This is an appeal taken by the State from an interlocutory order entered in the Bordentown Township Municipal Court on March 23, 1970, wherein that court ordered stricken from the record all testimony relating to a breath test conducted of the defendant in a case charging violation of N.J.S.A. 39:4-50(a) since there was no testimony presented establishing that an inspection of the breathalyzer instrument was made subsequent to defendant's test conducted on apprehension.
There was a stenographic record created at the municipal court level and the appeal is prosecuted based thereon.
The interlocutory order entered by the municipal court was followed by the direction that an appeal be taken therefrom by the State under R. 3:24, and reserving to that court jurisdiction for further hearing of the said matter following a determination of the appeal from the interlocutory order.
The facts disclosed by the record are that on February 19, 1970 defendant Lanahan was arrested at 12:01 A.M. in
Bordentown Township and charged with violation of N.J.S.A. 39:4-50(a). On March 23, 1970 the alleged violation proceeded to trial before the Municipal Court of Bordentown Township at which time the arresting officer testified that defendant was involved in a rear-end type collision with another vehicle. Based upon the officer's observation, he concluded that defendant was under the influence of alcoholic beverages and therefore issued a summons charging him with violation of N.J.S.A. 39:4-50(a).
State Trooper Boylan observed defendant when he was conducted to the Bordentown State Police Station following his arrest. Based upon his observations, the trooper testified that defendant was under the influence of intoxicating beverages. He further testified as to his qualifications as an operator of the breathalyzer instrument and that he performed two breath tests of defendant, resulting in readings of .17% blood alcohol at 1:15 A.M. and .16% blood alcohol at 1:30 A.M.
State Trooper Newbauer, whose qualifications as a breathtesting coordinator were stipulated, testified that on February 11, 1970, eight days before the tests were performed on defendant, he checked the breathalyzer instrument in the State Police Station at Bordentown and found the instrument to be in proper working condition. He further testified that on March 1, 1970 the Division of New Jersey State Police amended its procedure to provide for the inspection of these breathalyzer instruments every two months instead of every month as had been done theretofore. He further testified that, in his opinion, this bimonthly inspection was all that was needed or required to insure that the instrument was in proper working order; that unlike the drunkometer, the breathalyzer requires no chemical titration, and therefore a monthly inspection is unnecessary. On the municipal court trial date, March 23, 1970, the breathalyzer instrument in question had not been inspected subsequent to the defendant's test on February 19, 1970, in
accordance with the new directive on inspections of that type instrument.
Aside from eliciting the date of the last inspection of the breathalyzer instrument (February 11, 1970), defense counsel conducted no further cross-examination of the State Police breath-testing coordinator and moved to strike all testimony with respect to the breathalyzer tests. The motion was contested by the State. The municipal judge granted the motion, with the understanding that the State would file an immediate appeal from that order under R. 3:24 and that following the determination of that appeal the municipal court would proceed to conclude the hearing on the complaint in a manner compatible with the appellate court's ruling.
The central question here, then, is the admissibility of the results of the breathalyzer tests performed on defendant on February 19, 1970, in view of the testimony that following a change in the administrative order, testing of the breathalyzer instrument was to be conducted bimonthly rather than monthly, and that by reason of the chronology of the events herein, the prior inspection of the instrument was performed some eight days before defendant's arrest and testing, and the ...