DWI machine is unconstitutional

Thursday, January 10, 2008

By: MITCHELL E. IGNATOFF

Hundreds of people have been convicted of drunken driving who, in fact, were not guilty.

ON MONDAY, the New Jersey Supreme Court began hearing arguments about whether the new breath-testing machine used to prosecute drunken drivers is scientifically reliable.

If it decides that it is reliable, the state will waste hundreds of thousands of taxpayer dollars buying theses machines. It is a waste because breath-testing for intoxication at present violates our rights as Americans under the Constitution.

The Constitution says that all persons accused of a crime have the right to confront the witnesses against them. The U.S. Supreme Court says that the state cannot prove its case by using documents instead of live witnesses. You cannot confront -- ask questions of -- pieces of paper. The court has also said that to prove its case, the state must prove each fact beyond a reasonable doubt.

A motorist is legally drunk if his blood alcohol level is at or above .08 percent. The state proves this by having the motorist blow into the machine, called the Alcotest 7110. If the reading is .08 percent or greater, he is guilty. This assumes that the Alcotest is operating properly. If it is not, then the reading is wrong and the motorist may not be found guilty.

The state has always used pieces of paper -- statements by the persons who calibrate the Alcotest -- to prove the apparatus was working properly when the defendant blew into it.

The U.S. Supreme Court says that the state cannot do this anymore; the state has to have the persons who calibrated the Alcotest come to court and testify. Obviously this is crucial. The state has to bring into court at least eight witnesses from the maker of the Alcotest for each drunk driving prosecution.

This becomes impossible, especially since there have been at least 110,000 drunken driving prosecutions by breath since 2004. And these witnesses have to testify in 527 separate municipal courts. The maker of the Alcotest simply does not have enough witnesses.

The reading the machine gives is based on a scientific assumption that the alcohol found in 2,100 cubic centimeters of breath is the same as in 1 cubic centimeter of blood. In fact this ratio varies widely from person to person, and can be as little as 1,700 to 1.

Hundreds of people have been convicted of drunken driving who, in fact, were not guilty.

The Constitution says that in all criminal prosecutions, the accused is entitled to a jury trial. Our Founding Fathers felt very strongly that all criminal trials must be before a jury. Only where the offense is truly petty did they feel that a jury was not necessary.

Drunken driving is not a petty offense. It presents a serious risk of injury or death to the public and the driver. Yet New Jersey does not permit a jury trial.

Rather then ruling on whether the Alcotest is reliable, the court should end these unconstitutional practices and go to blood testing and jury trials.

Otherwise, the state will eventually have to throw away 527 Alcotest machines.