WaltThe 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.
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
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.
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.
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
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
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).
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
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.
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
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
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.
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.
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
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.
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.
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
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.
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.
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
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
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
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
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
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
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
Applying the general acceptance standard to the Special Master’s
findings, we hold the State failed to carry its burden and affirm the Special
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
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 procedureer F. Timpone.
Outcome: 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 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.