This is an appeal from a conviction of the defendant in the Cranford Township Municipal Court on a charge of driving a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50. A stenographic record having been made in that court, the appeal was heard de novo on the record. R.R. 8:7-5.
[The County Court here reviews the conflicting testimony and the operation and results of the Harger Drunk-O-Meter test at length.]
N.J.S.A. 39:4-50.1 provides as follows:
"In any prosecution for a violation of section 39:4-50 of Title 39 of the Revised Statutes relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
1. If there was at that time 0.05 per centum or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
2. If there was at that time in excess of 0.05 per centum but less than 0.15 per centum by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
3. If there was at that time 0.15 per centum or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
The foregoing provisions of this section shall not be construed as requiring that evidence of the amount of alcohol in the defendant's blood must be presented, nor shall they be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant."
The most common form of making a chemical analysis to determine the percentage of alcohol in the blood is by means of the Drunk-O-Meter test.
In the case of Hill v. State , 158 Tex. Cr. R. 313, 256 S.W. 2 d 93 (Tex. Crim. App. 1953), the court held that there are three essentials to the admissibility of evidence on the result of a Drunk-O-Meter test: (1) proof that the chemicals were compounded to the proper percentage for use in the machine; (2) proof that the operator and the machine were under the periodic supervision of one who has an understanding of the scientific theory of the machine; (3) proof by a witness who was qualified to calculate and translate the reading of the machine into the percentage of alcohol in the blood.
After reviewing the testimony of Officer Ryan and Mr. Brady, however, I am satisfied that the State has complied with the second and third essentials but has failed to comply with the first essential. Officer Ryan was sufficiently and adequately trained to operate the Drunk-O-Meter machine and to calculate and translate the reading of the machine. There is no proof, however, that the chemicals were tested or were compounded to the proper percentage for use in the machine. Officer Ryan testified that he had no knowledge when the chemicals were tested prior to August 6, 1956; that he used the chemicals in this particular machine prior to August 6, 1956, but that he did not know whether he used the chemicals that were placed in there after August 1 or the ones placed there prior to that time; that the Drunk-O-Meter machine was put in the department in November or December 1955; that he is not qualified in testing chemicals, although in training he received information as to how these chemicals should be tested and that he was told that the chemicals should be tested enough to maintain their purity, and that he did not know when the chemicals were brought in. He further testified that there was nobody in the department to check him and nobody ever tested him in the operation of the Drunk-O-Meter.
Mr. Brady testified that potassium permanganate decomposes; that it decomposes because of the peculiar properties of the oxide, so that the State Police and other law enforcement agencies that supplement their investigations with
the Drunk-O-Meter constantly keep a check on the potassium permanganate. The chemicals should be checked every 15 days. He further testified that where there was no evidence that the chemicals were changed or tested from November or December 1955 up to August 6, 1956, when defendant Brezina was tested, such a test was unfair both to the person who is operating the machine and the person who is being tested.
Mr. Brady further testified on cross-examination that potassium permanganate has a formula strength of 1 to 20, in dilution, and if it were diluted more than that it would take less time to reduce the alcohol. That means that there would be less volume of air, so the person would be in a "more drunk" condition; it would show more intoxication than actually existed. He said that potassium permanganate would be affected by sitting on a shelf in a bottle with a cap ...