by KYW's Steve Tawa
While the New Jersey Supreme Court has approved the 'Alcotest' to replace the Breathalyzer as the new breath test machine for drunken driving cases, defense lawyers aren't ready to give up their fight against it.
Since the state supreme court ordered a study of the Alcotest in 2006, some 10,000 convicted drunk drivers could legally continue to drive - because sentencing was postponed. The high court considered whether the results are reliable and should be admissible in court.
When stopped, a person has to blow twice into the device, and attorney Jeff Gold, representing the New Jersey bar association in the case, says justices ordered the readings modified:
"They have to reprogram the device to go back to a tolerance between two readings of plus or minus 5%, which is one half of what the machine is currently programmed."
DWI lawyer Evan Levow argues both the machine and the process are 'unreliable.'
"The machine is going to be spitting out documents saying guilty or not guilty. There's no right of the accused to confront witnesses against him or her."
He continued:
"One of the rulings that the court set forth was that the documents of the machine can convict the accused. That's not proper."
Levow intends to appeal to the U.S. Supreme Court because the 6th Amendment of the Constitution gives a person the right to confront his accuser, but in this case, that accuser is a machine.
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