Kolovsky, Lynch and Allcorn.
[135 NJSuper Page 20] Defendant, who was charged with operating a motor vehicle while under the influence of intoxicating liquor (N.J.S.A. 39:4-50(a)), was given a breathalyzer test, with his consent, a short time after his arrest. The reading obtained, .20% alcohol in the blood by weight, would establish prima facie evidence of a violation of the statute. See N.J.S.A. 39:4-50.1. When defense counsel requested that he be permitted to examine the test ampoule used in the breathalyzer test, he was advised that the ampoule had been destroyed in accordance with the procedure established by the State Police.
In the County Court, defendant moved, pursuant to R. 3:5-7, that (a) the complaint be dismissed because of the State's failure to produce the ampoule, or (b) the results of the breathalyzer test be suppressed. Pursuant to an opinion reported at 129 N.J. Super. 562, the trial judge granted defendant's motion to suppress the results of the breathalyzer test but denied the motion to dismiss the complaint. The State obtained leave to appeal from the order of suppression. In an opinion dated February 6, 1975, reported at 133 N.J. Super. 338, we reversed and remanded the matter to the County Court for supplementation of the record by receipt of such additional testimony as the parties might offer, and findings of fact and conclusions of law as to whether preservation of the test ampoule involved was feasible or practical and, if so, under what conditions, and whether testing thereof would provide scientifically useful data to determine reliability of the test administered and of the resultant reading.
After taking further testimony pursuant to the remand, the County Court made findings of fact and conclusions as follows:
Based on the testimony and evidence presented at this hearing the court finds as fact:
1. It is presently impossible to preserve the breathalyzer ampules so as to reliably eliminate all the factors which cause unpredictable changes in the ampule contents subsequent to the administering of the breathalyzer test.
2. The reactions begun inside the ampule by the original breathalyzer test continue in an unpredictable and uncontrollable manner. These unpredictable reactions cause subsequent analysis or retesting of the ampule to be totally unreliable evidence as a check on the accuracy or validity of the original breathalyzer test.
3. There is no predictable relationship to the changes that occur within the test ampule and the passage of time.
4. At the present time subsequent retesting or chemical analysis of the test ampules provides no acceptable scientific relationship to the accuracy or validity of the original test results.
5. The theory of Dr. Volpe and the experimentation of Dr. Jones have not been thoroughly tested or scientifically scrutinized as to be
considered acceptable as scientific fact or accurate enough to produce results ...