New Jersey v. Cassidy

Annotate this Case
Justia Opinion Summary

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