New Jersey Criminal Attorney Blog

There is only one breathalyzer that police administer to New Jersey Drivers suspected of DWI: The Alcotest 7110 MKIII-C. But a report released today by the Seton Hall University School of Law's Center for Policy and Research raises concerns about the test.

The report, entitled "The Untestable Drunk Driving Test" concludes that "there are serious reasons to doubt the accuracy and reliability of the test..." The report also points out that the Alcotest cannot be independently evaluated because of the State's contract with its manufacturer, which prohibits anyone else from purchasing a unit, and because of the manufacturer's proprietary rights to the Alcotest, which prevent anyone from determining how it works. An analytic chemist for Seton Hall attempted to obtain the test, but the manufacturer, Texas-based Draeger Safety Diagnostics, refused to provide one.

The New Jersey State Supreme Court considered the accuracy and reliability of the Alcotest in State v. Chun, which was decided in 2008. In examining the issue, the Court referred to the report of a special master. Although the special master was not permitted to analyze the software used in the Alcotest, the software was submitted to two independent software houses that provided their own reports. The special master determined that the test was reliable, and the Supreme Court approved of the Alcotest.

It remains to be seen whether the Seton Hall Report will have any affect on the use of the Alcotest breathalyzer. As the report indicates, State v. Chun resolved many complex legal questions surrounding the test. However, it also suggests that other jurisdictions may come to different conclusions, and states that "the New Jersey Supreme Court cannot be the last word on the constitutionality of its foreclosure of individual defendants' challenge to the Alcotest in general or to the particular device used to measure their blood alcohol concentration."

New Jersey law permits those arrested or convicted of certain crimes to petition the court for an expungement under certain circumstances. When expunged, the records are isolated and removed from the files of any agencies that have them. Anyone who requests that person's criminal record is told that no such record exists.

But what if a person outside official channels knows about an expunged criminal record and releases it to the public? The New Jersey State Supreme Court is considering just such a case in an effort to determine whether exposing someone else's expunged record is grounds for a defamation lawsuit.

The New Jersey Law Journal reported today that the state's top court will consider the issue. (Subscription required). In G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc., a political operative for a State Senate candidate became the target of flyers produced by a political rival. The flyers referred to the operative's prior drug conviction, which was previously expunged.

Regardless of how the Supreme Court rules on this case, expungement remains an important way to protect a person's record and prevent a past mistake from haunting him or her in the future. Expunged records can be used by the courts only in limited circumstances. For example, a judge may review expunged records when sentencing a defendant in connection with a subsequent conviction. Parole boards may also view expunged records.

Otherwise, state law provides that when a record is expunged, the arrest, conviction, or any other proceedings connected with the crime "shall be deemed not to have occurred, and the petitioner may answer any questions accordingly..." (N.J.S.A. 2C52-27). Consequently, petitioning for an expungement can be helpful to those who fear a background check may turn up damaging information.