Breath Test In Proper Working Order

Former DWI Prosecutors & Breath Test Certified

For the breath test results and an individual’s BAC reading to be admissible in Court, the Alcotest must be in proper working order. The prosecutor satisfies his burden of establishing that the breath test was in proper working order by presenting certain documents and certifications required under the law. These documents are often referred to as “foundational documents.” There is also an audit type trail in the machine itself known as digital data, that documents the operation of the machine over a six (6) month period. This information can be downloaded and analyzed to attack the foundational documents relied upon by the prosecutor. Our lawyers are trained in what to look for and know how to present sound arguments to place doubt on whether the breathalyzer is functioning and operating properly. The following is a discussion of some of the more important details concerning proving that the breathalyzer was working properly (or more appropriately for our purposes, was operating inaccurately). An attorney is available for a free consultation if you wish to discuss your case in detail.

Was the Alcotest Working/Are the BAC Results Accurate?

Once the Alcotest records two acceptable samples, the lowest reading is taken and used as an individual’s BAC for purposes of proving intoxication. It is also important to note that the reading that is produced is rounded down to the nearest hundredth, so if you blew in theory a .089, it would be rounded down to .08 and not up to .09. And even assuming that all of the proper procedures were followed to achieve these results, the prosecutor must produce numerous documents that are up-to-date and accurate or the BAC results are inadmissible to prove intoxication. These things are mainly certificates and reports related to the accuracy of the machine, the certification of its operator, and documents related to the reading produced — the foundational documents. In accordance with the New Jersey Supreme Court decision in State v. Chun, the following foundational documents must be produced:

  1. Alcohol Influence Report (AIR) – this is the report that is produced by the Alcotest 7110 that tells the police what the BAC is at the time of the test;
  2. Operator’s Card – this is the document showing that the breath test operator was qualified to operate the machine. An operator’s certification is operative for the year in which it is issued and the following two years;
  3. Alcotest 7110 MKIII-C Certificate of Accuracy – this document shows that the machine itself has been certified for accuracy;
  4. Draeger Alcotest 7110 Calibration Record – Every Alcotest machine, as a result of the State Supreme Court’s decision in State v. Chun, 194 N.J. 54 (2008), must be tested every six months for accuracy;
  5. Alcotest 7110 Calibration Record-Part I Control Tests – This certificate tests the machine’s ability to reach the requisite temperature of 34 degrees Celsius;
  6. Alcotest 7110 Calibration Record-Part II Linearity Tests – This test shoots control solutions through the machine to make sure that it works appropriately;
  7. Alcotest 7110 Calibrating Unit-New Standard Solution Report (last solution change prior to the sample);
  8. Alcotest 7110 Calibrating Unit-New Standard Solution Report (solution change immediately following sample);
  9. Certificate of Accuracy-Alcotest CU-34;
  10. Alcotest 7110 temperature Probe Ertco-Hart Digital Temperature Measuring System Report of Calibration;
  11. Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution;
  12. Certificate of Analysis 0.04 Percent Breath Alcohol Simulator Solution;
  13. Certificate of Analysis 0.08 Percent Breath Alcohol Simulator Solution;
  14. Certificate of Analysis 0.16 Percent Breath Alcohol Simulator Solution;
  15. Certificate of Analysis 0.10 Percent Breath Alcohol Simulator Solution; and
  16. Certificate of Accuracy for CU-34 and Certificate of Accuracy for Temperature Probe

While the list of documents might appear relatively straightforward, determining whether the related certification or calibration is the appropriate one for the breath test BAC readings in question is somewhat complicated. Experienced DWI lawyers, like those at our firm, have the skill necessary to identify when a possible defense opportunity exists because a document is lacking, is the wrong one, or discloses an actual or potential fault with the machine. We would be happy to conduct a thorough review of your case and tell you exactly how one of our attorneys can help. Give us a call anytime 24/7 at 877-450-8301.