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Romano v. Kimmelman

Decided: July 27, 1983.

WILLIAM ROMANO, RAYMOND AKERSTEN, DONALD HAND, LAWRENCE O'BRIEN, BRUCE DECHER, JOSEPH AMATO, AND RICHARD STROPOLLI, PLAINTIFFS-APPELLANTS, CROSS-RESPONDENTS,
v.
IRWIN I. KIMMELMAN, IN HIS OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CLINTON PAGANO, IN HIS OFFICIAL CAPACITY AS COLONEL OF THE NEW JERSEY STATE POLICE AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, CROSS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Polow, Francis and McElroy. The opinion of the court was delivered by Polow, P.J.A.D.

Polow

[190 NJSuper Page 557] The seven plaintiffs, all charged with operating motor vehicles while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50, instituted this action in the Superior Court alleging that use of "the Breathalyzer 900 and 900A by the State" deprives them and all others similarly situated of due process rights under the United States Constitution and of "rights, privileges and immunities secured by 42 U.S.C. § 1983." Thus, for themselves and all others similarly situated, plaintiffs demand an injunction against use of Smith and Wesson's Breathalyzer 900 and 900A test results as evidence in drunk driving proceedings, an injunction against further use of the designated breathalyzer models by law enforcement personnel, a

blanket order providing for new trials for plaintiffs and all persons previously convicted after trial or upon guilty plea in cases in which the designated breathalyzer models were used, and a prohibition against use of any prior conviction based upon such breathalyzer test results in determining second or subsequent offender status.

On April 26, 1983 the trial judge signed an order temporarily restraining introduction of breathalyzer model 900 and 900A test results in all cases unless the State could show compliance with current recommendations of the manufacturer, Smith and Wesson, in its September 10, 1982 Consumer Advisory or any changes thereof. Plaintiffs' motions for certification of the suit as a class action and for summary judgment were denied but a hearing was ordered for the purpose of receiving evidence including expert testimony on the reliability of the breathalyzer. The trial judge anticipated that a Superior Court determination made following such a hearing would then be subject to appellate review. Defendants' motions to dismiss the complaint and for adjournment of the hearing date were denied. Before the scheduled hearing could be conducted, both sides sought and were granted leave to appeal.*fn1

On this appeal, plaintiffs challenge as reversible error the denial of certification of the suit as a class action and the refusal to apply collateral estoppel against the State based upon a prior municipal court determination, not involving these plaintiffs, that the breathalyzer models in question are unreliable.*fn2

Although the trial judge in the action which is the subject of this appeal dismissed the complaint as against the State,*fn3 defendants urge that the complaint should also have been dismissed as against the Attorney General and the Superintendent of the State Police because they are not "persons" within the meaning of 42 U.S.C.A. § 1983, (herein § 1983), there is no allegation of bad faith, plaintiffs have not been deprived of their due process rights and they have not demonstrated irreparable harm nor lack of an adequate remedy at law. We conclude that the complaint does not establish a right to relief under § 1983, there is an adequate remedy at law for plaintiffs and others similarly situated and the doctrine of collateral estoppel is not applicable to give a binding effect upon other courts of this State to the municipal court determination in the Lopat case.

Plaintiffs' collateral estoppel argument is that the State, having participated in the Lopat hearing, may not relitigate the breathalyzer reliability issue already ruled upon by a municipal court judge although no Lopat defendants are parties to this action. The record of the Lopat municipal court hearing has not been reproduced on this appeal. The oral opinion of the municipal court judge indicates that the Lopat defendants, all of whom had breathalyzer readings exceeding .10%, challenged the admissibility of those readings and the Attorney General intervened and represented the State pursuant to N.J.S.A. 52:17B-1 et seq. in the preliminary hearings dealing with the reliability of the breathalyzer test results. After extended hearings the municipal court judge, on April 6, 1983, rendered his oral opinion holding the breathalyzer readings unreliable and inadmissible. He found that Smith and Wesson Breathalyzer Models 900 and 900A had been authorized by the Administrative Code as breath testing instruments in June 1982 despite indications that certain radio equipment including walkie-talkies and other communication

devices produced interference with the operation of those machines. The judge found Smith and Wesson knew the problem and in September 1982 issued its customer advisory indicating that recent tests of the two designated models showed susceptibility to radio interference. Certain guidelines were recommended therein "as a matter of preparedness for courtroom testimony." It appears that the municipal court judge heard expert testimony and observed breathalyzer testing upon which he concluded that the breathalyzer test results were so unreliable as to be inadmissible against any of the Lopat defendants. Although given the opportunity to do so, the Attorney General did not seek leave to appeal from that preliminary determination. The record on this appeal does not reveal the ultimate disposition, if any, of the drunk driving charges against any of the Lopat defendants.

The Demand For Class Action Certification

Plaintiffs propose recognition of various groups of persons for class action certification pursuant to R. 4:32-1 et seq. They suggest one group consisting of all persons convicted after trial in this State in proceedings involving use of breathalyzer models 900 or 900A within the two year period before the issuance of Smith and Wesson's Customer Advisory, a second group consisting of persons convicted more than two years before that date, a third group consisting of all persons who entered guilty pleas in reliance on breathalyzer 900 or 900A readings, ...


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