# State v. Cassidy

> Supreme Court of New Jersey · November 13, 2018 · 235 N.J. 482

URL: https://www.frixlaw.com/law-library/cases/8232312

## Case

- **Full name:** STATE of New Jersey v. Eileen CASSIDY, Defendant-Respondent.
- **Court:** Supreme Court of New Jersey
- **Decided:** November 13, 2018
- **Citations:** 235 N.J. 482; 197 A.3d 86
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Timpone
- **Judges:** Timpone
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8232312

## How later opinions describe it (automated extraction)

- stating that "[s]cientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable within the relevant scientific community"
- explaining that courts "will entertain a case that has become moot when the issue is of significant public importance and is likely to recur"
- holding the "far-reaching implications" of the use of blood alcohol testing machines for over 20,600 breath samples "undeniably" A-1399-24 25 warrants judicial review
- reversing over 20,000 drunk driving convictions based on improperly calibrated breathalizer machines
- noting that the Court has "not altered [its] adherence to the [Frye] general acceptance test for reliability in criminal matters"

## Opinion text

JUSTICE TIMPONE delivered the opinion of the Court.
**486 The case before us concerns New Jersey law enforcement's use of the Alcotest 7110 MKIII-C (Alcotest) to obtain breath samples from drivers suspected of driving under the influence of alcohol. The Alcotest machine analyzes breath samples, producing *89 blood alcohol concentration readings used to determine whether a driver's blood alcohol content is above the legal limit. In 2008, we found Alcotest results admissible in drunk-driving cases to establish a defendant's guilt or innocence for drunk driving. State v. Chun , 194 N.J. 54 , 65, 943 A.2d 114 (2008). We also required that the devices be recalibrated semi-annually to help ensure accurate measurements. Id. at 153 , 943 A.2d 114 .
Confidence in the reliability of instruments of technology used as evidence is of paramount importance. Unfortunately, alleged human failings have cast doubt on the calibration process. Marc W. Dennis, a coordinator in the New Jersey State Police's Alcohol Drug Testing Unit, was tasked with performing the semi-annual calibrations on Alcotest instruments used in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. He is charged with neglecting to take required measurements and having falsely certified that he followed the calibration procedures. Dennis was indicted in 2016 for failing to use a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST) to measure the temperature of simulator solutions used to calibrate Alcotest devices. When Dennis was criminally charged, the Attorney General's Office notified the Administrative Office of the **487 Courts that evidential breath samples from 20,667 people were procured using Alcotest machines calibrated by Dennis.
Defendant Eileen Cassidy, now deceased, pleaded guilty in municipal court to driving under the influence based solely on Alcotest results showing her blood alcohol level had exceeded the legal limit. Upon learning that the results of her test were among those called into question by Dennis's alleged falsifications, she moved to withdraw her guilty plea. The Attorney General moved for direct certification. We granted the motion because the central issue of this case is typical to the large number of defendants affected by Dennis's alleged misconduct. We remanded the case to retired Appellate Division Presiding Judge Joseph F. Lisa as Special Master to determine whether "the failure to test the simulator solutions with the NIST -traceable digital thermometer before calibrating an Alcotest machine [would] undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine." 230 N.J. 232 , 232-33, 166 A.3d 238 (2017).
On May 4, 2018, after an extensive evidentiary hearing, the Special Master issued a 198-page report in which he concluded that failure to use a thermometer that produces NIST-traceable temperature readings in the calibration process undermines the reliability of the Alcotest. We now adopt the Special Master's findings because they are supported by substantial credible evidence in the record, see Chun , 194 N.J. at 93 , 943 A.2d 114 , and we append his report to this opinion.
I.
We briefly highlight the following facts from the record and commend a review of the Special Master's comprehensive report for the finer details. We rely heavily on the Special Master's report.
In 2000, the State began using the Alcotest, a product of Draeger Safety Diagnostics Inc. (Draeger), to conduct breath tests. In 2004, Dr. Thomas A. Brettell developed the current **488 calibration protocol while he was director of the State's Office of Forensic Sciences (OFS), and we deemed the Alcotest sufficiently reliable as calibrated pursuant to Dr. Brettell's protocol. Chun , 194 N.J. at 148 , 943 A.2d 114 . As this Court ordered in Chun , *90 N.J.A.C. 13:51-4.3(a) requires the semi-annual calibration of approved instruments used to test the alcohol content of breath samples. Id. at 153 , 943 A.2d 114 . The regulation, however, does not specify a calibration procedure.
During the calibration process, simulator solutions containing varying concentrations of ethanol are used to calibrate the Alcotest and confirm the accuracy of its blood alcohol content readings. The simulator solutions are poured into calibration units, which are glass containers that house a heating component. The calibration units heat the solutions to about 34 degrees Celsius, the generally accepted temperature for human breath, creating a vapor. The vapor is a proxy for human breath. It is essential that the temperature of the solution be accurate in order for the Alcotest's blood alcohol content readings to be correct. The Alcotest's calibration procedure requires the test coordinator to insert a thermometer that produces NIST-traceable temperature measurements into the simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated the solution to a temperature within 0.2 degrees of 34 degrees Celsius. The NIST is the federal agency responsible for maintaining and promoting consistent units of measurement. When a thermometer's temperature measurements are "traceable" to the standard measurements of the NIST, those measurements are generally accepted as accurate by the scientific community.
There are two other temperature probes used during the calibration procedure. Unlike the NIST-traceable thermometer, both of those probes are manufactured and calibrated by Draeger. The first is the "black key probe," which plugs into the Alcotest device and allows the coordinator to access the calibration function. That probe is used to measure each simulator solution's temperature during a series of control tests. The second is the "agency's **489 probe," which also plugs into the Alcotest and is used to measure the temperature of the simulator solution used in the final test to confirm that the Alcotest was calibrated correctly.
After the Special Master observed State Trooper David Klimik demonstrate an Alcotest calibration for him and heard testimony from five expert witnesses, including Dr. Brettell, the Special Master issued his report. In it the Special Master found the State failed to carry its burden of proving by clear and convincing evidence that the Alcotest was scientifically reliable without a NIST-traceable temperature check. Infra at 622-23, 197 A.3d at 172. The Special Master stated the record "raise[d] substantial doubts about the scientific reliability of breath test results produced by Alcotest devices calibrated without the **490 use of a NIST-traceable thermometer." Infra at 615, 197 A.3d at 168. He rejected the State's contention that the Alcotest itself contains so many redundancies and fail-safes that the use of a NIST-traceable thermometer is merely a supplementary check above and beyond the threshold of sufficient reliability. Infra at 617-18, 197 A.3d at 169. The Special Master determined that, without the NIST-traceable temperature measurement, the risk of undetected miscalibrations was "reasonably plausible" and would lead to "some number of undetected miscalibrations" among the roughly 1200 tests performed annually. Infra at 620-22, 197 A.3d at 171-72.
II.
A.
The State challenges the Special Master's findings, asserting that it met its burden of demonstrating by clear and convincing *91 evidence that the Alcotest is generally accepted as reliable even when a NIST-traceable thermometer is not used in the calibration process. The State points to the testimony of Dr. Brettell that the black key probe and agency's probe are so comprehensive that the reliability of breath test results will not be reduced without the use of a NIST-traceable thermometer. It also highlights the fact that no other state using the Alcotest requires the use of a NIST-traceable thermometer in the calibration process. The State urges us to find that the Special Master held it to a standard far exceeding its evidentiary burden.
The State further asks this Court to reject the Special Master's findings that the black key and agency's probes' temperature readings are not NIST-traceable, arguing that question was not within the scope of the remand.
B.
Defendant asks us to adopt the Special Master's findings and contends the use of a NIST-traceable thermometer is essential because miscalibrations leading to inaccurate breath test readings could otherwise occur. Defendant stresses that the black key and agency's temperature probes do not produce NIST-traceable temperature readings and the use of an independent thermometer is the only way to verify the solutions' temperatures during the calibration process.
C.
Amicus curiae the New Jersey State Bar Association agrees with the Special Master's findings and conclusions. It asserts that the fundamental problem with skipping the NIST-traceable measurement is not that it introduces uncertainty, but that it introduces an unquantifiable amount of uncertainty. In the State Bar Association's view, the Special Master affirmed this Court's assumption in Chun that NIST-traceable temperature measurements are integral to the reliability of the Alcotest.
D.
Participating attorney John Menzel, who represented the respondents in Chun , asks us to adopt the Special Master's findings, but notes the Special Master applied a more general clear and **491 convincing evidence standard rather than the stricter general acceptance standard.
III.
As a preliminary matter, we hold this case is justiciable despite defendant's passing. As this Court explained in State v. Gartland , we "will entertain a case that has become moot when the issue is of significant public importance and is likely to recur." 149 N.J. 456 , 464, 694 A.2d 564 (1997).
We granted the State's application for direct certification from the municipal court because of the far-reaching implications of this case. The pivotal issue is whether the Alcotest is sufficiently reliable absent the use of a NIST-traceable thermometer in its calibration. Defendant's case is emblematic of each case, pending or closed, in which the State used or seeks to use one of the 20,667 breath samples called into question by Dennis's alleged misconduct. The reliability - and, consequently the admissibility, see Romano v. Kimmelman , 96 N.J. 66 , 80, 474 A.2d 1 (1984) - of thousands of breath samples, often used as the sole evidence to support a conviction, is undeniably of significant public importance.
IV.
Generally, the Court will defer to a special master's credibility findings regarding *92 the testimony of expert witnesses, but we owe no deference to a special master's legal conclusions. State v. Henderson , 208 N.J. 208 , 247, 27 A.3d 872 (2011). The Court also accepts the fact findings of a special master to the extent they are supported by "substantial credible evidence in the record." Chun , 194 N.J. at 93 , 943 A.2d 114 .
A.
Scientific test results are admissible in a criminal trial only when the technique is shown to be generally accepted as reliable **492 within the relevant scientific community. Id. at 91 , 943 A.2d 114 . The general acceptance standard is commonly known as the Frye standard. See State v. J.L.G. , 234 N.J. 265 , 280, 190 A.3d 442 (2018).
Although this Court recently adopted the factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 , 593-95, 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), and a methodology-based approach for determining scientific reliability in certain areas of civil law, we have not altered our adherence to the general acceptance test for reliability in criminal matters. In re Accutane Litig. , 234 N.J. 340 , 398-99, 191 A.3d 560 (2018) ; J.L.G., 234 N.J. at 280 , 190 A.3d 442 .
"Proof of general acceptance within a scientific community can be elusive," and "[s]atisfying the test involves more than simply counting how many scientists accept the reliability of the proffered [technique]." State v. Harvey , 151 N.J. 117 , 171, 699 A.2d 596 (1997). General acceptance "entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience." Ibid. (quoting Rubanick v. Witco Chem. Corp. , 125 N.J. 421 , 436, 593 A.2d 733 (1991) ). The proponent of the technique has the burden to "clearly establish" general acceptance, State v. Johnson , 42 N.J. 146 , 171, 199 A.2d 809 (1964), and may do so using "(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions," State v. Cavallo , 88 N.J. 508 , 521, 443 A.2d 1020 (1982) (quoting Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later , 80 Colum. L. Rev. 1197 , 1215 (1980) ).
To be clear, the party proffering the evidence need not show infallibility of the technique nor unanimity of its acceptance in the scientific community. Chun, , 194 N.J. at 91 -92 , 943 A.2d 114 ; Harvey , 151 N.J. at 171 , 699 A.2d 596 ; Johnson , 42 N.J. at 171 , 199 A.2d 809 .
**493 B.
The State had the burden to clearly establish that the Alcotest is sufficiently reliable under the general acceptance standard without the use of a NIST-traceable thermometer in the calibration process. The State contends it carried that burden by showing the use of a NIST-traceable thermometer is unnecessary to ensure the accuracy of the temperature of the simulator solution used to calibrate the Alcotest. According to the State, the temperature of the solutions can be indirectly verified by the two Draeger-manufactured probes, which were themselves checked against NIST-traceable temperature measurements at the time they were calibrated. We disagree.
We begin with a brief review of the Special Master's credibility determinations. The State proffered four witnesses in addition to Trooper Klimik, who demonstrated and answered questions about the calibration process. Of those four witnesses, the Special Master found only the testimony of Dr. Brettell, who "was qualified in this proceeding to render expert *93 opinions in the fields of forensic chemistry, forensic toxicology, scientific measuring, and breath testing," worthy of substantial weight. Infra at 532-34, 197 A.3d at 116-17. As for defendant's expert, Dr. Andreas Stolz, the Special Master found him credible. Infra at 548, 197 A.3d at 126. We defer to and adopt the Special Master's detailed credibility findings. See Henderson , 208 N.J. at 247 , 27 A.3d 872 .
Based on the credible testimony, the Special Master determined that accurate temperature readings of the simulator solutions are "the foundation upon which the entire calibration process is built." Infra at 618, 197 A.3d at 169. The Special Master found NIST traceability "essential" to confidence in the Alcotest's results. Ibid. And, after considering the NIST's standards for traceability, the Special Master found that the black key and agency's probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. Infra at 617-18, 197 A.3d at 168-69.
**494 Dr. Stolz testified that accurate temperature readings of the simulator solutions were critical to the accuracy of the Alcotest. He opined that if the temperature of the simulator solution was off by a single degree, and that error went undetected, the Alcotest's blood alcohol measurements would be off by seven percent. That is, a breath sample with an actual alcohol concentration of .075%, could be read as .082%. Clearly, the accuracy of the temperature of the simulator solutions used to calibrate the Alcotest is critically important to the fidelity of its readings.
The Special Master reproduced the standards for NIST-traceability in his report and detailed Draeger's process for calibrating the black key and agency's temperature probes. Infra at 553-61, 197 A.3d at 129-35. The Special Master's detailed description of that process need not be reprinted here; it is sufficient to note that Draeger's process does not meet the NIST's standards for an unbroken chain of measurement comparisons or for estimating the overall degree of uncertainty of the comparison measurements. The Special Master concluded the black key and agency's temperature probes are not NIST-traceable. The Special Master's findings that the probes are not NIST-traceable did not exceed the scope of the remand and are supported by substantial credible evidence in the record. We see no reason to question the Special Master's determination.
As the Special Master observed, the Draeger temperature probes do not produce NIST-traceable measurements, in part, because the level of uncertainty in those measurements is unknown. Infra at 558-59, 197 A.3d at 133. Both Dr. Brettell and Dr. Stolz acknowledged there is some amount of uncertainty in every temperature measurement. Dr. Stolz explained that it is not such uncertainty itself that is problematic; rather, for a measurement to be scientifically reliable, the amount of uncertainty must be known so the error rate of a given temperature measurement can be determined. Dr. Stolz testified that it is not knowing the level of uncertainty in a given measurement that makes the measurement scientifically unreliable.
**495 Dr. Brettell likewise stressed the importance of NIST-traceable measurements. He acknowledged the scientific reliability of the Alcotest was reduced absent the use of a NIST-traceable thermometer. He agreed with Dr. Stolz that, without the use of a NIST-traceable thermometer, there was an unquantifiable amount of uncertainty in the Alcotest's measurements. Dr. Brettell conceded: "Collectively, [the steps in the calibration process] are requirements that would be necessary for calibrating the instrument ...." The Special *94 Master asked: "To ensure scientific reliability?" Dr. Brettell answered: "Yes."
The Special Master also found it particularly significant that the NIST-traceable thermometer was the only temperature measuring device used in the calibration process that was independent from the Alcotest and not manufactured and calibrated by Draeger. See infra at 577-87, 611-12, 618-19, 197 A.3d at 144-51, 165-66, 169-70. Dr. Stolz explained that if Draeger accidently used the wrong temperature in calibrating the calibration units and the probes, then the temperature variance would go undetected and the Alcotest's readings would be factually inaccurate.
Dr. Brettell testified he included the use of a NIST-traceable thermometer to independently verify the temperature of the solutions in light of the legal significance of the Alcotest. He explained that
if you put everything into Draeger's hands as far as certifying the solutions, the instrument, the calibrating unit and everything else, what if-what if there is a bias or an error in Draeger's laboratory? What impact would that have on the breath test program in New Jersey? And so as far as the risk assessment, I took every step I could to independently test as much as I could of this program independently of Draeger to make sure that if that happened, we have a good chance of stopping it before it proliferated out.
The Special Master found it "extremely important and persuasive" that current protocol treats the failure to achieve an in-range temperature reading using the NIST-traceable thermometer as an event of sufficient magnitude to abort a calibration. Infra at 616, 197 A.3d at 168. The Special Master reasoned that such facts clearly cut against the State's argument that the use of the **496 thermometer is an unnecessary redundancy. Infra at 617-18, 197 A.3d at 169.
Further, the Special Master rejected the State's theory that ten simultaneous failures would need to occur for the certainty of Alcotest results to be compromised, finding instead that the evidence showed that three relatively minor errors could cause undetected miscalibrations. Infra at 580-81, 613-14, 197 A.3d at 146-47, 166-67. Though the Special Master found that it would not be common for the three errors to occur simultaneously, he found that they were "plausible, evidence-based occurrences." Infra at 614, 197 A.3d at 167. The Special Master's main concern was that miscalibrations could go undetected without the use of a NIST-traceable thermometer and the State had "failed to quantify the magnitude of the reduced scientific reliability" of the calibration process when no NIST-traceable device is used. Infra at 614-15, 197 A.3d at 167.
The State disputed the need for the use of a NIST-traceable thermometer, noting that New Jersey is the only jurisdiction using the Alcotest that mandates the thermometer's use in the calibration process. The Special Master rejected that claim because "uncontroverted evidence established that the instrument was highly customized for each jurisdiction." Infra at 601, 197 A.3d at 159. That customization complicates comparative analysis of the states' processes because not enough states use the Alcotest to establish general acceptance and because, even among those states that do use the Alcotest, New Jersey "was possibly the most substantial user of the instrument." Infra at 604, 197 A.3d at 161. The Special Master determined that the State had not shown New Jersey to be an outlier or that other states' practices revealed general acceptance of the reliability of Alcotest results without *95 the use of a NIST-traceable thermometer. Infra at 605, 197 A.3d at 162).
We owe a great debt to the Special Master for his diligence and insightfulness so evident in his extensive and thorough report.
**497 Because his findings are supported by substantial credible evidence in the record, we adopt them.
Applying the general acceptance standard to the Special Master's findings, we hold the State failed to carry its burden and affirm the Special Master's conclusion.
Contrary to the State's contentions that the Special Master held it to a standard of infallibility, we find he did not. The State's argument that the accuracy of the simulator solutions' temperatures can be indirectly verified using the black key and agency's probe cannot overcome the fact that the temperature measurements of those probes are not NIST-traceable. Simply put, temperature measurements that are NIST-traceable are generally accepted as reliable by the scientific community. Part of that reliability lies in the fact that the level of uncertainty of each temperature measurement is known. Because the probes fail to meet the NIST's standards for traceability and the measure of uncertainty in their temperature readings is unknown, the scientific reliability of the probes' temperature measurements are left in doubt.
We do not accept the State's contention that the risk of miscalibration is infinitesimal due to the numerous other fail-safes in the calibration procedure. It is improbable such a showing could satisfy the general acceptance standard because the temperature probes used in the calibration process would still have an unknown level of measurement uncertainty and would not be traceable to the national standards. But assuming such a showing could satisfy the State's burden, the State failed to demonstrate why we should reject the Special Master's findings, specifically his concern that a laboratory error or a confluence of multiple minor errors could lead to undetected miscalibrations. Dr. Stolz and Dr. Brettell testified that they were concerned Draeger, which calibrates the other temperature probes used in the calibration procedure, could accidentally miscalibrate all the probes due to a laboratory mistake. In fact, as Dr. Brettell testified, it was that very fear of a **498 laboratory bias that led him to include the NIST-traceable thermometer in the calibration procedure.
V.
We order the State to notify all affected defendants of our decision that breath test results produced by Alcotest machines not calibrated using a NIST-traceable thermometer are inadmissible, so that they may take appropriate action. We further commend to the State that it require the manual recording of the NIST-traceable readings going forward as a check against negligent performances of this integral human test.
Further, we lift the stay on all pending cases so that deliberations may commence on whether and how those cases should proceed. For those cases already decided, affected defendants may now seek appropriate relief. Because the State waited approximately a year to notify the affected defendants, we relax the five-year time bar, R. 7:10-2(b)(2), in the interests of justice. We ask the Director of the Administrative Office of the Courts to monitor these cases and recommend how best to administer them in the event any special measures are needed. Finally, as to defendant Cassidy, we exercise our original jurisdiction and vacate her conviction.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE's opinion.
*96 APPENDIX
SUPREME COURT OF NEW JERSEY
M-244/245/246 September Term 2016
078390
STATE OF NEW JERSEY,
Plaintiff-Movant,
v.
**499 EILEEN CASSIDY,
Defendant-Respondent.
REPORT OF FINDINGS OF FACTS AND CONCLUSIONS OF REMAND COURT
On remand from the Supreme Court of New Jersey: April 7, 2017
Findings and Conclusions Submitted to Supreme Court: May 4, 2018
Robert H. Czepiel, Jr., Supervising Deputy Attorney General, Robyn B. Mitchell, Deputy Attorney General, Jamie A. Gallagher, Deputy Attorney General, appeared on behalf of plaintiff-movant State of New Jersey (Gurbir S. Grewal, Attorney General, attorney).
Michael R. Hobbie and Elyse S. Schindel appeared on behalf of defendant-respondent Eileen Cassidy (Hobbie, Corrigan & Bertuccio, attorneys).
Sharon A. Balsamo (New Jersey State Bar Association), Arnold N. Fishman (Fishman & Fishman), Miles S. Winder, III (Carl Taylor Law, LLC), Jeffrey E. Gold and Zachary I. Hashmi (Gold & Hashmi, P.C.,) appeared on behalf of amicus curiae New Jersey State Bar Association.
Matthew W. Riesig appeared as a Participating Attorney.
John Menzel appeared as a Participating Attorney.
Samuel Louis Sachs appeared as a Participating Attorney. 1
LISA, P.J.A.D. (retired and temporarily assigned on recall), SPECIAL MASTER
**500 TABLE OF CONTENTS
I. INTRODUCTION...97
II. BACKGROUND...98
A. Legal and factual background of breath testing in New Jersey...98
B. State v. Cassidy background and procedural history...104
C. The calibration check process...108
III. WITNESSES: QUALIFICATIONS AND ASSESSMENT OF CREDIBILITY...115
A. State's witnesses...115
1. Trooper David Klimik...115
2. Dr. Thomas A. Brettell...116
3. Brian Shaffer...117
4. Dr. Howard J. Baum...119
5. Dr. Ali M. Alaouie...123
B. Defense witness...125
1. Dr. Andreas Stolz...125
IV. DISCUSSION...126
A. Burden of proof and positions of the parties...126
B. NIST-traceability...128
C. Importance of NIST-traceable thermometer step...138 *97 D. Undetected miscalibrations...140
E. Discussion of Baum and Alaouie opinions...151
F. Discussion of Brettell opinions...156
G. Other states...159
H. Conforming products list...162
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW...164
A. Findings of fact...164
B. Conclusions of law...167 **501 APPENDIX I - Order Appointing Special Master
APPENDIX II - Exhibit List
APPENDIX III - Transcript List
APPENDIX IV - Stipulations of Fact
I. INTRODUCTION
This report deals with the scientific reliability of breath test readings used for evidential purposes in DWI cases. For many years, such readings have been admissible in evidence only if the State proves, among other things, that the breath testing device which produced the reading was in good working order. That proof is accomplished, in large part, by the production of a certification by a State Police coordinator who performed the most recent calibration of the breath testing device. Such calibrations are required at intervals not to exceed six months, and the coordinator's certification must attest to the fact that all steps in the calibration process were performed according to the authorized procedure.
The breath testing device presently in use in New Jersey is the Alcotest 7110 MKIII-C (the Alcotest, the 7110, or the instrument). One of the mandatory steps in the authorized calibration procedure requires coordinators to measure the temperature of the simulator solutions used in the calibration process with a thermometer that produces temperature measurements traceable to the National Institute of Standards and Technology (NIST). If the NIST-traceable thermometer does not produce temperature readings for all simulator solutions that are within the required range, the coordinator is not permitted to proceed further with the calibration process.
The State alleges that one coordinator failed to perform this step in calibrating three Alcotest 7110 instruments, but he signed certifications falsely attesting that he performed all required steps, including use of the NIST-traceable thermometer. The State determined that over 20,000 evidential breath samples were **502 taken using breath testing devices calibrated by that coordinator over the course of several years.
The State made an application directly to the Supreme Court, elaborating on the information discussed above and asserting that failure to perform the NIST-traceable thermometer step would not undermine or call into question the scientific reliability of breath test results from those devices, notwithstanding that the step is mandatory and legally required as a prerequisite to admission in evidence of breath test results. Because of the multitude of cases potentially affected, all of which would contain a common issue, the State asked the Court to appoint a Special Master to deal with that issue in a single proceeding.
The Court granted the State's request and issued an order on April 7, 2017 appointing me as the Special Master, directing that I conduct an evidentiary hearing and, after hearing the arguments of the parties, make findings of fact and conclusions of law to be submitted in a written report upon the following question:
*98 Does the failure to test the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine?
[Appendix I.]
For the reasons set forth in this report, I answer that question in the affirmative.
II. BACKGROUND
A. Legal and factual background of breath testing in New Jersey.
For over fifty years, the results of evidentiary breath-testing instruments have been used to establish the blood alcohol concentration (BAC) of individuals who have operated motor vehicles in violation of N.J.S.A. 39:4-50. State v. Miller , 64 N.J. Super. 262 , 268, 165 A.2d 829 (App. Div. 1960) (holding that "[t]he Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content **503 of the blood to admit testimony of the reading obtained upon a properly conducted test"). Breath testing "has the advantage" over blood testing "of prompt and easy administration by non-medically trained personnel and with relatively inexpensive equipment." State v. Johnson , 42 N.J. 146 , 170, 199 A.2d 809 (1964) (referencing the drunkometer, the alcometer, the breathalyzer, the drunkotester and the intoximeter and noting that "[a]ll are now generally scientifically recognized as sufficiently reliable").
Proof that the breath-testing instrument used was in good working order has always been a key foundational requirement of admissibility. See, e.g. , Miller , 64 N.J. Super. at 270 , 165 A.2d 829 (setting aside conviction for lack of foundational proof and holding that "[a]s a minimum ... the State should prove (unless such proof is waived) that the operator was qualified, that the machine and its components were in proper condition, and that the test was properly administered"). In Johnson , the Supreme Court cautioned:
It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order , the operator qualified and the test given correctly.
[ Johnson , 42 N.J. at 171 , 199 A.2d 809 (emphasis added).]
In 1984, the Supreme Court rejected an argument that certain breathalyzer models were insufficiently reliable due to potential radio frequency interference (rfi) affecting breath test results. Romano v. Kimmelman , 96 N.J. 66 , 72, 474 A.2d 1 (1984). The Romano Court held that breathalyzers continued to be "scientifically reliable and accurate devices for determining the concentration of blood alcohol" and that "[s]uch scientific reliability shall be the subject of judicial notice in the trial of all cases under N.J.S.A. 39:4-50." Ibid. The Court explained that breathalyzer test results were admissible where the State established that "(1) the equipment was in proper order - that it was periodically inspected in accordance with accepted procedures; (2) the operator was qualified to administer the instrument - that these qualifications as a breathalyzer operator were properly certified; and (3) the test was **504 given correctly - that it was administered in accordance with the official instructions for the use of the instrument." Id. at 81 , 474 A.2d 1 . The State bore the burden of establishing these conditions of admissibility by clear and convincing evidence. Id. at 89-91 , 474 A.2d 1 . *99 The Romano Court noted that, "under the most unusual circumstances, which are highly unlikely to occur," rfi could interfere with breath test results, but it held that various procedures and precautions, including continuing "the current practice of banning hand-held transmitters from any area in close proximity to the breathalyzer instrument," sufficiently safeguarded against rfi. Id. at 72-73, 83-83 , 474 A.2d 1 .
The Court rejected another challenge to the scientific reliability of the breathalyzer in State v. Downie , 117 N.J. 450 , 569 A.2d 242 (1990). There, the defendants asserted that "because people have broadly divergent ratios of breath alcohol relative to blood alcohol, the 2100:1 partition ratio" used by the breathalyzer was inaccurate and rendered its test results scientifically unreliable. Id. at 451-52 , 569 A.2d 242 . The Court rejected this argument and found that "breathalyzer testing is a practical and reasonably accurate way of fulfilling the Legislature's intent to punish drunk drivers." Id. at 452 , 569 A.2d 242 .
For decades, New Jersey used breathalyzer instruments, but those devices would eventually "become technologically outdated, with the result that replacement parts are no longer available and the machines themselves, when they fail, cannot be repaired or replaced with like equipment." State v. Chun , 194 N.J. 54 , 64, 943 A.2d 114 (2008). "Faced with an increasingly difficult situation, the Attorney General's office began to consider alternate devices to use for breath-testing purposes." Ibid.
To replace the breathalyzer, the Attorney General's office selected the Alcotest 7110. Ibid. The Alcotest is a breath-testing instrument, manufactured and marketed by Draeger Safety Diagnostics Inc. (Draeger). The Alcotest was approved as a method of **505 chemical breath testing by the Attorney General pursuant to N.J.A.C. 13:51-3.5 and was first utilized in New Jersey in December 2000 as part of a year-long pilot project in Pennsauken, Camden County. See State v. Foley , 370 N.J. Super. 341 , 345, 851 A.2d 123 (Law Div. 2003).
The scientific reliability of the Alcotest was addressed by the Law Division judge in Foley , following an application by the Camden County Prosecutor for a consolidated joint proof hearing as to numerous cases pending in Pennsauken. Ibid. On December 12, 2003, the Foley court found that "[t]he reportable readings produced by the 7110 within the established tolerances are scientifically accurate and reliable and therefore will be admitted into evidence without the need for expert testimony," with the qualification that "no person who delivers a breath sample of at least .5 liters may be charged with refusal." Id. at 359 , 851 A.2d 123 . The Foley court focused primarily on (1) the "infrared (IR) absorption analysis and electrochemical (EC) cell technology analysis" used by the instrument to measure ethanol in a breath sample, and (2) the "breath testing sequence" used by the police when administering a breath test to an individual subject. The Foley court did not discuss the process involved in placing an instrument into service or performing periodic calibration checks, and it is not clear whether any information on this issue was presented to the court.
Following the Foley decision, the Alcotest instrument was utilized county-wide in Middlesex County and in some municipalities in other counties, and Draeger created revised firmware 2 for use in the instrument.
*100 Chun , 194 N.J. at 66 , 943 A.2d 114 . When twenty defendants charged in various Middlesex County municipalities with driving while intoxicated challenged the admissibility of the Alcotest results in their respective proceedings, (1) the Law Division consolidated the matters and denied the State's motion to **506 recognize Foley as binding authority, (2) the Appellate Division granted the State's motion for leave to appeal, and (3) the Supreme Court certified the pending appeal pursuant to Rule 2:12-1. Id. at 67 , 943 A.2d 114 .
By order dated December 14, 2005, the Supreme Court remanded the Chun matter to a Special Master, retired Appellate Division Presiding Judge Michael Patrick King, to conduct a plenary hearing on the reliability of Alcotest breath instruments. Ibid. Judge King heard testimony over the course of four months and, on February 13, 2007, issued a report concluding that the Alcotest is generally scientifically reliable, but recommending that several changes be incorporated (King SMR). 3 Id. at 69 , 943 A.2d 114 . Following a remand and additional hearings to address firmware-related evidence that was not before the Special Master in the original hearings, Judge King issued a supplemental report on November 8, 2007, making some further recommendations but concluding that the additional evidence presented did not alter his finding that the Alcotest is scientifically reliable (King SMR II). Id. at 70 , 943 A.2d 114 . The firmware being utilized at the time of the Chun decision was "New Jersey Firmware version 3.11." Id. at 82 , 943 A.2d 114 . That same firmware version is being utilized today (10T129). 4
**507 On March 17, 2008, adopting most but not all of Judge King's recommendations, the Supreme Court held, "We have no doubt that the device, with the safeguards we have required, is sufficiently scientifically reliable that its reports may be admitted in evidence." Id. at 148 , 943 A.2d 114 .
*101 The dispute in Chun centered primarily on the defense position that the scientific theory behind all breath test results was flawed, so the Alcotest could not accurately determine BAC even if functioning properly (King SMR at 204-05;213-22). In addition, the defendants raised concerns that the source code underlying the Alcotest firmware was unnecessarily complex, contained numerous errors, and had not been developed in accordance with any recognized standards (King SMR II at 36-52).
Evidence regarding the process central to the current dispute, namely the semi-annual calibration check process, was presented to Judge King during the Chun hearings, but it was not litigated in detail and the defendants did not dispute the sufficiency of that process as described by State witnesses. 5 Dr. Thomas A. Brettell, **508 Director of the Office of Forensic Sciences for the New Jersey State Police (OFS) from 2001 to March 2007, testified in the Chun hearings that he was involved in selecting the Alcotest device over other devices, and he "set up the policies and procedures on the instrument" ( Chun 34T14-34T16;36T69;36T76;41T60;52T42). 6 He testified that his "recommendations for the calibration testing and checking linearity, that's all part of the quality control program" ( Chun 44T81).
No written calibration check procedure was made part of the record in Chun , although Brettell testified generally about the procedure and Kevin M. Flanagan, a Sergeant with the New Jersey State Police (NJSP) who trained and supervised the coordinators at the time of the Chun hearings, testified about the procedures in more detail ( Chun 36T72-36T73;52T6-52T11;54T20-54T29;55T64-55T68;57T5-57T6; King SMR at 45).
Both Brettell and Flanagan testified generally regarding the use of the Ertco-Hart digital thermometer in the calibration check process. Brettell noted that the Ertco-Hart thermometer is a "NIST traceable thermometer" used only by coordinators ( Chun 36T72-36T73). Flanagan testified that the Ertco-Hart thermometer is an "[e]xternal device that is used" by the coordinators "just corroborating temperature of the simulator prior to it being used on the Alcotest" ( Chun 57T5). He testified that the thermometer is "NIST traceable" and the "[calibration is checked by Draeger" (Chun 57T5). Brettell acknowledged that the annual calibration certificate for the Ertco-Hart thermometer was one of the "fairly fundamental documents that give information as to the accuracy as defined by New Jersey for each of these units" ( Chun 36T73).
Thus, the calibration check process that Brettell developed well prior to the 2006 hearings in Chun became part of the Special Master's recommendation and was adopted by the Supreme Court **509 almost without alteration, except that the calibration check had to be performed once every six months instead of once a year.
Notwithstanding the absence of dispute regarding the sufficiency of the State's calibration check procedures, the Chun Court clearly regarded the process as critical. The Court noted that its determination of scientific reliability of the Alcotest was *102 "grounded, in part, on our expectation that there will be proof that the particular device" used in a subject's breath test "was in good working order." Id. at 134 , 943 A.2d 114 . The lion's share of that proof comes from documents related to the calibration check process.
The Chun Court noted:
Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the IR and EC mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated.
[ Id. at 84 , 943 A.2d 114 .]
The foundational documents that the Chun Court held "need to be entered into evidence" in each case to demonstrate the good working order of the instrument are the "most recent calibration report prior to a defendant's test ... and the credentials of the coordinator who performed the calibration," together with the most recent new standard solution report prior to a defendant's test, and the certificate of analysis of the 0.10 simulator solution used in a defendant's control tests (key foundational documents). Id. at 145 , 943 A.2d 114 . The Court also identified nine other categories of foundational documents that must be produced in discovery because they "are part and parcel of ensuring that the machine is in good working order," although their admission is not routinely required (discovery foundational documents). Id. at 135, 144-45 , 943 A.2d 114 . All but one of the discovery foundational documents are certificates attesting to the accuracy of equipment or solutions used during the calibration check process. Ibid. The **510 other discovery foundational document is the new standard solution report generated at the end of the calibration check process. Ibid. 7 Thus, documents generated by or related to the calibration check process are essential in establishing the good working order of the Alcotest.
A few years after Chun , in State v. Holland , 422 N.J. Super. 185 , 27 A.3d 1212 (App. Div. 2011) ( Holland I ), and State v. Holland , 423 N.J. Super. 309 , 32 A.3d 571 (App. Div. 2011) ( Holland II ), the Appellate Division addressed the State's change from the Ertco-Hart thermometer to a thermometer manufactured by Control Company.
Evidence in this case shows that, in December 2008, the OFS evaluated the requirements for a thermometer to use in the calibration check process. A December 23, 2008 memo from Dr. Howard J. Baum, then-Director of the OFS and a witness in both Holland and this case, stated:
Calibration of the Alcotest 7110 MKIII-C requires accurate temperature determination of the simulator solutions. Currently the ERTCO Hart digital thermometer is used for this purpose. However other digital thermometers will also suffice.
The criteria for acceptability of the digital thermometer are as follows: (1) Traceability to a NIST (National Institute of Standards and Technology) standard; (2) Calibration of the digital thermometer *103 by an accredited laboratory complying with ISO 9001, ISO/IEC 17025, and ANSI/NCSL Z540-1; (3) Use of the digital thermometer between the Calibration Date and the Calibration Due (Expiration) Date; (4) Resolution of at least 0.01°C; (5) Accuracy of at least ±1°C between 0.0 to 100.0°C.
Since a digital thermometer from VWR (Model 61220-601) and a digital thermometer from Control Company (Model 4000) meet or exceed the criteria listed above, they are acceptable for temperature determination.
[S-10C;D-2.]
The OFS selected a NIST-traceable digital thermometer manufactured by Control Company (CC thermometer).
In Holland , two defendants challenged the sufficiency of the State's foundational proofs as to the Alcotest instruments used in **511 their respective breath tests because the State had provided a Control Company "Traceable Certificate of Calibration for Digital Thermometer" rather than the "Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability" that was identified as a foundational document in Chun . Holland I , 422 N.J. Super. at 193 -94 , 27 A.3d 1212 . The Holland I court held that using a non-Ertco-Hart thermometer during the calibration process did not necessarily violate the Chun Court's strictures, and it remanded for a finding as to whether the CC thermometer was comparable to the Ertco-Hart thermometer. Id. at 200 , 27 A.3d 1212 .
On remand, the Law Division judge conducted a three-day hearing and concluded that the CC thermometer was comparable in all material respects to the Ertco-Hart thermometer. Holland II , 423 N.J. Super. at 312 , 32 A.3d 571 . The Appellate Division agreed and held that the Control Company certificates produced in the defendants' cases were "facially valid and satisfie[d] the requirements as a foundational document as required by Chun ." Id. at 319 , 32 A.3d 571 .
In 2013, the Supreme Court addressed certain firmware revisions ordered in Chun that had not yet been implemented. State v. Chun , 215 N.J. 489 , 492, 73 A.3d 1241 (2013) ( Chun II ). As relevant here, the ordered revisions to the firmware would have included, on the documents generated during each calibration check, (1) the "serial number of the Ertco-Hart digital temperature measuring system utilized," and (2) "the temperature probe serial number and value" for both the black key and agency probe. Chun , 194 N.J. at 152 , 943 A.2d 114 . These revisions were never made to the firmware, and the Chun II Court excused the State from complying with these and other firmware revisions that had been contemplated. 8
**512 *104 B. State v. Cassidy background and procedural history.
Marc W. Dennis was a coordinator in the New Jersey State Police's Alcohol Drug Testing Unit (ADTU), and in that capacity he performed semi-annual calibrations on Alcotests over the course of seven years in municipalities in five counties, specifically Middlesex, Monmouth, Ocean, Somerset, and Union (Honig Cert. at ¶ 3). 9
On September 19, 2016, Dennis was charged with violations of N.J.S.A. 2C:28-7(a)(1) (tampering with public records or information)
**513 and N.J.S.A. 2C:21-4(a) (falsifying or tampering with records) (Honig Cert. at ¶ 2;S-4;S-4A). The complaint stated that Dennis did:
KNOWINGLY MAKE A FALSE ENTRY IN A RECORD BELONGING TO, OR RECEIVED OR KEPT BY THE GOVERNMENT FOR INFORMATION OR RECORD, THAT BEING AN ALCOTEST 7110 CALIBRATION RECORD AND CERTIFICATE REQUIRING A SIGNED TRUE STATEMENT THAT CALIBRATION CHECKS WERE PERFORMED CONSISTENT WITH THE CALIBRATION CHECK PROCEDURE FOR ALCOTEST 7110 AS ESTABLISHED BY THE CHIEF FORENSIC SCIENTIST OF THE DIVISION OF STATE POLICE, WHEN HE HAD NOT PERFORMED THE PROCEDURE CONSISTENT WITH THOSE STANDARDS, WITH THE PURPOSE TO DEFRAUD OR INJURE ANYONE, IN VIOLATION OF N.J.S.A. 2C:28-7A(1) (A THIRD DEGREE CRIME).
UTTER A WRITING OR RECORD KNOWING THAT IT CONTAINED A FALSE STATEMENT OR INFORMATION WITH PURPOSE TO DECEIVE OR INJURE ANYONE OR TO CONCEAL A WRONGDOING, THAT BEING AN ALCOTEST 7110 CALIBRATION RECORD AND CERTIFICATE REQUIRING A SIGNED TRUE STATEMENT THAT CALIBRATION CHECKS WERE PERFORMED CONSISTENT WITH THE CALIBRATION CHECK PROCEDURE FOR ALCOTEST 7110 AS ESTABLISHED BY THE CHIEF FORENSIC SCIENTIST OF THE DIVISION OF STATE POLICE, WHEN HE HAD NOT PERFORMED THE PROCEDURE CONSISTENT WITH THOSE STANDARDS, IN VIOLATION OF
*105 N.J.S.A. 2C:21-4A (A FOURTH DEGREE CRIME).
[Exhibit A to Honig Cert.]
Specifically, the State alleges that Dennis "failed to use the NIST-traceable digital thermometer prior to starting the calibration" of Alcotest instruments in Asbury Park City, Long Branch City, and Marlboro Township on October 6 and 7, 2015, but that he nevertheless certified that "[p]ursuant to and consistent with the current 'Calibration Check Procedure for the Alcotest 7100MKIII-C' as established by the Chief Forensic Scientist, I performed a calibration check on the approved instrument identified on this certificate" (Honig Cert. at ¶¶ 5-6;S-4;S-4A).
Dennis was indicted on December 14, 2016, and a superseding indictment was returned on June 27, 2017, charging him with one count of third-degree tampering with public records and one count **514 of fourth-degree falsifying records (S-4;S-4A). 10 Dennis's criminal proceeding is ongoing.
On September 8, 2016, about eleven months after Dennis allegedly failed to use the NIST-traceable digital thermometer when calibrating three specific Alcotest devices, and eleven days before he was formally charged with a crime for that failure, defendant Eileen Cassidy pled guilty in Spring Lake Municipal Court to driving under the influence (Honig Cert. at Exhibit D). Although it was not one of the three Alcotest devices giving rise to the charges against Dennis, the device on which Cassidy had provided an evidential breath sample had also been calibrated by Dennis, and he certified that he had followed the established procedure in performing that calibration (Honig Cert. at Exhibit D; Appendix IV at ¶¶ 3-9).
On September 19, 2016, the same day that Dennis was criminally charged, Elie Honig, the Director of the Division of Criminal Justice of the New Jersey Attorney General's Office, wrote to the Honorable Glenn Grant, Acting Director of the Administrative Office of the Courts (AOC), advising the AOC of the charges against Dennis and the basis for them (AOC letter). Honig questioned the scientific necessity of the NIST-traceable digital thermometer step in the established procedure, but acknowledged that the step was required by the Supreme Court pursuant to Chun . Without referencing any particular case, Honig stated that "[t]he State therefore anticipates that additional legal challenges may be filed regarding the results of any Alcotest instrument that had been calibrated in the past by Dennis" as to some of the "identified 20,667 individuals who provided evidential breath samples on those instruments." Honig stated that "[g]iven potential legal challenges and the underlying scientific nature of any potential challenges" the Supreme Court should "issue a Notice to the Bar **515 and appoint a Special Master to handle any litigation arising from the circumstances set forth in this letter."
One week later, on September 26, 2016, based on the revelation of the criminal charges against Dennis and the AOC letter, Cassidy moved in Spring Lake Municipal Court to withdraw and vacate the guilty plea she had entered earlier that month (Honig Cert. at ¶ 12, Exhibit D).
On October 4, 2016, Judge Grant advised the State that he had reviewed the AOC letter but that a request for a special master should be made directly to the *106 Supreme Court through "an appropriate action; for instance, direct certification."
On October 17, 2016, the State applied to the Supreme Court to (1) take direct certification of Cassidy's municipal court motion to vacate, and (2) appoint a special master. The State referenced Cassidy's specific case, but then stated:
The State anticipates that many additional legal challenges will be filed regarding breath test results from Alcotest instruments that were calibrated by Dennis. As a coordinator for over seven years, Dennis calibrated instruments in Middlesex, Monmouth, Ocean, Somerset, and Union Counties. The State has identified 20,667 individuals who provided evidential breath samples on those instruments. Underscoring any potential legal challenge to the evidential breath samples provided will be the same scientific issue as that presented in the captioned matter: whether the failure to use a NIST-traceable digital thermometer prior to beginning the calibration of the Alcotest instruments undermined the scientific reliability of the instrument.
The State argued that direct certification and appointment of a special master would result in "a clear scientific ruling at the outset" that would "provide immediate guidance to municipal courts concerning the underlying scientific issue" and would "ensure predictable, uniform results throughout the State."
As to Cassidy, the State has stipulated that, on July 10, 2015, Dennis recalibrated the Alcotest 7110 on which she provided a breath sample (Appendix IV at ¶ 3). The State has also stipulated:
It cannot be corroborated whether Sgt. Dennis checked the temperature of the simulator solutions with the Control Company NIST-traceable digital thermometer after allowing the simulators to heat to the required temperature prior to beginning **516 the recalibration of Spring Lake Borough's Alcotest instrument with Serial Number ARXB-0076 as is required by the Calibration Protocol.
[Appendix IV at ¶ 6.]
On October 31, 2016, Cassidy opposed direct certification and the appointment of a special master.
On November 10, 2016, the Court invited the New Jersey State Bar Association (NJSBA), the Association of Criminal Defense Lawyers of New Jersey, and four attorneys who had represented defendants in Chun to submit a response to the State's pending motions, noting that "some of the relief requested by the State may implicate the application of certain aspects of the Court's judgment" in Chun . On January 19, 2017, the Court invited the same entities and attorneys, as well as parties in the Cassidy matter, to "submit written recommendations regarding the scope of the tasks to be performed by a special master, should the Court determine to appoint one."
On April 7, 2017, the Supreme Court largely granted the State's motion and appointed me to sit as Special Master, ordering, in pertinent part:
ORDERED that the matter is remanded to the Special Master who will consider and decide the following question, along with any other questions that the Special Master, in his discretion, deems relevant to the undertaking: "Does the failure to test the simulator solutions with the NIST-traceable digital thermometer before calibrating an Alcotest machine undermine or call into question the scientific reliability of breath tests subsequently performed on the Alcotest machine?"
[Appendix I.]
*107 The Court also set May 8, 2017, as the deadline for all motions for participation in the remand, and it left it to me to "determine the extent of participation of any person or entity in addition to the State and defendant." I received and granted motions to participate in the remand from the NJSBA and three of the attorneys who had been counsel in Chun , specifically Samuel Louis Sachs, Matthew W. Reisig, and John Menzel.
I held five case management conferences between July and November 2017 and addressed various motions and discovery disputes.
**517 On July 27, 2017, the State filed a motion asking me to enter an order "directing the State to provide notice to the 20,667 individuals referenced in the State's motion to appoint a Special Master." I denied the motion as beyond the scope of the authority granted to me in the Court's order appointing me a Special Master, noting, however, that "[t]he denial of this motion in no way impairs the ability of the State, if it chooses, to identify the potentially affected individuals or to furnish them with individual notice." The State subsequently provided notice to potentially affected individuals.
On September 15, 2017, Cassidy filed a "Motion to Declare Defendant as Indigent to Enable Defendant to apply to the Office of the Public Defender for Ancillary Services for the Cost of the Fees for the Defense Experts in This Matter, Pursuant to N.J.S.A. 2A:158A-1." Four days later, Cassidy filed an amended motion seeking expert fees and costs from "the State or the Office of the Public Defender" (motion for expert fees). On October 19, 2017, I issued a decision and order granting defendant's motion to compel the State to pay the costs of defense experts.
On October 17, 2017, the State moved for a stay of proceedings in other courts that raise issues potentially affected by the Supreme Court's ultimate determination in this case ( Dennis cases). On November 2, 2017, I entered an order generally staying Dennis cases. On November 28, 2017, I entered a supplemental order providing that the prosecutor has the affirmative obligation to determine whether a pending proceeding is a Dennis case.
Discovery disputes included obtaining and reviewing in camera both Marc Dennis's personnel file and the discovery in his pending criminal matter, and determining which materials could be disseminated to counsel, subject to a protective order.
At the final case management conference of November 2, 2017, I scheduled the hearing to begin on Monday, December 4, 2017. However, over the Thanksgiving holiday, the State delivered a late discovery submission, containing new and voluminous materials. All defense counsel strenuously objected to the use of these **518 materials at the hearing. They asked that either the material be barred or, alternatively, a thirty-day adjournment be granted to allow them and their experts time to analyze and be prepared to effectively deal with the materials at the hearing. The State did not object to a thirty-day adjournment, and I chose that as the appropriate relief.
I therefore adjourned commencement of testimony by experts until January 3, 2018, and I scheduled an in-court demonstration by a coordinator of an Alcotest calibration check procedure to be held on December 14, 2017. On that date, the State presented Trooper David Klimik, who demonstrated a calibration check procedure and testified in detail regarding the process.
Beginning on January 3, 2018 and ending on January 22, 2018, the State presented four expert witnesses: Brettell; Shaffer; Baum, Director of the OFS from March *108 2008 until June 2017; and Alaouie, a research scientist at the OFS.
The State had also provided a report from Dr. Fiona Couper of Washington State. However, despite numerous efforts by the court and the parties to accommodate Couper's schedule, the State was unable to produce her for live testimony. The State requested that she be permitted to testify by electronic means through a video teleconference. Defendant opposed this procedure on the grounds that it would violate her confrontation rights under the United States and New Jersey Constitutions. I agreed with defendant's position and, by decision and order dated December 28, 2017, held that the State would need to produce Couper live in court if it wanted to rely on her testimony. Couper did not appear.
Defendant produced one expert, Andreas Stolz, from Michigan State University, who testified on January 24, 2018. Defendant had also provided expert reports from two additional experts, but chose not to call them.
I dealt with evidence issues on January 30, 2018, and the parties and participating counsel submitted proposed findings of fact and **519 conclusions of law on March 5, 2018. At my request, counsel appeared for limited oral argument on March 22, 2018.
C. The calibration check process
The calibration check performed on the Alcotest by a coordinator from the ADTU of the NJSP is essential to establishing that an instrument is in good working order. See N.J.A.C. 13:51-4.3(b) (requiring that each Alcotest instrument in use in New Jersey undergo a calibration check performed by a coordinator when placed into service initially or following repair, within 182 days of the last calibration check, or at any time that a coordinator considers it "necessary or otherwise appropriate"). N.J.A.C. 13:51-2.1 and - 2.2 specify the requirements and qualifications for a member of the NJSP to become a coordinator, including "the knowledge to properly perform ... calibration of approved instruments," but the regulations do not describe the specific procedures a coordinator should use for a calibration check.
No prior case in New Jersey has explored details of the periodic calibration process and its relationship to the essential element of proof that the particular instrument in question was in good working order. In Chun , the Court noted the importance of the process and the documents generated by it, but the specifics of the procedure were not in dispute. The Holland court addressed the process in somewhat more detail but, again, the details of the procedure and the importance of each component of it were not in dispute. Here, the importance and necessity of the NIST-traceable thermometer step is directly in issue. Because an understanding of the full calibration check process is essential to understanding the necessity of the NIST-traceable thermometer step, I address that process in detail.
Brettell developed the calibration check procedures for the instrument, and the written "Calibration Check Procedure for Alcotest 7110 MK III-C," admitted into evidence as S-32, was drafted by Brettell (Calibration Check Procedure) (7T15;7T63-7T65). The document was last revised on December 13, 2004, and **520 the procedures it delineates are still applicable to calibration checks performed by ADTU coordinators today. Brettell could not recall how many versions preceded the final version in 2004 or when the first version was drafted, but he thought there had been fewer than five revisions (7T100-7T103). The first *109 version must have been drafted by December 2000, which is when the Alcotest pilot program began in Pennsauken. The requirement for a NIST-traceable thermometer was in every revision (7T104).
After performing a calibration check on a specific instrument, the coordinator signs a certification, attesting, in pertinent part:
Pursuant to, and consistent with, the current "Calibration Check Procedure for Alcotest 7110," as established by the Chief Forensic Scientist of the Division of State Police, I performed a calibration Check on the approved instrument identified on this certificate. The results of my Calibration Check are recorded on this certificate, which consists of two parts on two pages: Part I - Control Tests; and Part II - Linearity Tests. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.
[S-1M.]
The Calibration Check Procedure contains six numbered paragraphs (S-32). The NIST-traceable thermometer requirement at issue in this case is referenced in paragraphs one and two, which provide:
1) For purposes of these procedures, the CU34 Simulator will be referenced as a "Calibrating Unit." All references to "Alcotest 7110" are intended to indicate the Alcotest 7110 MK III or MK III-C. The Agency's Calibrating Unit will be prepared with a new bottle of 0.10% solution from a lot certified by the Chief Forensic Scientist, or qualified designee, which will be run as a control. At the same time, a second Calibrating Unit will be prepared with a new bottle of 0.04% solution certified by the Chief Forensic Scientist, or qualified designee, a third Calibrating Unit will be prepared with a new bottle of 0.08% solution certified by the Chief Forensic Scientist, or qualified designee, and a fourth Calibrating Unit will be prepared with a new bottle of 0.16% solution certified by the Chief Forensic Scientist, or qualified designee. These will be run as a quality assurance and linearity check. Ensure that each Calibrating Unit is appropriately marked with the concentration contained therein and sealed with a plug or temperature probe and tygon loop to seal inlet and outlet. Allow all three Calibrating Units to heat for 1 hour and then check the simulator temperatures with a NIST traceable thermometer. Temperatures must be 34 degrees Celsius plus or minus 0.2 degrees. Connect the keyed "coordinator's **521 probe" to the Alcotest 7110 and use the "PROBE" function to "ADJUST" to the correct "probe value".
2) Attach the 0.10% Calibrating Unit to introduce a vapor sample directly to the cuvette. The "coordinator's keyed" temperature probe should be inserted in the rubber grommet of the Calibrating Unit. Verify that the temperature of the Calibrating Unit is 34.0 degrees Celsius plus or minus 0.2 degrees, by checking with the NIST thermometer. Use the "CALIBRATE" function to perform a calibration of the unit. Follow the Alcotest 7110's prompts to enter data for the Operator, Calibrating Unit, and Solution. Upon completion of data entry, the Alcotest 7110 will obtain a vapor sample from the Calibrating Unit and will adjust its calibration based on this "Known Standard." This process will output the "Alcotest 7110 Calibration report."
*110 [S-32 (emphasis added).]
When questioned about developing the Calibration Check Procedure, Brettell said, "I put the steps in there to lay out the best possible calibration of the Alcotest instrument in my mind" (7T105). On cross-examination, Brettell was pressed on whether each and every step was scientifically necessary. I then interjected with the following:
THE COURT: Can you answer that directly? Do you have a direct answer for that question?
THE WITNESS: He's using the word "necessary" and I don't really want to use that word, because I don't think it's a scientific word.
Q. Reliable, do you like that word? How about reliable?
THE COURT: Were they collectively scientifically necessary, as opposed to parsing one against the other?
THE WITNESS: Collectively, they are requirements that would be necessary for calibrating the instrument, yes.
THE COURT: Scientifically?
THE WITNESS: Scientifically.
THE COURT: To ensure scientific reliability?
THE WITNESS: Yes.
[7T106-1 to 18].
On December 14, 2017, ADTU coordinator Klimik appeared as a witness for the State and gave a demonstration of a calibration check from beginning to end (6T). Coordinators such as Klimik are tasked with calibrating designated Alcotest instruments in municipalities in a particular region. Typically, each coordinator performs two calibration checks per day, four days per week (6T160).
**522 Klimik demonstrated and explained each step of the calibration check process in detail, also answering questions from counsel and from me (6T).
He explained that, as a coordinator, he is assigned certain equipment that he brings with him and uses at each calibration check he performs. This equipment consists of (1) three CU34 simulators, (2) a black key temperature probe, and (3) a CC thermometer 11 (6T18;S-1B;S-1C;S-1E;S-1G;S-1I;S-1J;S-1K). He also brings with him (1) bottles of simulator solution with concentrations of 0.04, 0.08, 0.10, and 0.16, and (2) a power strip to use for his CU34 simulators (6T20;6T31;S-1D;S-1A;S-1F;S-1H;S-1L).
The police station or agency that operates the particular Alcotest to be tested supplies, for the calibration check, (1) the instrument itself, (2) one CU34, and (3) an agency temperature probe. The agency also maintains a supply of bottles of simulator solution with a concentration of 0.10, one of which the coordinator uses at the end of the calibration check process for a solution change.
A CU34, also known as a calibrating unit or a simulator, is a device manufactured by Draeger that accompanies, but is separate from, the Alcotest itself. The CU34 holds about a half liter of liquid, and it resembles a mason jar with a black top that contains a motor, microprocessor, and other components (9T120;S-1B;S-1E;S-1G;S-1I). The CU34 top plugs into a power source and, on the underside extending into the simulator *111 solution, it contains a propeller, heat source, and attached probe to measure and maintain the temperature of the solution within the CU34 (9T120-9T121). The top also has a hole through which the black key probe, agency probe, or NIST thermometer will fit when being **523 used by the coordinator. A CU34 does not have a gauge, screen, or other device that displays the temperature of the solution inside. Each CU34 is returned annually to Draeger for recertification.
As Brettell testified:
The simulator, which is the calibrating unit for the Alcotest instruments, is an independent component. It sits outside the instrument. And all of the readings that the Alcotest takes are based upon that calibrating unit working properly.
It has to heat up the standard solution to 34 degrees, plus or minus .2. And if it doesn't, the instrument will not be in calibration. So it's very, very important for the calibrating unit to operate properly, to be working properly.
[7T89-15 to 24.]
The CU34 is a "wet bath" simulator, meaning that it uses liquid, known as simulator solution, rather than dry gas. Simulator solution is water-based and has a "known concentration of ethanol" (15T192).
New Jersey purchases the simulator solution through Draeger from a non-Draeger vendor that provides the solution in lots of 1400 bottles (15T75;15T194). The vendor sends "the first two bottles, the last two bottles, and four bottles from the middle" of each lot to the OFS for analysis (15T75-15T76). 12 If the solutions pass the test criteria, the OFS issues a certificate and approves the lot for purchase by the State Police or other agencies (15T76;15T192-15T195;15T229-15T230).
The CU34 and simulator solution utilize the principle of "Henry's law," which the Supreme Court has explained as follows:
Henry's law, in physical chemistry, states that when a liquid that contains a volatile substance, such as alcohol, makes contact with air in a closed container and at a known temperature, a certain amount of alcohol will escape into the air space above in the form of vapor. The rate at which the alcohol vaporizes will depend on the concentration of the alcohol in the liquid and on the temperature. The higher the temperature, the more alcohol will escape to the vapor. When there is a fixed temperature and concentration of alcohol, a state of equilibrium will result in which the amounts of alcohol in air and liquid are static.
[ State v. Downie , 117 N.J. 450 , 459, 569 A.2d 242 (1990).]
**524 See also King SMR at 163 ("Henry's law states that in a closed system and at a given temperature, there is a fixed ratio between a volatile substance, such as alcohol, in a liquid and the same volatile substance in a gas.").
The concentration of each simulator solution used by the coordinator during the calibration check, 0.04, 0.08, 0.10, and 0.16, is such that, when the solution is heated to 34°C, plus or minus a tolerance of .2°C, and allowed to reach equilibrium, the air between the top of the liquid and the bottom of the CU34 lid, known as the headspace, will contain ethanol molecules of the stated concentration, within a specified tolerance.
During each calibration check, the coordinator uses two temperature probes that *112 plug into the back of the Alcotest instrument, the black key probe assigned to the coordinator and the agency probe used by the agency for breath tests and solution changes between calibration checks. These probes have "a special kind of resister" that has "physical properties that change depending on temperature" (9T118). When the "key" end of a temperature probe is plugged into the instrument and the metal probe end is immersed in the simulator solution, the instrument "goes into a calculation that resolves and reports degree Celsius temperature" (9T118).
"For the purposes of measuring temperature there's no difference" between the black key probe and the agency probe (9T128). The difference is that the black key probe has a "few additional components which establish access rights for the person with this key to get at more menu functions" (9T128). The only function that can be accessed with an agency probe is "Time" (6T70). Both types of probes are tested and recertified annually by Draeger (6T45-6T46;9T128).
When tested by Draeger at each annual recertification, the specific resistance of each temperature probe is determined at 34°C and, based on that resistance, the probe is assigned a probe value between 92 and 108 (6T43). Sometimes the probe value changes for a specific temperature probe, meaning that a probe could be returned by Draeger after recertification with a different **525 probe value than that same probe had previously (6T44). This change is sometimes referred to as probe value drift.
Shaffer explained that a Draeger temperature probe "can't record temperature," but that:
It's using a-as a sensor for the temperature it's using what they call a-it's a special kind of resister called an NTC, Nancy, Tom, Charlie, which has physical properties that change depending on temperature. And so using that resistance of the probe along with the probe value that's assigned during our certification process, inserting that probe into the instrument itself, together it goes into a calculation that resolves and reports degree Celsius temperature.
[9T117-25 to 9T118-10.]
Stolz explained that probe value is "just a parameter" assigned to a probe by Draeger in its annual certification process "to compensate for the differences of the different temperature probes" (17T114). It is not the actual resistance, nor does it reveal the resistance measured by the probe. The probe value goes into the algorithm and is factored into the temperature calculation of the instrument (17T114-17T115). If the probe value is incorrectly inputted into the instrument, the temperature calculation will be incorrect (6T81;7T83;8T127;10T146;17T115).
The CC thermometer is a separate, hand-held device consisting of a probe to immerse in the simulator solution and a unit that displays a temperature reading (S-1K). The CC thermometer comes in a padded box "to make sure it doesn't get damaged during transport" (6T53). Each CC thermometer is certified for two years (6T61). Because the cost of recertifying a used CC thermometer is about the same as purchasing a new one, the used thermometers are discarded at the end of two years and replaced with new thermometers.
Klimik testified that agencies typically have their Alcotest instruments set up and running, with the agency CU34 attached, twenty-four hours a day (6T151). Thus, when he goes to an agency to perform a calibration check on an instrument in service, as opposed to a new instrument or one returning to service after repair, the *113 first thing he does is detach and empty the solution in the agency CU34. Once that solution is emptied, the coordinator **526 must either conduct a solution change or complete a calibration check of the instrument before returning the instrument to service (6T114;6T156).
Each agency usually has one CU34 in service and one in reserve. Typically, the coordinator will not perform the calibration check with the same agency simulator that was already in use, but will put into service the agency simulator that is "in a sealed box with the corresponding certificates" following its annual recertification and return from Draeger (6T31-6T32). This is not mandatory, but the goal is to use in the calibration check, and to leave in service at the agency, a simulator with a certification date that extends beyond the next required calibration check (6T33).
The coordinator then prepares the agency CU34, using the bottle of 0.10 simulator solution he brought with him. He checks the seal "two or three times" by blowing into a tube and confirming that bubbles are not escaping from the side of the simulator (6T15-6T16). He then plugs the agency CU34 into the power strip, turns it on, and confirms that "the propeller is spinning and there's an orange light indicator on top of the heater which indicates that the unit is being heated" (6T16).
The coordinator then goes through the same steps to prepare the three CU34 simulators he brought with him, using the 0.04, 0.08, and 0.16 solutions (6T16-6T18;6T20-6T24).
The coordinator writes the serial number of the simulator on the corresponding bottle of solution and records the time on the final solution prepared (6T16;6T24). When the CU34 reaches the proper temperature range according to its internal temperature probe, the orange light begins "turning on and off" to indicate that it has reached and is maintaining the correct temperature (6T25). 13 This usually takes about thirty minutes, but the Calibration **527 Check Procedure requires that coordinators allow each CU34 to heat for a full hour (S-32;6T25;8T123).
While the CU34s are heating, the coordinator will typically do various administrative tasks, such as downloading any data on the instrument since the last automatic weekly download, preparing pages for the discovery that will be produced as part of the calibration check, and confirming several settings that are checked "every time before performing a calibration to ensure that they are at their correct settings," including tolerances and linearity configurations (6T36-6T38;6T45;6T68-6T69).
The coordinator then adjusts the probe value setting in the instrument to the probe value of the black key temperature probe (6T69). The probe value function in the instrument would be set to the probe value of the agency probe when the coordinator arrives, so unless the values of both the agency and black key probes happen to be the same, the coordinator must adjust the probe value function to the probe value of the black key temperature probe before beginning the tests, and then must adjust it back to the probe value of the agency probe before performing a solution change at the end of the process (6T78-6T79;6T142). The probe value that the coordinator enters into the instrument does not print out on any of the reports generated by the calibration, nor is it *114 handwritten by the coordinator (6T71-6T72;6T142).
Once the CU34s have been heating for an hour, the coordinator checks all four simulators with the CC thermometer, which is equipped with a digital read-out screen that reports temperature to three decimal places (6T86-6T87;6T115). Each time, the coordinator inserts the probe portion of the thermometer into the solution, waits about thirty seconds for the temperature reading to "stabilize," and then visually confirms that the temperature is within the required range of 33.8°C to 34.2°C (6T87-6T88). Klimik noted that the temperature reading on the CC thermometer will continue to fluctuate within a few thousandths of a degree after it has stabilized (6T88). He testified that he will "wipe the temperature **528 probe to ensure that there's no cross-contamination" before moving the CC thermometer from one CU34 to the next (6T88-6T89).
Once the temperatures of all four CU34s have been checked and determined to be within range, the coordinator is then finished with the NIST thermometer for the rest of the process and can return it to its carrying case (6T116;6T119). The temperature readings from the NIST thermometer are not written down or captured anywhere (6T89).
The coordinator will then attach the agency CU34 with the .10 solution to the rear of the instrument and place the black key probe in the solution (6T118-6T120). The coordinator then types in "CALIBRATE" and responds to prompts asking for various information regarding the coordinator and the solution and CU34 being used (6T120). Klimik noted that he and the other coordinators "always review the data, sometimes multiple times" (6T120).
Klimik explained that, during the CALIBRATE function, "[i]t's telling the Alcotest what a .10 solution is supposed to look like" (6T121;6T125;11T113). The CALIBRATE function is critically important because the standard by which the instrument measures all headspace and breath samples after that point is based on its performance of that function. As Shaffer explained:
[F]undamentally what's happening inside the instrument during a calibrate function is actually an adjustment . That's where we're telling the sensors inside the instrument, hey, you know what? Whatever you believed before, we're going to introduce a certain concentration to your sensors and I want you to adjust yourself internally so that you read exactly the target concentration that we tell you during this calibrate process.
And so because of that, it's actually in a very sensitive mode at that point. It's being told trust whatever we give you in this particular step. That's a fundamental part of the adjustment process. And so, therefore, if this was wrong, we would just be teaching it wrong. And the instrument would not detect a problem because of the solution alone.
[10T51-20 to 10T52-10 (emphasis added).]
The next step is the Control Test, which is performed with the same CU34 and simulator solution that was used in the CALIBRATE function (6T126-6T127). The purpose of this test, which is **529 repeated three times, is to assure that the instrument had adjusted properly and reports the 0.10 concentration within the allowable tolerance. The control test certification prints out and the coordinator can proceed to perform the linearity test.
But first, the coordinator will empty the agency CU34 and put a different bottle of *115 .10 solution in to heat for the solution change at the end of the calibration check process (6T133). The .10 solution used by the coordinator to do the CALIBRATE function and control test must be a different lot number from the .10 solution used for the solution change (6T134). Usually, the coordinator brings a bottle of .10 solution to use for the CALIBRATE function and uses a bottle from the agency stores for the solution change.
The next step is the linearity test, which tests each solution in the coordinator's CU34s twice to ensure that the instrument reads the ethanol as within tolerance over a range of concentrations (6T133). The .04 CU34 is used first, then the .08, then the .16 (6T133;6T137-06T138). The black key probe is used throughout the linearity test (6T133;6T137). Klimik stated that he will "triple-check" the results for accuracy, acknowledging that more than one check for accuracy is important (6T139).
Once the linearity test is complete, the coordinator types in the data for a solution change, after which there is a "60-minute lockout" before that solution change can actually be performed (6T140-6T141). During the data entry for the solution change, the coordinator must adjust the probe value function in the instrument to match the value of the agency probe rather than the black key probe (6T142).
The agency probe is used during the solution change, and during this part of the process, the instrument runs three tests to assure that the instrument measures the new solution within the allowable tolerances, in accordance with the adjustment made during the CALIBRATE function. The results of these tests print on the new standard solution report.
**530 At the end of the calibration check, the coordinator produces "discovery" consisting of (1) "Alcotest 7110 Calibration Record," (2) "Alcotest 7110 Calibration Certificate Part I - Control Tests," (3) "Alcotest 7110 Calibration Certificate Part II - Linearity Tests," (4) "Calibrating Unit New Standard Solution Report," (5) Draeger certificates of accuracy for the four CU34s and two probes used, (6) a certificate of calibration for the CC thermometer, (7) OFS certifications of analysis for the five simulator solutions used, and (8) the coordinator's credentials (S-1M).
III. WITNESSES: QUALIFICATIONS AND ASSESSMENT OF CREDIBILITY
A. State's witnesses
1. Trooper David Klimik
Trooper David Klimik is a NJSP coordinator in the ADTU. As of the time of his testimony, he had been performing this role for nearly three years. He performed a demonstration of the calibration procedure in open court on the first hearing date. He was sworn and answered questions posed to him throughout the demonstration by all counsel and by me. All questions, answers, and colloquy were transcribed (6T), and video recorded. (Exhibit S-42). The demonstration lasted the better part of a full day.
Klimik has received all required training to qualify as a coordinator. See N.J.A.C. 13:51-4.2(a)(1)(ii). Klimik had performed approximately 500 Alcotest calibrations. It was clear from his testimony that Klimik was very well versed in the manner in which the device and all of its component parts operate and with the calibration procedure and the sequence and manner in which all required steps are conducted. He was able to explain what he was doing throughout the procedure and to answer questions about each step. He answered all questions forthrightly and without hesitation. When asked questions that required *116 knowledge of science, computer programming, or the like, he declined to answer, **531 because such questions were beyond the scope of his knowledge.
Klimik was a very credible witness in all respects.
2. Dr. Thomas A. Brettell
Dr. Thomas A. Brettell received an undergraduate degree in chemistry in 1973 from Drew University, followed by a Master's Degree in chemistry in 1975 from Lehigh University. In 1987, he received a Ph.D. degree in analytical chemistry from Villanova University. He subsequently took additional graduate courses in forensic toxicology and general toxicology.
In 1976, Brettell began what would become a thirty-one year career in the OFS. He began as a forensic chemist and was promoted in January 1980 to the position of Supervising Forensic Scientist. In 1990 he became assistant to the Chief Forensic Scientist. Then, from 1998 to 2001, he was the Chief Forensic Scientist, the highest position in the OFS at that time. From 2001 until his retirement in March of 2007, Brettell served as the first Director of the OFS.
He has subsequently worked as an associate professor of chemistry at Cedar Crest College in Pennsylvania. He has taught both undergraduate and graduate courses in chemistry and forensic science. These courses have included forensic administration, which deals with administering and managing a crime laboratory. Since his retirement, Brettell has also provided consulting services to the Inspector General's Office of New York State and to the District Attorney's Office in Bucks County, Pennsylvania, regarding the toxicology unit of the crime laboratory in that office.
Brettell holds a number of professional certifications and memberships including the following: Diplomat of the American Board of Criminalistics, Certified Forensic Laboratory Director, Laboratory Accreditation Board (ASCLAD) and Laboratory Inspector, the American Chemical Society, the American Society of Crime Laboratory Directors, the ASCLAD Laboratory Board of Directors, the American Academy for Forensic Scientists, and the **532 Society of Forensic Toxicologists. He has testified more than ninety times as an expert in the courts of New Jersey and Pennsylvania. He provided extensive testimony in Chun .
During his long career in the OFS, Brettell performed a substantial role in the breath testing program and acquired substantial knowledge and expertise in breath testing and breath testing instruments.
Brettell's role with the Alcotest 7110 began when he was assistant to Chief Forensic Scientist Dr. Charles Tindall. They evaluated breath test instruments for purchase for the State of New Jersey to replace the breathalyzer instrument which was then in use. After evaluating several different products, they recommended the Alcotest 7110. Brettell then took on the responsibility for developing the technical procedures for operating this device and for developing the calibration check procedure for it.
He is the author of the Calibration Check Procedure which is at the heart of this proceeding (S-32). The final revision of that document was effective December 13, 2004, and it remains in effect at this time without alteration. Brettell could not recollect how many previous versions preceded that final revision. He estimated no more than five. The first version must have been in effect by December 2000, when the pilot program for the Alcotest 7110 began in Pennsauken. Brettell testified that every version contained the requirement to test *117 the simulator solutions with a NIST-traceable thermometer before activating the CALIBRATE function during the calibration process.
Brettell was qualified in this proceeding to render expert opinions in the fields of forensic chemistry, forensic toxicology, scientific measuring, and breath testing.
Brettell demonstrated a very high level of knowledge and expertise in the fields for which he was qualified. In particular, he possessed a very high level of knowledge regarding the Alcotest 7110 instrument and its component parts. He performed the testing and validation of the instrument before finalizing the **533 decision to purchase it. He developed all of the protocols to effectuate necessary scientific safeguards to assure scientific reliability in the breath tests it would produce. The safeguards were incorporated into the Calibration Check Procedure or other protocols in the OFS. Brettell's knowledge of these safeguards, the reasons for them and their importance was clearly superior to that of any other witness who testified in this proceeding.
Brettell answered all questions candidly and forthrightly, regardless of who was asking them. He was very sincere and careful in giving his answers. He displayed a very high level of appreciation for the solemn responsibility he had in selecting a breath testing device and developing scientifically reliable protocols to achieve in the best way possible the highest level of scientific reliability in breath test results. This demonstrated his appreciation, spoken as a scientist, of what lawyers and judges would refer to as the constitutional dimension of the need for breath test results that are sufficiently scientifically reliable to be used for evidential purposes and which, standing alone, constitute proof of guilt beyond a reasonable doubt.
Brettell's testimony was very credible. The facts to which he testified and the opinions he rendered are entitled to very substantial weight.
3. Brian Shaffer
Brian Shaffer is an employee of Draeger. He received a Bachelor of Science degree in engineering in 1992 from the University of Pittsburgh. He holds no post-graduate degrees. He worked in several jobs before being employed by Draeger in 2003.
While employed by Draeger, Shaffer received in-house training regarding breath testing instruments manufactured by Draeger. He also attended the Robert Borkenstein School, taking a one-week seminar for alcohol, and another program for drugs. He also took a Windows CE course dealing with operating systems and designing imbedded systems.
**534 Although Shaffer does not have formal education in computer science or computer programming, and he acknowledges not being trained in computer science, he began his career at Draeger as a software engineer, a position which he held for about nine years. In this role, he collected and managed specifications and requirements from customers and formed those into source codes and algorithms that are placed into firmware. Shaffer explained that breath testing instruments have a basic firmware that is developed at the factory, in Draeger's case in Germany. Then, customized codes are written to be imbedded in the firmware for each customer, and they are different depending upon the needs of each customer. Shaffer wrote the source codes that customized the Alcotest 7110 for New Jersey's specifications.
In Chun , Shaffer was called by Judge King to testify as both a fact witness and an expert in source code writing regarding the source code customized for New Jersey *118 (King SMR II at 8;14;62). The subjects on which he testified are unrelated to the present case (King SMR II at 62-79). 14
From 2013 to 2017, Shaffer worked as a "bid and tender manager." In that role, he carried many of the same responsibilities as he had when he was a software engineer, serving as a liaison between the customer and the various internal departments of the company, including the research and development, logistics, service, and legal departments.
Since 2017, Shaffer's title has been "Technical Specialist." He is the sole responsible party in the United States to support the **535 Alcotest 7110. That instrument is currently used in New Jersey and Alabama, as well as in a few counties in California.
Shaffer is a "remote" employee, working primarily from his home in Colorado. He occasionally travels to each of the two Draeger locations in Texas, mostly to the service workshop, on average a few times a year. He also travels around the country to trade shows, where he engages in sales activities on Draeger's behalf. He also travels to customer locations to engage in customer relations and provide service support to existing customers, including New Jersey.
Shaffer described the allocation of his work as "about two-thirds sales, one-third would be project management related to the technical aspects of my role" (10T68). Thus, he acknowledged that "two-thirds of [his] time is spent dedicated to making money for Draeger" (10T69). Essentially, Shaffer is the national sales manager for Draeger's breath testing instruments. Most of his time with Draeger is devoted to promoting sales of Draeger products.
Shaffer was primarily a fact witness in this case. It was clear from his voir dire examination that he did not profess to have expertise in certain relevant areas, and the State made clear that it was not offering him as an expert in those areas. Thus, he was not being offered to give expert testimony in source code writing nor as an expert in the New Jersey calibration check procedure (9T50). Likewise, he was not offered as an expert in traceability (9T79). Although Shaffer stated that he had an understanding of what NIST is and that it provides a nationally recognized standard of measurements, he acknowledged that he had never read the NIST guidelines for traceability (9T77-9T78).
Although the State proffered Shaffer as an expert on the workings of Alcotest 7110, it was limited to "the internal Draeger procedures for testing and certifying the CU34, the black key temperature probe and the agency temperature probes." [9T 88:13-21]. Further, counsel for the State made clear that he was "not offering [Shaffer] as a scientific expert" (9T93). His expertise **536 with regard to the Alcotest 7110 would be limited to his working knowledge from a technical aspect of "the internal Draeger procedures for testing and certifying the CU34, the black key temperature probe, and the agency temperature probes" (9T93). Stated more simply, *119 the State offered Shaffer as an expert with respect to "what does the instrument do" (9T94).
Subject to those limitations, I qualified Shaffer as follows:
THE COURT: All right. Here's - I'm going to allow this witness to continue to testify with regard to his expertise about the device, instrument itself, the 7110, which he was a participant in the development of the firmware and the refinement of it to its current form.
He can testify about the internal Draeger procedures with which he is familiar as a long-time employee of Draeger, and in his role there for testing and certifying the CU34 units, and the black key temperature probes, and agency probes and what the results of the calibration process, in his opinion, would be with or without the NIST-traceable thermometer being used as an early step in the process. He is qualified, in my view, to give testimony in those regards. Everything else will go to weight.
[9T107-7 to 22.]
Shaffer's level of expertise is clearly limited. His education in electrical engineering does not qualify him to testify as an expert in the fields of chemistry or physics, which drive the issue in this case. There is no dispute that Shaffer is not a scientist and he was not proffered as a scientific expert. His knowledge of breath testing programs and instruments is limited to their technical aspects.
Shaffer's testimony was candid, he was knowledgeable regarding Draeger procedures, and he provided answers without undue evasion or equivocation. However, I further find from his background, experience and the testimony he gave and the manner in which he gave it, that Shaffer has a built-in bias which serves to favor the State's position. He is a long-time Draeger employee. Having written the source codes for the New Jersey version of the Alcotest 7110, he is invested with defending the firmware and the device itself, when operated in accordance with Draeger's recommendations, without the need for additional safeguards imposed by an end-user, including New Jersey. Based on his employment, **537 he has an interest in defending and promoting these devices as highly desirable for use by governmental entities, which are the present and prospective customers with whom he deals on Draeger's behalf. It is only natural that he would view any additional safeguards, beyond those recommended by Draeger, as not necessary or even important to assure reliability.
When testifying about various additional safeguards Brettell put into the calibration procedure, including but not limited to the use of the NIST-traceable thermometer, Shaffer repeatedly refused to acknowledge their worth or importance, stating instead that they did no harm but they were not necessary. These assertions were at odds with other credible testimony in the case, including from the State's other experts.
Based upon Shaffer's limited educational background, lack of scientific expertise, and his bias in favor of Draeger and its products, including the New Jersey Alcotest 7110 and its firmware, I find Shaffer's credibility to be limited, and I do not attribute high weight to it.
4. Dr. Howard J. Baum
Dr. Howard J. Baum served as the Director of the OFS from March 17, 2008 to his retirement on June 1, 2017. Prior to that, Baum had never been employed by the State of New Jersey in any capacity. His prior professional experience was in the State of New York.
*120 His educational background is as follows: He received a Bachelor of Science degree in biology with a concentration in biochemistry from Cornell University in 1979. In 1986, he received from Brandeis University a Ph.D. degree in biochemistry with a concentration in molecular biology, which is DNA.
Prior to being employed in New Jersey, Baum served as Assistant Director, and eventually Deputy Director, of the Forensic Biology Department of the Office of the Chief Medical Examiner in New York City. He also served as the DNA Technical Leader in that office. He was responsible for the day-to-day **538 operation of the Forensic Biology Department, which concentrated on DNA testing and some serology. Notably, Baum was responsible for the World Trade Center DNA identification of the missing persons and crime scene reconstruction.
It is clear that Baum's primary area of scientific expertise is in the field of DNA studies and analysis. Indeed, since his retirement in 2017 from his position in New Jersey, he is an owner of Baum Scientific Consulting, LLC, through which he is now handling only DNA cases. He holds six patents, all dealing with DNA. Of his thirty-seven publications, about thirty involve DNA. None involve breath testing. He acknowledged that it is well known in the scientific community that he is a nationwide expert on DNA testing.
Prior to becoming employed in New Jersey in 2008, Baum had no experience whatsoever in breath testing programs or with breath testing devices. After being employed in New Jersey as Director of the OFS, he took some training from the State Police and Draeger to learn the basics of New Jersey's breath testing program and the device used, which, at the time of his hire was the Alcotest 7110 (12T22). He acknowledged that he had never used or touched an Alcotest device in his prior position (12T36). His training encompassed an aggregate time of about three to four weeks over a period of about a year (13T17).
While employed as Director of the OFS, Baum generally devoted about ten to fifteen percent of his time to the breath testing program (12T37). When he first arrived, an individual on the existing staff was the manager of the breath testing program. At some point, Baum hired Alaouie (also a witness in this case), whom he designated as the manager of the program. As such, those individuals were responsible for the day-to-day operations of the breath testing program, for testing and certifying the accuracy of simulator solutions, and for setting up and monitoring the central database, also known as the Alcotest Inquiry System.
**539 Baum is a certified ISO 17025 laboratory assessor (12T20-12T21). He acknowledged that through A2LA he performs ISO 17025 accreditation evaluations, and he acknowledged that ISO 17025 accreditation is the highest level of accreditation and can be characterized as the "gold standard" (12T47). He also acknowledged that NIST is the gold standard for traceability (12T53-12T54). He acknowledged his familiarity with the NIST policy review materials in evidence (A-1) (12T111-12T113).
It is clear from a review of Baum's overall testimony over a period of three days that he never took a particularly active role in the breath testing program, never familiarized himself thoroughly with it, and possesses limited knowledge about it. For example, he did not know that the simulator solutions come into the OFS with a certification of accuracy from the laboratory that produced them. Therefore, he did not know that the testing of sample bottles in the OFS constituted a retesting *121 as an added safeguard to assure scientific reliability. The same was true regarding Alcotest instruments received from Draeger after repair. He said that "[u]sually the Alcotest instruments are not certified" when repaired by Draeger, adding, "They're not certified, per se" (13T54). But when pressed and shown a Draeger certificate of accuracy for an Alcotest 7110, he agreed that "[t]here is paperwork with certification" from Draeger with the instruments returned after repair (13T54-13T55;S-9G).
Another significant example can be found in his testimony regarding CU34 read-out models. The CU34s utilized in New Jersey with the 7110 do not have a screen to read out temperature. Baum described in great detail that he considered obtaining CU34s for use with the 7110s which did contain such a read-out screen. He said he obtained them, and had them tested in the lab. He said he was considering using them as a replacement for the NIST-traceable thermometer step in the protocol. When asked why he didn't do so, he said his time ran out before his retirement, and also that there were funding problems. I directed the State to produce documentation to verify this information because Baum **540 had never referred to it in his reports and it constituted a surprise. The following day, counsel for the State reported that upon checking, it was learned that the simulator devices Baum was referring to did not apply to the 7110 at all. They applied to the consideration the State was then giving to obtaining a new instrument, and one of the models it was considering was Draeger's new generation 9510, which evidently comes with a simulator that contains a read-out.
Much of Baum's testimony was self-contradictory. In some instances, the contradictions were within testimony he gave in this very hearing. On other occasions, he gave testimony in this hearing that conflicted with a statement he gave to criminal investigators in the Dennis case in December 2015. And he also rendered testimony in this case that was contradictory to testimony he gave in the Holland hearing. I will discuss some of those with more particularity in the remainder of this section.
In addition to noting Baum's limited knowledge of the breath testing program and inconsistency in his testimony, I also note shortcomings in his recollection of events. Further, as I observed his demeanor and manner of answering questions, I note that his answers were often vague or qualified, resulting in a lack of clarity and allowing for him to change his answers if challenged. He also became argumentative and evasive on many occasions in an effort to avoid having to answer questions.
For all of these reasons, which I will continue to discuss in further detail, I did not attach to Baum's testimony a high level of credibility, nor do I attribute significant weight to it.
Baum was qualified as an expert in the three fields for which he was offered, namely the Alcotest 7110, the breath testing program, and scientific measurement. He proceeded in his substantive testimony to discuss those areas and render opinions in them. As I have previously described, some of his opinions were at odds with opinions he previously gave in other proceedings, and some were internally inconsistent within his testimony in this proceeding.
**541 It is apparent to me that Baum went out of his way to conform his testimony to fit a significant argument the State originally made in seeking this Special Master proceeding, namely that use of the NIST-traceable thermometer is merely a pre-step *122 15 for administrative convenience to prevent the waste of time by a coordinator if he were to begin the CALIBRATE function and one of the simulator solutions was out of range. However, Baum then acknowledged that the same purpose can be achieved with the black key temperature probe (if that probe could be relied upon for the required accuracy). He explained that a coordinator could plug the black key probe into the Alcotest device, pull up the correct screen, and get a read-out, a procedure which could be performed on each of the four CU34s before activating the CALIBRATE function (12T58;13T23).
At another point in his testimony, Baum said this about the NIST-traceable thermometer:
And the temperature probe from the thermometer is, in a pre-test, is put into the simulator solution to make sure that it's close to the 34 degrees that is necessary. When I say close, between 33.8 and 34.2 degrees Celsius and it's used to take temperature of the simulator solution in this process.
[12T224-9 to 15.]
When asked why he called it a "pre-step," Baum said:
[I]t's in the protocol for the calibration of the instrument, but it's a test to make sure that they are at approximately the proper temperature before plugging it in - with a black key temperature probe and plugging it into the instrument, the Alcotest instrument.
[12T224-22 to 22T225-2.]
This testimony is an example of a witness trying to fit a proverbial round peg into a square hole. Baum attempted to minimize the importance of the NIST-traceable thermometer step by calling it a "pre-test" and stating that it only has to show that the solutions "are at approximately the proper temperature." Yet, those concepts are internally inconsistent because he also identified **542 the range which he characterized as being sufficient if they are "approximately" correct. The range he described is the precise range that is required in the calibration procedure. Further, he twice said that the NIST-traceable thermometer is used to "make sure" the temperatures are within the precise required range. Of course, "make sure" means to be certain that the required range is achieved.
Although characterizing this step as a mere "pre-test," Baum did not dispute that if the NIST-traceable thermometer does not give readings within range for all four CU34s, the coordinator is prohibited from proceeding with the calibration (14T8). Thus, Baum's attempted minimization of the importance of this step is contradicted by his own testimony and that of every other witness in the case.
At another point, Baum was again asked whether the procedure, prepared by Brettell, recommended by Judge King, and approved by the Supreme Court, was required to be followed to ensure scientific reliability. Baum tried to avoid the key part of the question by saying the Court "said the procedure had to be followed." When pressed as to whether the Court required it to "ensure and guarantee the scientific reliability of the Alcotest," he finally said "Correct" (13T105-13T106).
There were significant discrepancies between Baum's answers to investigators in his December 21, 2015 interview and his testimony before me. In that interview, he said that if the NIST-traceable thermometer was not used, if the "internal thermometer," by which he meant the Draeger *123 black key or agency probe, was not operating correctly, but read between 33.8 and 34.2, " the thing would pass even though it shouldn't " (14T173) (emphasis added). He then tried to negate that answer in his testimony in this case in two ways. First, he said it was a poor question so his answer didn't come out right. Second, he said that he only meant one calibration test would pass, not the entire calibration procedure (14T178). **543 Similarly, in his December 21, 2015 statement, he answered the following questions in the following manner:
Q. So it says, HB. I'm going to start with the question. Question. This is from D-18 as well.
That NIST thermometer then comes into play to ensure that the temperature of those solutions are 34 degrees?
A. Correct.
Q. If they weren't 34 degrees, uh, and the coordinator proceeded with the recalibration process, would he be successful, he or she be successful?
A. Yes, he would.
Q. Question: How so?
A. It would generate a linear line. However, when you went to read, uh, an individual was arrested for drunk driving, uh, it wouldn't be an accurate reading of their blood alcohol concentration .
[14T183-2 to 16 (emphasis added).]
Then, continuing with "live" questioning in this hearing:
Q. And you read that - I'm reading this correctly. It wouldn't be an accurate reading of their blood alcohol concentration. That's what you stated, correct?
A. That's what I stated, correct.
Q. Okay. And there's no qualifying language by you there, correct?
A. Correct.
[14T183-17 to 24.]
Yet, Baum then tried to negate the testimony he gave in that statement by saying that skipping the NIST-traceable temperature measurement in the calibration process would not be a problem because if the CU34 temperatures were out of range, it would be picked up by the black key probe or the agency probe or the CU34s themselves (14T187). This clearly contradicts what he said in his previous statement given in the Dennis criminal investigation. This is yet another example of why I cannot rely on Baum's opinions, which are often in conflict with each other.
This witness exhibited a low level of knowledge, recollection, candor and consistency. His "reliable enough" approach to the requirement of NIST traceability to assure scientific reliability is not well supported by his own testimony. Nor is it persuasive in establishing that without the NIST-traceable step the Alcotest device does not drop below the level required to render results that are sufficiently scientifically reliable for their intended purpose, **544 namely for evidential use, in which they establish per se guilt beyond a reasonable doubt.
5. Dr. Ali M. Alaouie
Dr. Ali M. Alaouie received an undergraduate degree in chemistry from the College of Staten Island in New York in 1999. He received a Master's Degree in environmental science from Long Island University in New York. In 2006, he received a Ph.D. degree from North Carolina State University in Raleigh, North Carolina in chemistry. He subsequently participated in two one-year appointments for post-doctoral work. The first was in biochemistry at the University of Edmonton *124 in Canada; the second involved cancer research at New York University at the Polytechnic Institute in Brooklyn. Alaouie also received a professional certificate from New York University in U.S. Law and Methodologies.
Alaouie has been employed in the OFS since January 30, 2012. His official title is Research Scientist, and his functional title is Program Manager of the Breath Testing Unit. As such, his primary functions are to conduct validation studies, scientific measurements, and any kind of data-driven analysis or research.
As Program Manager of the Breath Testing Unit, Alaouie oversees the Alcotest Online Public Database (also known as the Alcotest Inquiry System). This database captures and preserves the data from breath tests administered to subjects and solution changes. Because of a "bug" in the Alcotest firmware, the system does not capture calibration records. The system also does not capture the probe value of the Draeger probes it reports upon. Alaouie limits his role in this regard to checking on a weekly basis to be sure that all police agencies are uploading their data into the system. If there is a technical problem, he makes arrangements to send appropriate technicians to that police department to address it. If more than two or three weeks go by during which a department has not uploaded its data, a reminder is sent. However, neither he nor anyone acting under his supervision reviews the **545 data for purposes of analysis, which might identify and address any trends that might be problematic.
Alaouie took the Robert Borkenstein course on alcohol and highway safety in 2010. In 2011, he took training courses administered by the New York City Police Department regarding the Intoxilyzer breath testing device. He also received training provided by NIST, consisting of a two-day workshop in 2013, which dealt with trends in synthetic drugs. In 2015, Alaouie completed a course which resulted in his certification to inspect accredited laboratories according to ISO 17025 standards. He has either observed or performed about 100 calibrations of the 7110 while employed by the OFS.
Another major part of Alaouie's role is to check simulator solutions for accuracy and certify them before they can be used by the State Police or local police departments in calibrating Alcotest instruments or administering breath tests. The solutions are generated by various suppliers, and they come with a certificate of accuracy issued by those suppliers. However, it is part of the protocol established by Brettell that these solutions must be checked by the OFS before they can be used. The testing procedure complies with ISO 17025 standards, across five data points using five separate concentrations. The measurements are made against NIST-traceable standards, and the measurement results are NIST-traceable. Alaouie oversees and reviews the work done by scientists under his supervision and, upon his satisfaction that all procedures have been performed correctly and all calculations are correct, he signs the certificates of accuracy for the simulator solutions.
Alaouie does not possess any specialized computer knowledge, including the ability to write or understand source codes, programming, algorithms, and the like. He is not a computer scientist or programmer.
Alaouie has performed a significant role in validating the Alcotest 9510, which is expected to be the next breath testing instrument **546 used in New Jersey when it replaces the Alcotest 7110. As part of the validation process of the 9510, Alaouie did not perform any SIM TEMP error statistical testing between the 7110 and the 9510. *125 He has never interrogated the 7110 system regarding SIM TEMP errors for the purpose of conducting a statistical analysis of such errors.
Alaouie acknowledged that in every procedure in which accuracy of measurement of temperature is critical, the measurement must be made with a NIST-traceable instrument. He further acknowledged that the user is obligated to satisfy itself of NIST traceability. He has relied upon the Draeger certificates of accuracy for the black key and agency probes. Those certificates do not contain the substantial documentation required to satisfy NIST standards. Alaouie has never contacted Draeger in an effort to determine whether NIST standards are satisfied and to obtain the required documentation to satisfy himself, on behalf of the State of New Jersey, the user, of NIST traceability.
I qualified Alaouie as an expert in the Alcotest 7110, the testing of simulator solutions, and scientific measurement. I found him to be a very credible witness. He was forthright in answering questions posed by all parties.
The bulk of Alaouie's substantive testimony dealt with the testing of simulator solutions. This was not a hotly contested issue. Alaouie's testimony demonstrated that appropriate scientific procedures were utilized before he signed certificates of accuracy for the simulator solutions. The testing was compliant with all NIST-traceability standards, as evidenced by the certificates he issued. I attribute substantial weight to his testimony in this regard.
As to other issues dealing directly with the question before me, namely whether the failure to use the NIST-traceable thermometer undermines or calls into question the scientific reliability of resulting breath tests, Alaouie's knowledge and experience is limited. For the reasons I will discuss, I did not find persuasive the underlying reasons he gave for his ultimate opinion that **547 failure to use the NIST-traceable thermometer would not undermine or call into question the scientific reliability of breath tests. Thus, in areas other than the testing of the simulator solutions, I did not attach significant weight to Alaouie's opinions.
B. Defense witness
1. Dr. Andreas Stolz
Dr. Andreas Stolz holds a Ph.D. degree in physics, which he obtained from the Technical University in Munich, Germany. Metrology, the study of how to measure and the analysis of measurements, is part of his education in physics. He has been in the United States since 2001. He has been employed at Michigan State University since that time, first as an assistant professor, then an associate professor, and is now the head of o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8232312. Public record. Not legal advice.