi f icate of Accuracy , dated September 1 1 , 2 0 1 7 , marked
by Howard Baum, Ph . D .
D- 1 4 Calibration Check Procedure for Alcotest 7 1 1 0 MK I I I -C ,
marked by Howard Baum, Ph . D .
D- 1 5 Interoff ice Communication from Ali Alaouie , Ph . D . I dated
March 1 3 , 2 0 1 3
D- 1 6 Memorandum o f Legal Advice ; Al cote st 7 1 1 0 MK I I I -C ,
Temperature Probe Documentation , from Deputy Attorney
General Stephen H . Monson to Lt . Lou Errao , dated April 3 ,
2006
D-17 Supplemental Memorandum to the Alcotest 7 1 1 0 MK I I I-C
training , from DAG Monson to Alcotest 7 1 1 0 MK I I I - C -
County Prosecutor Contact s , dated August 2 3 , 2 0 0 5
6
D-2 0 Exhibit of Matthew w. Rie s i g , Es quire - State ' s Oppos ition
to the Motion in Aid of Litigant ' s Rights and State ' s
Motion in Aid o f Litigant ' s Rights ( State v . Jane H .
et al . )
D-2 1 Exhibit of Matthew w. Re isig , Es quire - Alabama Breath
Alcohol Testing Program, Operator Manual-Draeger Alcotest
7 1 1 0 MK I I I -C
D- 2 2 Exhibit of Matthew w. Re i s i g , Es quire - Al abama Department
o f Forensic Sciences Adminis trative Code , Chapter 3 7 0 - 1 - 1
Chemical Test for Intoxication
.
D-23 Control C ompany Digital Thermome ter
D-24 Chart - Howard Baum ' s "Wrong " Exhibit
D-25 Traceable Certific ate of Calibration for Digital
Thermometer , Certification No . 4 0 0 0 -7 0 1 9 7 7 1 , marked by Ali
Alaoui e , Ph . D .
D-26 Cal ibration Check Procedure for Alcotest 7 1 1 0 MK I I I -C ,
marked by Ali Alaouie , Ph . D .
D-27 Chart r e f lecting Draeger Recommended Criteria versus New
Jersey Required Criteria by Ali Alaouie , Ph . D .
D-33 Chart re f lecting the New Jersey Supreme Court ' s Question
D- 3 4 Chart ref lecting Temperature Probe resi stance , voltage ,
number , and value by Andreas Stol z , Ph . D .
D-35 Traceable Cert i f icate of Calibration for Digital
Thermometer , Certi fication No . 4 0 0 0 -7 0 1 9 7 7 1 , marked by
Andreas Sto l z , Ph . D .
D-36 International Standard 1 7 0 2 5 , General Requirements for the
Competence of Test ing and Cal ibration Laboratories , Second
Edition ( 2 0 0 5 )
D-37 Traceable Certi fi cate of Calibration for Digital
Thermometer , Certification No . 4 0 0 0 - 7 0 1 9 7 7 1 , marked by
Andreas Sto l z , Ph . D .
D-38 Chart r e f lecting so ftware or hardware f ailure and
temperature probe failure
7
A- 1 NIST Policy - Supplementary Materials for NI ST Policy
Review
A-2 Control Company Traceable Certi ficate of Cal ibration for
Digital Thermome ter
A- 3 Draeger CU34 and temperature probe Certificate of Accuracy
exemplars
8
AP P E N D I X III
APPENDI X I I I
lT = transcript o f July 13, 2017 c a s e management conference
2T = transcript of August 17, 2017 c a s e management conference
3T = transcript o f September 19, 2017 c a s e management conference
4T = transcript of October 12 , 2 0 1 7 c a s e management conference
ST = transcript of November 2 , 2017 c a s e management conference
6T = transcript o f December 14, 2017 demonstration ( Klimik )
7T = transcript of January 3 , 2018 hearing ( Brette l l )
BT = transcript of January 5 , 2018 hearing ( Brette l l )
9T = transcript o f January 8, 2018 hearing ( Shaffer )
l OT = transcript o f January 9 , 2018 hearing ( Sh a f fe r )
l lT = transcript o f January 10, 2018 hearing ( Sh a f f e r )
12T = transcript of January 11, 2018 hearing ( Baum)
13T = transcript of January 16, 2018 hearing ( Baum )
14T = transcript o f January 17 , 2 0 1 8 hearing ( Baum)
15T = transcript of January 18 , 2 0 1 8 hearing ( Alaouie )
1 6T = transcript o f January 22, 2018 hearing ( Alaouie )
17T = transcript o f January 24, 2018 hearing ( Stol z )
18T = transcript of January 30, 2018 hearing on exhibits
1 9T = transcript of March 22 , 2018 oral argument
AP P E N D I X IV
CHRISTOPHER S . PORRINO
ATTORNEY GENERAL OF NEW JERSEY
ATTORNEY FOR PLAINT I F F - MOVANT
BY : ROBERT CZEPI E L , JR .
SUPERVISING DEPUTY ATTORNEY GENERAL
PROSECUTORS SUPERVISION AND TRAINING BUREAU
DIVISION OF CRIM INAL JUSTICE
P.O. BOX 0 8 5
TRENTON , NEW JERSEY 08625
(609) 984-0941 SUPREME COURT OF NEW JERSEY
DOCKET NO . M-244/245/246
SEPTEMBER TERM 2 016
078390
STATE OF NEW JERSEY ,
CRIM INAL ACTION
Plaint i f f - Movant ,
STI PULATIONS OF FACT
v,
EILEEN CASSIDY ,
Def endant -Re spondent .
The State hereby s t ipulates that for purposes of the hearing
before the Spec i a l Mas ter , the f o l lowing f a c t s are true :
1. On December 3, 2015, def endant E i leen Cassidy was arrested
for DWI in Spring Lake Borough .
2. Prior to being charged with DWI , de f e ndant provided a
breath samp l e on Spring Lake Borough ' s A l c o t e s t instrument
with S e r i a l Number ARXB 0076 .
3 . Spring Lake Borough ' s Alcotest 7110 MKI I I C with Serial
Number ARXB 0076 was re c a l ibrated by Sgt . Marc Dennis on
July 1 0 , 2015 .
4 . Cal ibration records indicate that Sgt . Dennis prepared
four CU 3 4 s imulators with s imulator solut ion prior to
recal ibrating A l c o t e s t instrument with S e r i a l Number ARXB
0076 . The c a l ibration records further indi c a t e that one
s imulator contained s imulator solution with an ethanol
concentration of . 04 % ; one simulator contained s imulator
solut ion with an ethanol concentration of . 08 % ; one
s imulator contained s imulator solution with an ethanol
concentration of . 10%; and one s imulator contained
s imulator s o l ution with an e thanol concentrat ion o f . 16 % .
5 . Cal ibration records indicate that Sgt . Dennis al lowed the
four s imulators to heat to the required temperature of
34°C ± . 2°C.
6. It cannot be corroborated whether Sgt . Dennis checked the
temperature of the simulator solut ions with the Control
Company N I ST - t raceable digital thermometer a f ter a l l owing
the s imulators to heat to the required temperature prior
to beginning the recalibration of Spring Lake Borough ' s
Al cote s t i n s t rument with Serial Number ARXB 0076 as is
required by the C a l i bration Protocol .
7 . Cal ibration records indicate that Sgt . Dennis performed
all other required s teps in the Calibration Protocol when
recal ibrating Spring Lake Borough ' s Alcotest with Serial
Number ARXB 0076 .
8 . Cal ibration records demonstrate that Sgt . Dennis s i gned an
Alcotest 7110 Ca l ibration Record for Spring Lake Borough ' s
Alcotest with Serial Number ARXB - 0 0 7 6 c e r t i fying that he
p e r formed all of the s teps in the c a l ibration protocol
con s i stent with the Calibration Procedures e s t ab l i shed by
the Chi e f Forens i c S c i e nt i s t .
9 . Cal ibration records indicate that Sgt . Dennis s i gned an
Alcotest 7110 Cal ibration Cert i f icate for Spring Lake
Borough ' s Alcote s t with S e r i a l Number ARXB 0 0 7 6 certi fying
that he performed all of the steps in the c a l ibration
protocol cons i s tent with the Calibration Procedures
e s t ab l i shed by the Chief Fore n s i c Sc ient i s t .
CHRISTOPHER S . PORRINO
ATTORNEY GENERAL OF NEW JERSEY
ATTORNEY FOR PLAINTI FF - MOVANT
BY : ROBERT CZEPIEL , JR .
SUPERVISING DEPUTY ATTORNEY GENERAL
PROSECUTORS SUPERVISION AND TRAINING BUREAU
DIVIS ION OF CRIMINAL JUSTICE
P.O. BOX 0 8 5
TRENTON , NEW JERSEY 08625
(609) 984 0941 SUPREME COURT OF NEW JERSEY
DOCKET NO . M 244/245/246
S E PTEMBER TERM 2 0 1 6
078390
STATE O F NEW JERSEY ,
P l a i nt i f f -Movan t , CRIMINAL ACTION
v. AFFIDAVIT OF SERVICE
EILEEN CAS S ID Y ,
D e f endant Re spondent .
STATE OF NEW JERSEY
SS
COUNTY O F MERCER
ROBYN B . MITCHELL, of f u l l age , being duly sworn
according to law upon her oath deposes and says :
1. I am a Deputy Attorney General in the employ of the
S t a t e of New Jersey , Divi s ion of Criminal Jus t i c e , Prosecutors
Supervi s ion and Training Bureau .
2. On Augus t 21, 2017 , I did m a i l v i a E le c tronic Mai l and
Regular U . S . Ma i l , S t ipulation of Fac t s , to :
Hon . Joseph F . Lisa, P.J.A.D. ( ret ired and t / a on recal l )
Sentry Building
216 Haddon Avenue
Westmont , New Jersey 0 8 1 0 8 2 8 1 5
Elyse S. Schinde l , Esq .
Hobbi e Corrigan & Bertu c i o , PC
125 Wyckoff Road
Eatontown, New Jersey 0 7 7 2 4
Sharon A . Bal samo , Esq .
As s i s tant Executive D i r e c tor and General Couns e l
New Jersey S t a t e Bar Associat ion
New Jersey Law Center
One Constitution S quare
New Brunswi c k , New Jersey 0 8 9 0 1 1 5 0 0
Samuel Louis Sachs , Esq .
Sachs & Scarde l l a LLC
Princeton Windsor O f f i c e Park
379 Princeton - Hi ghtstown Road
P.O. Box 9 6 8
E a s t Windsor, New Jersey 0 8 5 2 0
sam@samsachs . com
John Men ze l , J.D.
2 911 Route 88, Suite 12
Point Pleasant , New Jersey 0 8 7 4 2
j me n z e l@men z e l law . com
Matthew W . Re i s i g , Esq .
Re i s i g Criminal Defense & DWI Law, LLC
One Broad Street
Freeho l d , New Jersey 0 7 7 2 8
Sworn to and subscribed
before me this 2 1 s t day
of Augus t , 2017 .
An A t torney - At - Law of New Jersey
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