Justice Timpone continued: 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.” The Special Master found NIST traceability “essential” to confidence in the Alcotest’s results and that the two Draeger-manufactured probes were not NIST-traceable and were insufficient substitutes for the use of a NIST-traceable thermometer. 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. 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. The Special Master reasoned that such facts clearly cut against the State’s argument that the use of the thermometer is an unnecessary redundancy. 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. The Special Master determined that the State had not shown that other states’ practices revealed general acceptance of the reliability of Alcotest results without the use of a NIST traceable thermometer. Because the Special Master’s findings are supported by substantial credible evidence in the record, the Court adopts them.
Applying the general acceptance standard to the Special Master’s findings, the Court holds that the State failed to carry its burden and affirms the Special Master’s conclusion. 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.
There were likely more police-friendly retired judges that would have sided with the State here if they were appointed as the Special Master instead of Judge Lisa. It would be interesting to know what safeguards are in place to prevent the State from influencing the appointment decision.
