The Breathalyzer has been in use since 1954, according to the Newark Star-Ledger.  But move over, old friend, and meet the new gold standard, Alcotest 7110, so says the New Jersey Supreme Court in a 132 page unanimous opinion.

Challenges by defense lawyers to the accuracy of the computerized Alcotest prompted the Supreme Court in early 2006 to appoint retired Appellate Division Judge Michael Patrick King to study the machine. King held dozens of public hearings and issued two voluminous reports last year, finding the device was “much more reliable” than the Breathalyzer.

Don’t ask me what the two voluminous reports say, or even what the 132 page decision says.  I’m not interested enough to read any of them.

But I do appreciate the Court’s determination that the Alcotest is “much more reliable” than the Breathalyzer.  No doubt, the same is true of the millions of people whose lives were ruined because of the “much less reliable” Breathalyzer, which similarly enjoyed “state of the art” status until somebody figured out it was garbage.

Therein lies the problem with courts making decisions about the reliability of science.  They just aren’t any good at it.  They never have been.  High tech mumbo jumbo confuses the legal mind.  Courts want to have scientific-type tests that they can rely upon so that they don’t have to actually make decisions.  “But the Alcotest says so,” the judge pronounces, “and therefore you are guilty!”

“We are confident, based on this far-reaching and searching inquiry, that the device is sufficiently reliable so that the rights of all defendants have been protected,” Justice Helen Hoens wrote for the unanimous court. “The device, with the safeguards we have required, is sufficiently scientifically reliable that its reports may be admitted in evidence.”

What’s missing from this quote?  The recognition that the same was said of the Breathalyzer in its day.  How did it go from being scientifically reliable to yesterday’s junk science?  The answer, obviously, is that the device didn’t change, but the scientific assumptions didn’t play out the way lawyers decided they should.  That’s because lawyers (and judges) are notoriously bad scientists.

“The Alcotest, utilizing state-of-the-art technology and a host of additional safeguards, will provide strong evidence and sure justice for those who violate New Jersey’s drunken driving laws,” Milgram said. “It will be an invaluable tool for police in their efforts to protect the lives of all motorists who use New Jersey’s roadways.”

So says the prosecution.  It’s like those products that put, “new and improved” on the box, it must be true because it says so. 

The legal system has a long and sordid history of backing the wrong scientific horse.  We pick the one that works best for a clean conviction, and we package it up all nice and pretty in hyperbole to make it seem above reproach.  We can only see that screw-up when the next shiny device comes along, and somebody (as here) opines that it’s “much more reliable” than the last device, which was similarly foolproof when it hit the shelves.  We never seem to learn.

And then there’s always the wild card, the cops.  Maintenance, testing, updating, all the things that are supposed to be done to safeguard the legitimacy of the device, are in the hands of the cops.  We don’t get to watch them do it.  We take their word for it. 

When was the last time any cop testified that, “no, we actually never check the radar with the tuning forks.  In fact, we lost those darn forks two weeks after the radar arrived, and never tested it again.”  Anybody want to best that this is how it really happens?

“But that would be perjury, if they testified that they complied with all the safeguards and requirements,” you say.  Yeah?  So?  Who’s going to arrest the cop?  Who’s going to prove it?  This is a big black hole in the scheme.  But nary a court will notice.  To do so would be to admit that the system really is a sham, and we wouldn’t want that.  It would make us look bad.

A great business idea just occurred to me.  I’ll invent the Smashalyzer 5000, with “new and improved” conviction software.  No matter who blows into it, the green light comes on that says, “You’re smashed!”  I’ll sell a million of them.  They’ll provide “sure justice for those who violate New Jersey’s drunken driving laws,” not to mention anybody else the cops want to nail.  One thing’s for sure, no drunk driver can beat it.