E257 October 8, 2007

1. Decision on reliability of new DWI breath testing machine delayed.

2. If You are Hurt in an Accident, We Can Help You. 3. Upcoming Great Charity Races 4. Apartment for Rent Edison, NJ 5. Recent and New Web Pages/Articles by Kenneth Vercammen

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1. Decision on reliability of new DWI breath testing machine delayed.

The Alcotest 7110 MK III is a new DWI breath testing machine manufactured by National Draeger, Inc., which is made with an internal computer communications feature as a standard capability of the instrument.

The Attorney General selected the Alcotest 7110 MK III machine to replace the breathalyzer as the testing machine for drunk drivers. There have been many challenges to this new Alcotest 7110 MK III DWI breath testing machine.

The Supreme Court in State v Chun appointed retired Appellate Division Presiding Judge Michael Patrick King as Special Master to develop a record, conduct hearings and report his findings and conclusions to the Supreme Court regarding the reliability of the Alcotest device. Judge King submitted his initial report to the Supreme Court on February 13, 2007.

Meanwhile, the question continues to be raised as to how the municipal courts are to proceed with Alcotest cases now that Judge King has submitted his personal report to the

Supreme Court. The Administrative Office of the Court reminded all NJ court of the Supreme Court's January 10, 2006 order in the Chun case (emphasis added): "Ordered that any and all requests for a reliability hearing in respect of Alcotest devices are stayed pending the filing of the Court's final decision herein, at which time all pending challenges to an Alcotest device's reliability shall be decided consistent with the Court's disposition;..."

The Administrative Office of the Court stated that the municipal courts should take no action based on submission of the Judge King report to the Court, either in pending cases or in any post-conviction relief applications. Rather, the courts should wait until the Supreme Court renders its final decision and act in accordance with that decision.

The Supreme Court in the Summer of 2007 permitted defense counsel to have independent experts examine the source code of the machine's computers.

The Supreme Court issued an Order on April 30, 2007 that contemplated an analysis of the software denominated as Firmware version 3.11. The Supreme Court ORDERED that each of the two experts designated by defendants and Draeger shall provide a report to the State, defendants, Draeger, and the Special Master within ninety (90) days of the receipt of the source code consistent with the examination and protective and it is further ORDERED that Draeger shall provide the source codes to the respective experts.

The Supreme Court also ordered: 10/12/07 Testimonial hearings to be completed (45 days of receipt of experts' report) 10/26/07 Special Master's report due to Supreme Court (14 days from conclusion of hearings) After over two years of litigation in State v. Chun, approximately 21,000 pages of documents have been disclosed,

a 41 day hearing has been held before Judge King spanning 8,500 pages of transcripts, Judge King issued a 268 page opinion, and the case has been briefed and argued before the Supreme Court.

Co-Lead counsel Evan Levow advised that expert Base One did an extensive evaluation, finding 19,400 potential errors in the code.

In a report released August 28, 2007, Base One determined: As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, "The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity."

The best thing SysTest said about the machine was, "The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results."

SysTest only looked for "mal-ware", not for functioning of the code. Base One, however, did an extensive evaluation,

finding 19,400 potential errors in the code.

The Supreme Court will not decide whether this Alcotest 7110 machine is reliable for several additional months.

Co-Lead counsel Evan Levow, is at http://njlaws.com/alcotest.htm Additional Information on the Summary of the Software, submitted by

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