This opinion addresses the question of whether the Model 900A Breathalyzer machine was approved by the New Jersey Attorney General prior to June 21, 1982. It is written because the issue has been raised in a substantial number of pending drunk-driving appeals from various municipal courts. Other issues involved in this defendant's appeal are considered in a separate opinion.
On February 18, 1982 defendant Jay A. Yerkes was charged with drunken driving, a violation of N.J.S.A. 39:4-50. He was tried below and convicted, the conviction resting in part upon
the result of breathalyzer tests which showed a blood alcohol content of .14%. N.J.S.A. 39:4-50.1(3) states that a reading of .10% provides a presumption that the defendant was under the influence of intoxicating liquor.
At the time of the trial in the municipal court defendant stipulated that all required steps were taken with reference to the breathalyzer test and that the results would be admitted into evidence without objection. Later, defendant learned that the machine used in connection with the test was the Breathalyzer Model 900A which had not, by any specific reference, been approved by the Attorney General. N.J.S.A. 39:4-50.3 provides:
Chemical analysis of the arrested person's breath, to be considered valid under the provisions of this act, shall have been performed according to methods approved by the Attorney General . . . .
Defendant, having appealed to this court, argued that the requirements of this statute had not been met and requested an opportunity to supplement the record in order to raise an objection to the admission of the breathalyzer test results.
R. 3:23-8(a) requires a plenary trial de novo when "the rights of defendant were prejudiced below." It appeared to the court that the stipulation concerning the breathalyzer test had been induced by the unintentional but implied representation of the State that the Model 900A breathalyzer machine had, in fact, been approved by the Attorney General. As a result, the question of approval was not raised and was not addressed below. The question of whether the record should be supplemented by the admission of defendant's objection to the 900A machine and any evidence the State wished to present on the question of approval was therefore listed for argument. The parties then agreed that the record should be supplemented; argument was waived. A full hearing on the breathalyzer question followed. Defendant advanced his objection to the use of the test; the State presented expert testimony and numerous exhibits.
It appears that on September 14, 1966, following the procedure then required, the Attorney General filed a letter with the Secretary of State in which he said:
(b) The breathalyzer as developed and perfected by Robert F. Borkenstein.
On April 25, 1969 a second letter of approval was filed in which the Attorney General repeated this approval. On August 12, 1969 he forwarded N.J.A.C. 13:51 to the Division of Administrative Procedure. Subchapter C was headed, "Approved instruments as ...