Yaccarino, J.s.c., Temporarily Assigned.
Defendant appeals from a municipal court conviction of driving under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50(a). The appeal was heard de novo on the record.
On September 26, 1972 at approximately 5 P.M. Officer Capraun of the Manalapan Township Police Department was dispatched to the scene of an accident on Route 527 near Rifkins Farm. Upon his arrival at the scene the officer observed a truck lodged halfway into a house which was under construction.
Defendant, who was nearby, advised the officer that he had been driving the truck down the roadway when the door of the truck flew open, causing him to lose control of the vehicle.
The officer testified that he smelled an apparent odor of alcohol on defendant's breath. Defendant's eyes were bloodshot and glazed, his clothing was in disarray, his speech was slurred and he fumbled through his wallet in search of his license and registration. Defendant had to lean on the patrol car for balance. The officer also observed that defendant had visible scrapes and scratches about his face and elbow. The officer rendered on-the-scene first aid and then requested defendant to perform certain balance tests. Upon defendant's refusal he was placed under arrest for suspected drunken driving.
Defendant was taken to the Freehold Area Hospital for emergency treatment and thereafter to Manalapan Township Police Headquarters. During the ride from the hospital to headquarters defendant agreed to submit to a breathalyzer test. Upon arrival at headquarters the officer who was to conduct the test advised defendant that he did not have to take the test. Thereupon, defendant advised the officer that
he refused to submit to the test. Thereafter, defendant's wife arrived at police headquarters and sought to post bail, which had been fixed at $250. She talked to the police officers and then conferred with defendant, who reconsidered his refusal to take the test and "voluntarily" submitted to the examination. The breathalyzer reading was .26%.
What then followed was a rather bizarre course of conduct by the police which included, among other things, the police department's refusal to accept the cash bail they had fixed, the fingerprinting and photographing of defendant over his objection, the handcuffing of defendant to a post at headquarters, and the ultimate jailing of defendant at the Monmouth County Jail because of his refusal to sign an "arrest form." This conduct was later termed by the police chief as "standard procedure" for this type of motor vehicle violation.
Defendant explained his conduct as being the result of physical injuries sustained in the accident. With regard to the exceptionally high reading on the breathalyzer, defendant contends that it was caused by the spraying of his mouth with a breath spray that contained 34.6% alcohol prior to the test to eliminate mouth odor which might have affected the test results.
Defendant contends that the court should exclude the breathalyzer test readings because (1) there was no evidence that the machine was in proper working order, the inspection certificates being inadmissible hearsay; (2) his consent to submit to the test was the product of duress, thereby requiring the suppression of the readings, and (3) the manner in which the police obtained his consent was so unfair that it violated the "due process clause" and "fundamental fairness clause" of the Federal Constitution.
The State contends that the inspection certificates of operability are admissible, relying upon Evidence Rule 63(13). It further contends that defendant's consent was freely given and was not the product of duress.
The court will first consider defendant's contention that the test readings were taken without his consent and should be suppressed.
Motions to suppress evidence which may be used against an accused in a municipal court proceeding are required to be heard in the Superior Court or County Court. R. 3:5-7. The failure to move timely to suppress the results, either before or during that trial, bars an application made for the first time on an appeal de novo on the record. State v. Swiderski, 94 N.J. Super. 14 (App. Div. 1967); State v. Ferrara, 81 N.J. Super. 213 (Cty. Ct. 1963).
The court will next consider defendant's contention that the machine testing results, called certificates of operability, were inadmissible.
During the trial the police officer who administered the test to defendant produced two certificates prepared by a State Police coordinator.*fn1 Over objection, they were received into evidence. The thrust of these certificates is that the officer tested the machine both before and after the time period in which defendant took the test, and the machine was found to be accurate. It is conceded by the state that, absent evidence that the machine was in good working order at the time that defendant took the test, the results or readings are inadmissible.
The use of the breathalyzer reading as reliable evidence was passed upon in State v. Johnson, 42 N.J. 146 (1964). There the court adopted the following statement from State v. Miller, 64 N.J. Super. 262, 268 (App. Div. 1960):
The Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test, without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of blood alcohol, or why.
The Supreme Court set forth a caveat at the conclusion of its opinion:
It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing). [42 N.J. at 171 emphasis added];
In order to understand what the Supreme Court meant by "full proof that the equipment was in proper order," it is necessary to consider the testimony upon which the court rested its opinion. An examination of the transcript of the testimony in Johnson reveals that Trooper Narcisco Chiappelli testified at length as to his testing of the accuracy and operability of the drunkometer machine at the time the test was administered to the defendant. He was cross-examined at length on this issue. Because the statute creates a presumption from the breathalyzer readings alone, it is imperative that the machine be in accurate working order.
In the case before this court the State contends that such proof is not necessary, but rather the certificates issued by the officer who conducts the before and after testing of the machine and concludes that it is in proper order are admissible in lieu of his testimony. The right of confrontation and cross-examination, therefore, rests upon a conclusion encapsuled in a "certification" that such are the facts. The State relies upon Evidence Rule 63(13), which provides as follows:
A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing
or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.
This rule is generally referred to as the business entry exception to the hearsay rule. This exception is generally limited to business records. "The rule reflects the realization that records trusted and relied upon by businessmen are indispensible in commercial litigation * * * Mahoney v. Minsky, 39 N.J. 208 (1963)." (N.J. Rules of Evidence (1972), at 264; section 63(13)-1, "History & Theory."; emphasis added); Records other than commercial payment records have been held to be within the rule. Some records of public agencies are admissible for specified purposes. See Sas v. Strelecki, 110 N.J. Super. 14 (App. Div. 1970); Fagan v. Newark, 78 N.J. Super. 294 (App. Div. 1963). The rule has been used to admit bank records in tax fraud cases, Zacher v. United States, 227 F. 2d 219 (8 Cir. 1955); Papadakis v. United States, 208 F. 2d 945 (9 Cir. 1953), and to admit photostatic copies of freight bills in a prosecution for improper transportation of dangerous explosives, West Coast Fast Freight v. United States, 205 F. 2d 249 (9 Cir. 1953). However, in Hartzog v. U.S., 217 F. 2d 706 (4 Cir. 1954), the court held that government work sheets used in the prosecution for income tax evasion were inadmissible because they were made in preparation for prosecution and because they were the product of the author's judgment and discretion and not the product of any efficient clerical system. The court stated:
There was no opportunity for anyone * * * to tell when an error or misstatement had been made. These worksheets were no more than Baynard's [the preparer of the worksheets] unsworn, unchecked version of what he thought Hartzog's records contained. Applying the criterion of the Hoffman case, that admissibility is to be determined by "the character of the records and their earmarks of reliability * * * acquired from their source and origin and the nature of their
compilation," Hoffman v. Palmer, 318 U.S. 109, at page 114, 63 S. Ct. 477, at page 480, 87 L. Ed. 645 we hold that these worksheets were inadmissible as evidence of the truth of their contents. (Citations omitted) [at 710]
It has not been suggested in this jurisdiction that the testing of a breathalyzer machine as to its proper working order can be proven by certificates. Admissibility of inspection certificates has been dealt with in other jurisdictions by statute (e.g., Pennsylvania Vehicle Code, 75 P.S. § 1002(d); see Commonwealth v. Parish, 138 Pa. Super. 593, 10 A.2d 896) (Super. Ct. 1940).
This case is of first impression in New Jersey, as there appears to be no reported case. This court cannot conceive of how this record of scientific conclusion can be admitted without proof of the accurate operability of the machine, especially when such admission creates a presumption at law carrying criminal sanctions (N.J.S.A. 39:4-50.1.) Inspection certificates have been admitted into evidence in Municipal and County Courts in the past. The rationale of these courts has been that the certificate is entered into evidence to show that on a certain date the breathalyzer was tested for accuracy and, as the State stated in its brief, "to reflect the results of the test." Without testimony and cross-examination of the coordinator who tested the machine, the certificate becomes the sole proof of the machine's accuracy, and in reality it is often accepted as the "full proof" required for conviction. Trial by this machine without proof of its accuracy holds no place in our system of jurisprudence.
Even if Evidence Rule 63(13) were applicable, which this court holds it is not, there was no required supporting testimony whatever that the record was made in the ordinary course of business.
This court has considered the applicability of Evidence Rule 63(16), which provides as follows:
Subject to Rule 64, a writing made as a record, report or finding of fact is admissible if (a) the maker was authorized by statute to
perform, to the exclusion of persons not so authorized, the functions reflected in the writing, and was required by statute to file in a designated public office a written report of specified matters relating to the performance of such functions, and (b) the ...