alcotestThere has not been nearly as much press or interest in the Alcotest challenge that has been going on in New Jersey District Court as there has been regarding the Supreme Court Chun hearings. On April 16, 2013, suit was filed in District Court in Newark on behalf of all New Jersey defendants convicted of DWI based on Alcotest results, and alleged that the Alcotest provides faulty evidence because it cannot calibrate the blowing time measurements. Allegedly, one of the named plaintiffs, Bobby Johnson, was recorded as blowing into the Alcotest for 9.6 seconds for his first test and 17.3 seconds for his second test. Counsel who filed the suit, which named Draeger Safety Diagnostics, Inc. as defendant, alleges that it is not possible for someone to blow into the instrument for that long.

The plaintiffs filed in federal court, saying that this particular issue was not considered by the New Jersey Supreme Court in State v. Chun. On July 19, 2013, Newark U.S. District Court Judge Jose Linares dismissed the complaint because it was not filed under the state Products Liability Act, which he found was the exclusive remedy for harm caused by a product. However, Judge Linares said he will allow the plaintiffs to file an amended complaint, while expressing doubt that they would be able to prove harm.

Personally, while I don’t want to disparage another attorney’s lawsuit, this seems silly to me. While it may be true that this issue was not considered by the Supreme Court in Chun, and while I have seen some seemingly ridiculously long blowing times on certain Alcotest instruments, it doesn’t seem likely that any judge, even a federal one, is going to invalidate every DWI conviction that has been achieved utilizing the Alcotest. I suppose it is not completely outside the realm of possibility, but this seems to be quite a long shot to me. Updates, if any, will follow.