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Dwi Temperature Probe Issue

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Dwi Temperature Probe Issue

The Appellate Division has recently heard and resolved a case on the following issue: whether blood alcohol concentration (BAC) results derived from an Alcotest 71110 MKIII-C (Alcotest) device are admissible against defendants in driving while intoxicated (DWI) prosecutions when the device has been calibrated with a Control Company, Inc. temperature probe, or a thermometer, instead of the Ertco-Hart temperature probe as mandated by the decision in State v. Chun which outlined procedures for testing and validating the Alcotest machine. The Appellate Division ruled that the use of another manufacturer’s temperature probe to calibrate the Alcotest machine does not alone compel the exclusion of the test results and thus reverse the decision of the lower municipal court judge in excluding the test results in State v. Holland. The Court went on to qualify its decision by ruling that although the Alcotest machine has been found to be reliable, the State still bears the burden of demonstrating the proper working order of the device through the introduction of certain foundational documents. It shall be up to the defense to present evidence that contradicts the validity of the documents to determine why the machine was not in proper working order. The bottom line, the Alcotest machine and temperature probe will continue to be used in DWI cases, but the defense challenge to the foundation documents challenging the reliability of the Alcotest shall continue to be argued.

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