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Judge's ruling on unreliable breath-test indicator could affect other Atlantic County DWI arrests

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MAYS LANDING - A Superior Court judge's ruling could negate drunken-driving arrests throughout Atlantic County, say area defense attorneys and municipal prosecutors.

In overturning a driving under the influence conviction this week, Judge Max Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.

The decision - which covers the entire county - could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable.

"Theoretically, the effect is huge," said Michele Verno, a municipal prosecutor in four Atlantic County towns who said she had not yet read the ruling. "Because the temperature probe is the indicator of reliability for the machine, if that's called into question, then so are the results."

"This is binding in every municipality in Atlantic County," said Alan Lands, the Pleasantville attorney who argued the case. He said the case cannot be appealed because his client has now been acquitted, and to try him again would be double jeopardy.

Atlantic County Prosecutor Ted Housel said he could not comment on the case until he has read the ruling, but municipal prosecutors in the county will look to him in determining what happens next.

"I'm sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters," said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week.

In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.

When the state Supreme Court ruled the Alcotest could replace the Breathlyzer in police departments throughout the state, it named just one manufacturer for the thermometer probe, Baker noted. But instead of using the Ertco-Hart digital measuring system, some departments use one manufactured by the Control Company.

Testimony in another trial concerning the two probes indicated Control is used because it's much cheaper, costing about $300 compared with $2,000 for the Ertco-Hart that also requires annual recalibration for about $700. The Control probe is replaced rather than recalibrated.

Baker found that the higher court mentioned Ertco-Hart several times in its ruling.

"I don't believe that the Supreme Court left out the words ‘or similar devices' simply because they overlooked it," he said. "I think they left it out for a particular reason."

But even if the words had been included, Baker said the state did not prove that Control's probe is comparable.

While Ertco-Hart is independently tested, Control tests its own equipment.

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"If find that that is a critical error," Baker said.

Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company's probe should not be an alternative.

"Not only do you have to meet these standards, it has to be verified independently," he said.

Levow said it's likely another company's probe will eventually be approved. Levow said that wouldn't be a problem, as long as the same standards are applied.

"It looks like Judge Baker was trying to follow the Supreme Court's order," said John Menzel, who also argued the Supreme Court case.

Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said.

"Ertco-Hart was not litigated all that much because it's a fine piece of equipment," Menzel said. "The use of the Control Company was never examined, and there was never any consideration of that device (in the case)."

The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company's probe. Control did not return a request for comment.

If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer's testimony.

"It doesn't necessarily negate all previous and future cases," she said. "But it does create some significant issues."

Atlantic County isn't the only one calling the probe into question. The appellate division heard arguments Tuesday on two Monmouth County cases in which the judge sided against Control. A judge in Mercer County found the probe was a reliable alternative.

"Departments all over the state are going to be coming up on all sides of this issue until the appellate speaks," said Menzel, who also represents one of the Monmouth County defendants. "There is no consensus on this issue statewide."

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