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The Ocean Star: February 23, 2007

Judge’s Findings may affect many statewide DUI cases

By Jessica Stenstroml
A judge’s finding on the Alcotest 7110--- the machine used to determine if a driver has consumed too much alcohol before driving--- has the potential to affect many residents of Point Pleasant Borough defense attorney Bart Baffuto said.

The state Supreme Court agreed to make a decision about the machine after being questioned on its reliability by several defense lawyers. The court appointed retired Judge Michael Patrick King as a special master on the issues, asking him to make a recommendation.

Judge King issued his finding last week, stating that the machine was reliable, but not perfect, saying it should only be used with some adjustments, according to the 200-plus page report.

The Alcotest 7110 is used in 17 counties in the state with only Monmouth, Essex, Hudson and Bergen Counties relying on the Breathalyzer machine that was once used statewide.

Mr. Baffuto said the police department here began using the Alcotest in January last year. He said that, over the period of one year, there are 11 cases being held up in Point Pleasant Borough on “conditional pleas” waiting for the Supreme Courts decision on the reliability of the machine.

There are thousands of cases in the state that have been put on hold, said Mr. Baffuto.

The Alcotest takes a sample of a person’s breath and measures the amount of ethanol alcohol present, converting it to a measure that is correlated to the amount of alcohol present in their bloodstream. A person who registers a .08 on the Alcotest is considered to be a “drunk driver” by state motor vehicle statutes.

“What does breath tell you about blood”, asked Mr. Baffuto. “That’s the question.”

One issue of the correlation of alcohol measured by breath to alcohol in the bloodstream is the temperature of someone’s breath--- a topic addressed in the judge’s report.

The problem is that the ALcotest assumes the normal breath temperature to be 34 degrees Celsius, but testimony from scientist during the fact-finding hearings, argue that the average breath temperature is close to 35 degrees Celsius.

This one degree can cause a large difference in a breath reading, said Mr. Baffuto.

“The higher the temperature, more gas is forced out of a liquid,” he said.

Mr. Baffuto said this cases the machine to assume there is more ethanol alcohol in the breath sample, but in reality there is not more alcohol in the bloodstream.

“The machine is just getting more gas to measure and assuming it must mean a larger blood alcohol content,” he explained.

Mr. Baffuto said the Alcotest machine can be equipped with a breath temperature sensor that would automatically adjust the reading. This system is in place statewide in Alabama.

In his findings, Judge King said that until the sensor is installed on Alcotest machines, all readings should be reduced by 6.58 percent because of the scientists findings that higher breath temperatures give higher readings.

If the state Supreme Court accepts the judge’s recommendation, it would mean that someone with a blood-alcohol breath reading as high as .085 would not be found guilty of driving under the influence.

“People will be going to jail or not going to jail on this,” Mr. Baffuto said.

Now it is a waiting game for defense attorneys in the state. Mr. Baffuto said the seven defense lawyers who participated in the case are currently preparing their briefs addressing Judge King’s findings. He said he would expect the case to be before the state Superior Court this April, although no date has been set yet.

Mr. Baffuto said this whole case could have been avoided if Drager Safety---the German company that created the machine--- had performed an extensive study correlating actual breath samples measuring alcohol content to blood samples measuring alcohol content. He said comparing the two samples from the same individual would have provided important information on the accuracy of the machines conversion of alcohol on breath to the level of alcohol in the blood.