On appeal from the City Court of the City of Plainfield.
Jayne, Davidson and William J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.s.c.
[4 NJSuper Page 533] Defendant appeals his conviction for drunken driving and the ninety-day jail sentence and permanent revocation of his driver's license imposed as penalties under the mandate of R.S. 39:4-50, N.J.S.A. , because this was his second conviction for violation of that statute. He also appeals from an order denying
him a new trial for which he had applied on the ground of newly discovered evidence.
We find it unnecessary to consider the appeal from the judgment of conviction as we think the trial court erred in denying defendant a new trial.
It appears from the statement of the case that the trial court would have acquitted the defendant except for the evidence produced by a device known as the Harger Breath Test or Drunkometer, upon which evidence the city physician predicated his testimony as to defendant's blood alcohol concentration.
Settled medical opinion apparently is that any person is unfit to drive when his blood alcohol concentration is at or in excess of fifteen-hundredths of one per cent. When the concentration is less than this, a person may or may not be unfit to drive depending upon individual characteristics and reaction to alcohol. The city physician determined defendant's concentration to be over sixteen-hundredths of one per cent. and solely on this finding, testified that defendant was unfit to drive at the time of his arrest.
The test made by the physician was not a blood analysis but a breath test. The Harger Drunkometer determines the weight of alcohol in one cubic centimeter of breath. Two thousand times this weight represents the alcohol concentration in one cubic centimeter of blood.
The Harger instrument is ingeniously contrived. Its important components are a rubber balloon and two tubes containing certain chemicals. One tube contains alcohol sensitive chemicals and the other, called an ascarite tube, contains a carbon dioxide absorbent.
The breath of the person tested is captured in the balloon by his voluntary inflation of it. The breath is released into the tubes and a color change appears in the tube sensitive to alcohol when one hundred sixty-nine thousandths of a milligram of alcohol has been absorbed by the chemicals in it. A third or control tube contains a liquid for color comparison. Simultaneously the carbon dioxide from the breath passing through the system is absorbed by the ascarite tube. The
weight of the absorbed carbon dioxide represents five and one-half per cent. of the weight of the breath from which the stated quantity of alcohol is absorbed. Thus the breath alcohol concentration is arrived at by simple arithmetic when the weight of the absorbed carbon dioxide is known.
The key step in the process is the determination of the weight of the absorbed carbon dioxide. This is done by weighing the ascarite tube before and after it absorbs the carbon dioxide. The difference in weight is so minute as that its detection requires the use of a scale of great sensitivity, "an analytical balance, to a very fine ...