Update

**UPDATE**

We would like to thank all of our viewers, yes all 1300 viewers, of “Trouble In Paradise” for their interest and support. We are committed to making our message accessible to the Spanish speaking community, and a Spanish version of the film will be available soon. We wish to provide the highest level of production quality that we can and ask for your patience while we prepare to launch the Spanish version of “Trouble in Paradise”.

THANK YOU!  

Update

Evan Levow, a New Jersey attorney who is President of the DUI Defense Lawyers Association, has challenged the Alcotest on different grounds. He recently made the following post to our site:

The Massachusetts Supreme Court, addressing the admissibility of results from the Alcotest machine, was deciding whether to rely on State v. Chun and accept the machine based on the Chun litigation.  The DUI Defense Lawyers Association submitted an amicus brief to the court, informing them of the ongoing flawed process in New Jersey, where people are being convicted and put in jail based on results from the Alcotest breath testing machine.

Based on the defense and Amicus arguments, the Massachusetts Supreme Court is not relying on Chun, and will hold its own scientific reliability hearing.

This is a great win, as the concern was that other state’s courts would accept the result in Chun without considering that the NJ court required nine software changes to that machine in order to make it scientifically reliable, yet the state of New Jersey implemented none of those changes. Further, the NJ Supreme Court ignored it’s prior ruling that the machine was only generally scientifically reliable, but when the State told the Court that it never really intended to follow the Court’s Order to fix the machine, the court rubber-stamped the State’s willful violation of the Chun Order.

Fortunately, the Massachusetts Supreme Court will make an independent analysis of the Alcotest.  The machine has employed an algorithm that self-calibrates the machine. Hopefully, after a full hearing on the processes and source code of the Alcotest, the MA Court will determine that the self-correcting machine is not scientifically reliable.

– Evan

Update

On a related note, Dan Matrafajlo, an Elizabeth attorney with a substantial DUI practice, represented a defendant before the Elizabeth Municipal Court who reportedly exhaled for 20.5 seconds.

Alcohol Report

As you may have noticed in the film, Dr. John Penek, our pulmonary expert who’s CV is available for review in our Reference Documents page, states the average adult is capable of exhaling continuously for 10-15 seconds with our interviewer averaging a bit less. As of yet, the State of New Jersey and Draeger Safety Diagnostic, Inc. have not taken any corrective actions.

Update

Please notice friends and relatives in the following states where the Alcotest has been sold: Alabama, New York, Massachusetts, California, Rhode Island, New Mexico, Oregon, and Illinois.

Update

A Spanish language version of the video and materials will soon be available.

*Pronto estara disponible una version en español del video y otros materiales.*

Update

More information and links will be up when they are ready. Please check back frequently for the most relevant updates.

TROUBLE IN PARADISE

A brief introduction to the feature by Alex:

Trouble in paradise, being our new movie explaining our qualms with the Great State of New Jersey and it’s alcohol breath analyzer testing system:

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Have you ever been charged and convicted of a dui in New Jersey? Perhaps you know a friend or relative who was charged and convicted. If so, “Trouble in Paradise” is a must see film. It tells the truth about New Jersey’s Alcotest machine, the device used to test suspected drunk drivers.

In 1998 the State of New Jersey commissioned Draeger to develop Alcotest firmware to meet its needs. That year Draeger delivered the first instruments with firmware version 3.8 to the New Jersey State Police. From December 2000 through December 2001, New Jersey reviewed and evaluated the operation of the Alcotest with firmware version 3.8 in the Pennsauken Township pilot program.

By January 2005 police departments in Middlesex County started to use the Alcotest with firmware version 3.11. By December of that year, thirteen of New Jersey’s twenty­one counties adopted the same practice. In April and June 2006, the Alcotest was introduced into Atlantic, Cape May, Passaic, and Sussex Counties. The roll­out for the remaining four counties – Bergen, Hudson, Monmouth and Essex­ ceased while the New Jersey Supreme Court considered a challenge to the Alcotest firmware version 3.11. After the Chun decision, the roll­out became statewide.

Alex Frankiewicz, a citizen journalist, takes you on a roller coaster ride as he shows the “trouble.” Draeger touted the Alcotest as a fully automated self­ testing unit. Through a careful use of animation, Alex demonstrates the flaw in the Draeger system that would invalidate human test results.

Next, Alex travels to the home of Dr. John Penek, a board certified pulmonologist with a specialty in pulmonary testing. You’ll learn from Dr. Penek that the Draeger system can’t work.

Then Alex will challenge you to try a balloon test to see whether you can match the false readings reported by Draeger’s machine.

You will learn that the Food and Drug Administration (FDA) regulates breath testing devices and that Draeger did not register the Alcotest with the FDA before it marketed and sold the Alcotest to New Jersey. The Alcotest is still unregistered.

You will learn about the Class Action suit filed against Draeger on behalf of the 300,000 citizens who have blown into the Alcotest. Alex will read from the decisions which dismissed the claims.

Lastly, Alex will question Ashton Thomas, a solo practitioner from Elizabeth, New Jersey. Mr. Thomas is seeking a review of these important issues before the U.S. Supreme Court.

ENJOY THE SHOW!

BOBBY JOHNSON v. DRAEGER SAFETY DIAGNOSTIC. INC: A LEGAL CHALLENGE TO THE ALCOTEST 7110 MKIII-C

 BACKGROUND

Since 1954, evidential-breath testing instruments (hereinafter referred to as EBTs), invented by Robert F. Borkenstein, have been in use in the United States. In 1995, Draeger Safety Diagnostics, Inc. (hereinafter referred to as Draeger) introduced to the United States market the Alcotest 7110 MKIII-C (hereinafter referred to as the Alcotest). The Alcotest used a dual sensor measuring system consisting of infrared spectroscopy (IR) and electrochemical technology (EC).

In 1998 the State of New Jersey commissioned Draeger to develop Alcotest firmware to meet its needs. In 1998 Draeger delivered the first instruments with firmware version 3.8 to the New Jersey State Police. From December 2000 through December 2001, New Jersey reviewed and evaluated the operation of the Alcotest with firmware version 3.8 in the Pennsauken Township pilot program.

By January 2005 police departments in Middlesex County started to use the Alcotest with  firmware version 3.11. By December of that year thirteen of New Jersey’s twenty-one counties adopted the same practice. In April and June 2006, the Alcotest was introduced into Atlantic, Cape May, Passaic, and Sussex Counties. The roll-out for the remaining four counties – Bergen, Hudson, Monmouth and Essex- ceased while the New Jersey Supreme Court considered a challenge to the Alcotest firmware version 3:11. 1 After the Chun decision, the roll-out became statewide. See footnote 1.

THE PARTIES

Plaintiff Bobby Johnson (hereinafter referred to as Johnson) is a New Jersey resident. On the 5th day of February, 2010, Johnson was arrested for suspected drunk driving in the Township of Montclair. At the Montclair Police Department, Johnson was read New Jersey Motor Vehicle Commission Standard Statement pursuant to N.J.S.A. 39:4-50.2(e). Said statement instructed him that he was required by law to submit to the taking of samples of his breath to determine the content of alcohol in his blood. Johnson consented and was administered a breath test on the Alcotest. Like all of the Alcotest devices used in the State of New Jersey, the devise used to test Johnson is designed without a provision to assure for the accurate measurement of air volume, flow rate, or blowing time. For Johnson, the Alcotest reported a reading of 0.13% BAC. Because this evidence was admitted on a per se basis, Johnson entered a plea to drunk driving. Johnson’s driving privileges were suspended for 7 months, and he was fined $664.00. See footnote 2.

Plaintiff Edwin Aguaiza (hereinafter referred to a Aguaiza) is a New Jersey resident. On the 11th day of June, 2011, Aguaiza was arrested for suspected drunk driving in the City of Linden. At the Garwood Police Department, Aguaiza was read New Jersey Motor Vehicle Commission Standard Statement pursuant to N.J.S.A. 39:4-50.2(e). Said statement instructed him that he was required by law to submit to the taking of samples of his breath to determine the content of alcohol in his blood. Aguaiza consented and was administered a breath test on the Alcotest. The Garwood Alcotest malfunctioned so the test was aborted. Plaintiff Aguaiza was then transported to the Westfield Police Department where he was administered a breath test on another Alcotest. Like all of the Alcotest devices used in the State of New Jersey, the device used to test Aguaiza is designed without a provision to assure for the accurate measurement of air volume, flow rate, or blowing time. For Aguaiza, the Alcotest reported a reading of 0.11% BAC. Because this evidence was admitted on a per se basis, Aguaiza entered a plea to drunk driving. Aguaiza’s driving privileges were suspended for 7 months, and he was fined.

FEDERAL CLASS ACTION

PRODUCT LIABILITY ACT

On or about April, 2013, Johnson and Aguaiza filed a Class Action lawsuit in the Federal District Court of New Jersey on behalf of the now more than 300,000 suspected drunk drivers who submitted breath sample into the Alcotest. They alleged that Draeger violated the New Jersey Product Liability Act ( PLA) when it designed, marketed, and sold the Alcotest to the State of New Jersey. Specifically, they alleged that the Alcotest, a human breath testing instrument, contains breath sensors that are never tested for accuracy. They alleged that said failure to check the breath sensors on a daily basis would cause the instrument to drift. They alleged that this flaw would invalidate all human test results as the operator could never determine whether the human breath sample tested by the instrument was correctly constituted.

Johnson and Aguaiza alleged that a reasonable alternative design existed to address said design flaws. They alleged that Draeger could have provided a 3-L hand-driven syringe with each unit sold and that the Alcotest’s firmware could have been designed to permit a control test of the flow and pressure sensors. They alleged that hand-driven syringe devices have been available for generations and that hand-driven syringes are low-cost devices that require minimal training to use.

COMMON LAW FRAUD

On various dates between October 5, 2006 and December 12, 2006, Hansueli Ryser (hereinafter referred to as Ryser) gave testimony under oath before the Honorable Michael P. King, who presided over the Chun Fact Finding Hearing. Ryser, Vice President of Draeger Safety Diagnostic, Inc., graduated with a degree in electronic engineering from the Federal College of Technology in Zurich, Switzerland. Ryser continued his education at the University of Colorado where he took courses related to quality control and quality assurance. Ryser received training at the Center for Studies of Law and Action at the University of Indiana where he was certified for supervision and expert testimony.

Ryser testified that he was involved personally with the development of the Alcotest.  Ryser was qualified as an expert in electrical engineering. Ryser testified that he intended to help establish the forensic scientific reliability of the Alcotest.

Johnson and Aguaiza alleged that Ryser made material misrepresentations of a presently existing or past fact with the knowledge of its falsity when he testified under oath:

“Yes. I think if I’m being asked about the instrument, is this instrument scientifically reliable, I defer that question to the instrument’s capability of accurately

reading alcohol in human breath and I’m 100 percent convinced that the instrument performs this task correctly within the specified tolerances and I would like to add here it does this twice, actually, with two independent technologies.

`Yes, I do strongly believe that the instrument is scientifically reliable.”

Johnson and Aguaiza also alleged that Ryser falsely testified when he testified, “So no maintenance needed other than verifying, of course, proper operating – that it’s operating properly at the time when the unit is calibrated. And after that you do not have to maintain it or it’s going to stay alive without doing anything to it.” See footnote 3.

JUDICIAL HISTORY

The matter was decided by United States District Judge Jose L Linares. Dismissing the claims, Judge Linares wrote, “A determination that the Alcotest 7110 contains a design defect and/or that its manufacturer testified falsely under oath in the context of the Chun matter would effectively require a finding that the Chun case was erroneously decided. This is precisely what the Court is prohibited from doing under the Rooker-Feldman doctrine.” See footnote 4

The matter was appealed to the United States Court of Appeals for the Third Circuit. Upholding the lower court decision, Circuit Judge Maryanne Trump Barry wrote, “But even taking as true that Ryser is a ‘highly trained scientist’ who grasps the concept of scientific reliability, plaintiffs allegations are simply not enough to permit an inference that Ryser’s statement that he believed the overall instrument to be scientifically reliable was false because certain sub-parameters could not be routinely tested, or to infer further that he believed his statements to be false.” See footnote 5.

Presently, the parties are seeking a review before the United States Supreme Court.

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References

1. State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L.Ed. 2d 41 (2008).

2. State v. Johnson, 2011 WL 2410039 (N.J. Super. App. Div. Mar 9, 2011). Also see the related matter of State v. Rivas, A-4857-11T2, slip op. (Dec. 10, 2012)

3. Third Amended Class Action, filed August 21, 2013

4. District Court Opinion, (October 28, 2013)

5. Circuit Court Opinion, (December 9, 2014)