Iler Law Firm DWI victory discussed in New Jersey Law Journal
Here is an excerpt from the New Jersey Law Journal regarding State v. Holland which was recently argued and won by the Iler Law Firm in Monmouth County Superior Court in Freehold, New Jersey:
Judges Clash Over Proper Device To Be Used for Taking Alcotest's Temperature
Charles Toutant
04-26-2010
Setting the stage for an appellate showdown, judges in two adjacent counties have come to different conclusions about the type of thermometer that can be used to calibrate the Alcotest in order for its readings to be admissible in drunken driving cases.
A Monmouth County judge ruled on April 16 that the only acceptable temperature probe is the one mentioned in the state Supreme Court's seminal ruling in State v. Chun, 194 N.J. 54 (2008), which found the Alcotest scientifically reliable and authorized its use statewide.
The Chun Court required that Alcotest machines be calibrated every six months by state police technicians, which includes checking the device's temperature sensor for accuracy. At the time, the state used the Ertco-Hart sensor, made by Fluke Corp. of American Fork, Utah. Since then, less-expensive thermometers made by Control Co. of Friendswood, Texas, have been substituted.
But a Mercer County judge last Dec. 17 found that the Chun Court, which adopted a special master's findings that allowed for substitute probes, has implicitly authorized their use, which defense lawyers say is commonplace.
Now, an appeals court is being asked to decide whether substitutions are allowed. After Superior Court Judge Richard English held that they are not, the Monmouth County prosecutor announced he would request an interlocutory appeal and a stay in the interim.
The case, in State v. Holland, 09-069, stemmed from a drunken driving charge in Neptune on June 24, 2009. Nicole Holland's attorney, Alexander Iler, sought to suppress her blood-alcohol content readings of .15 percent and .16 percent, which were far in excess of the legal limit of .08 percent. He cited the use of a Control Corp. thermometer, rather than an Ertco-Hart.
Municipal Judge Mark Apostolou denied the motion but English, sitting in the Law Division, granted it and remanded the case for a new hearing without the Alcotest readings.
English said of the substitution, "I don't see how the Attorney General takes that step without ... going back to the Supreme Court if that's what they have to do. Going back to the Master and saying we need to make a change here."
Special Master Michael King said in his report to the justices that "the Ertco-Hart temperature measuring system or other similar device" be used, but the Court's ruling in Chun mentioned no such substitution, English said. "I don't know why the Supreme Court wouldn't have added that language if that's what they wanted to do," he added.
Chun also stated that each defendant charged based on Alcotest readings is entitled copies of a dozen foundation documents, including an Ertco-Hart Digital Temperature Measuring System Report of Calibration, which Holland did not receive, English noted.
But in the Mercer County case, State v. Azria, 29-2009, Superior Court Judge Mitchel Ostrer denied a defense lawyer's motion to suppress Alcotest results for failure to use the Ertco-Hart. He said the "Supreme Court did not expressly reject the Special Master's acceptance of such similar devices. Therefore, this court does not read the Supreme Court's mention of the Ertco-Hart temperature measuring system to require that system and only that system, particulary absent any stated rationale for such a requirement."
Assistant Monmouth County Prosecutor Monica do Outeiro, representing the state, asserted in court papers that the Supreme Court used the Ertco-Hart name "merely as an identifier" and that both the Control Corp. and Ertco-Hart devices are certified by the National Institute for Standards and Technology.
First Assistant Monmouth County Prosecutor Peter Warshaw says does not know whether substitute thermometers have been used in other cases.
Iler, who heads a Red Bank firm, wants to see the Control Corp. temperature sensor undergo a hearing on the standards for admissibility of scientific evidence as set forth in Frye v. United States, 293. F. 1013 (D.C. Cir. 1923).
"There's no test anywhere from any court or any expert that says the Control Company probe is the equivalent of the Ertco-Hart probe," Iler says. "The Chun order has no language which says any other probe can be substituted. It calls for a specific type of probe."
Evan Levow, a Cherry Hill lawyer who represented the named defendant in Chun , says that getting the court to order a Freyhearing will require a showing that the Control Corp. device may be less reliable than its counterpart.
