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.
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.
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.
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)