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Vol. L · No. I FOL. LArticles

Avery & Avery, Esqs. Ridgefield, NJ John S. Avery, Esq.

The Alcotest 7110 — Foundation Challenges After State v. Chun

JS·A

By John S. Avery, Esq.

Partner · Trial & Appellate

By John S. Avery, Esq.

The Alcotest 7110 MKIII-C is the breath-testing instrument the NJ State Police certified in 2008 in State v. Chun, 194 N.J. 54 (2008). Chun did not rubber-stamp the device; it conditioned admissibility on twelve specific foundation elements. The defense work on a NJ DWI matter often centers on whether the State can lay all twelve. This post walks through the foundation in working order.

Practitioner walkthrough of Chun foundation. Not legal advice. Free consultation: (201) 943-2445.

The Twelve Chun Elements

The Chun foundation includes:

  1. The Alcotest instrument was in proper working order — evidenced by the most recent calibration check
  2. The instrument was operated by a certified operator — current and unexpired
  3. Two valid breath samples were obtained within a defined time window
  4. The two samples correlated within 10% of one another
  5. The 20-minute observation rule was satisfied — the operator continuously observed the defendant for 20 minutes before the first breath sample
  6. No mouth-alcohol contamination — the instrument’s slope detector did not signal mouth alcohol; if it did, the test was reset
  7. A control test was conducted within ±5% of the simulator solution’s known value
  8. No interference patterns — the instrument’s interfering-substance check did not register
  9. A valid AIR blank was conducted before each breath sample
  10. The test was conducted within four hours of the alleged operation
  11. The instrument’s certifications and calibration records were properly maintained by the State Police breath-test coordinator
  12. The operator followed the standard operating procedure as set forth in the State Police protocol

Where Foundations Break

In real cases, the foundation typically breaks at one of three points:

The 20-Minute Observation Rule

Element 5 is the highest-failure element. The operator must observe the defendant continuously — eyes on the defendant, no exiting the room, no diverting attention — for 20 minutes before the first breath sample. Practical reality:

  • Operators take phone calls
  • Operators step out to manage another arrest
  • Operators turn to retrieve a form
  • Defendants burp, hiccup, or regurgitate during the period

If the dashcam shows a break in observation, the foundation collapses.

Two-Sample Correlation

Element 4 — the two samples must agree within 10%. If they diverge by more than 10%, the test is invalid and the operator must restart. Where the operator pushes through a divergent result, the foundation falls.

Calibration Currency

Element 1 / 11 — the instrument’s calibration must be current within the State Police protocol’s window. Where the instrument was tested past the cycle, the foundation falls.

State v. Holland and Subsequent Refinements

State v. Holland, *422 N.J. Super. 185 (App. Div. 2011) addresses the operator’s continuous-observation rigor. State v. Robertson, 228 N.J. 138 (2017) addresses Chun supplemental issues. Together they constitute the gloss on the original Chun foundation framework.

Defense Workflow

The defense audit on every Alcotest case:

  1. Discovery request for: Alcotest test record, 20-minute observation log, dashcam, body-worn camera, station audio, operator certification, instrument certification, calibration record
  2. Frame-by-frame dashcam review of the observation period
  3. Synchronization of the dashcam clock to the Alcotest log
  4. Identification of any foundation defect
  5. Motion to suppress where the defect is litigable
  6. Trial preparation if motion denied — the defect is preserved for cross-examination of the State’s foundation witness

Frequently Asked Questions

Is the Alcotest accurate?

The instrument is reliable when properly used. The defense work isn’t typically about whether the device “works” in the abstract; it’s about whether the State satisfied the foundation in the specific case.

What if my BAC was very low (e.g., 0.08-0.09%)?

Borderline readings are particularly vulnerable to foundation challenge. The 0.005% margin of error and the rising-BAC analysis matter most at the threshold.

Can the Alcotest be tampered with?

The instrument has internal logging that records every test sequence. Tampering would leave forensic traces. Most foundation challenges are about administration, not tampering.

What about Alcotest 9510?

NJ has used the Alcotest 7110 MKIII-C since 2008. Other states have used 9510 successors. NJ’s deployment continues with the Chun-certified 7110.

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For NJ Alcotest foundation challenges: