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Romano v. Kimmelman

decided.: March 26, 1984.

WILLIAM ROMANO, RAYMOND G. AKERSTEN, DONALD HAND, LAWRENCE O'BRIEN, BRUCE DECHER, JOSEPH AMATO, AND RICHARD STROPOLI, PLAINTIFFS-APPELLANTS,
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. STATE OF NEW JERSEY (BY MONMOUTH BEACH BOROUGH), PLAINTIFF-RESPONDENT, V. WILLIAM ROMANO, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY WALL TOWNSHIP), PLAINTIFF-RESPONDENT, V. DONALD HAND, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY MIDDLETOWN TOWNSHIP), PLAINTIFF-RESPONDENT, V. RAYMOND G. AKERSTEN, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY HOLMDEL TOWNSHIP), PLAINTIFF-RESPONDENT, V. LAWRENCE O'BRIEN, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY MANASQUAN BOROUGH), PLAINTIFF-RESPONDENT, V. RICHARD STROPOLI, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY HOWELL TOWNSHIP), PLAINTIFF-RESPONDENT, V. BRUCE DECHER, DEFENDANT-APPELLANT. STATE OF NEW JERSEY (BY HAZLET TOWNSHIP), PLAINTIFF-RESPONDENT, V. JOSEPH AMATO, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division and Monmouth County District Court.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Handler, J.

Handler

ORDER PENDING DECISION AND OPINION

Oral argument in this matter having been conducted on November 29, 1983, following the consolidated hearings before the Monmouth County District Court on temporary remand pursuant to this Court's Order of September 8, 1983, and the parties having had the opportunity to address the questions specified in the Order of this Court dated October 26, 1983, and the Court on its own motion having expanded the record in this appeal to include relevant portions of the record in the case of

State v. Lopat, as set forth in the letter of the Clerk of the Court to all counsel dated December 8, 1983; and

The Court having duly considered and determined the merits of the appeal and having decided that its essential rulings should be communicated to the parties and to the public without further delay in the form of the within Order with the opinion presenting more fully the reasons for the Court's decision to be issued at a later date; and

Good cause appearing;

It is ORDERED that:

1. The Smith and Wesson Breathalyzer Models 900 and 900A are found to be scientifically reliable and accurate devices for determining the concentration of blood alcohol. Such scientific reliability shall be the subject of judicial notice in the trial of all cases under N.J.S.A. 39:4-50.

2. The results from the administration of the Smith and Wesson Breathalyzer Model 900 (Model 900) have not been shown to be affected by radio frequency interference (rfi) except under the most unusual circumstances, which are highly unlikely to occur in the use of this instrument. The results of the administration of the Model 900 can be received in evidence in accordance with the standards under State v. Johnson, 42 N.J. 146 (1964), without further proof establishing any additional conditions for admissibility relating to the effects of rfi, provided that the current practice of banning hand-held transmitters from any area in close proximity to the breathalyzer instrument has been followed.

3. The results from the administration of the Smith and Wesson Breathalyzer Model 900A (Model 900A) can be affected by rfi under certain circumstances. Results from a Model 900A can be received in evidence in any case under N.J.S.A. 39:4-50 that is now pending untried or that may be filed in the future, provided either of the following conditions for admissibility relating to the effect of rfi is satisfactorily established in

accordance with the standards under State v. Johnson, 42 N.J. 146 (1964):

a. if the results of the administration of the instrument consist of two readings or tests within a tolerance of 0.01 percent of each other, the results shall be fully admissible without additional proofs relating to the effect of rfi;

b. if the condition set forth in subsection a. is not applicable or is not established, then a determination of the rfi-sensitivity of each such instrument shall be made through the use of periodic on-site tests or inspections in accordance with the procedures followed by the New Jersey State Police since September 1983;

(i) if it is determined by such procedures that the instrument is not rfi-sensitive, the results of the administration of said instrument shall be fully admissible in evidence as set forth in paragraph 2 with respect to Model 900; or

(ii) if it is determined by such procedures that the instrument is rfi-sensitive, the results from the administration of such instrument shall be admitted into evidence provided it is established that at the time the instrument was used, hand-held transmitters were banned from any area in close proximity to the instrument, mobile transmitters were not present in any area in close proximity to the instrument, and the instrument was shielded from outside radio frequency interference.

4. Any prior conviction that was based upon the results of the administration of a Model 900A instrument may be set aside upon a motion of defendant brought within two years of the date of the judgment of conviction under R. 7:4-7 on grounds that the possible effects of rfi upon the results of the administration of such breathalyzer instrument constitute newly discovered evidence, provided:

a. the administration of the breathalyzer instrument occurred on or before June 1, 1983;

b. the defendant proves by a preponderance of the evidence that there was no sufficient independent competent and credible evidence of intoxication in support of the conviction aside from the results of the administration of the instrument; and

c. the State then fails to establish in accordance with the standards under State v. Johnson, 42 N.J. 146 (1964), either of the conditions of admissibility set forth in paragraphs 3(a) or (b).

5. Any matter now in dispute in the within appeal and not adequately resolved by the terms of the within Order may, to the extent deemed necessary, be settled by the Court on its own motion or on the application of any party by further supplemental

order or by the issuance of its final decision and opinion in this case.

6. All pending untried and future cases under N.J.S.A. 39:4-50 shall be prosecuted in accordance with the terms of the within Order, which shall remain in effect unless otherwise modified by further order or final decision of this Court.

7. The individual cases that were the subject of the within appeal are hereby remanded for trial and disposition in accordance with the terms of this Order to the Monmouth County District Court, now known as the Special Civil Part, Law Division, Superior Court, Monmouth County. Other than as provided for by this Order, jurisdiction over these matters is not retained.

Each of the individual plaintiffs in these cases had been charged in separate municipal courts with driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. The respective charges against each plaintiff were based in part upon the results of the administration of Smith & Wesson breathalyzer instruments. Plaintiffs brought an action in the Superior Court, Law Division, against the State of New Jersey, the Attorney General, and the Superintendent of the New Jersey State Police, alleging that the Smith & Wesson breathalyzer models 900 and 900A (models 900 and 900A) were unreliable and that their use by the State to furnish evidence of guilt was unconstitutional and unlawful.

The impetus for plaintiffs' suit was the April 6, 1983 decision of a municipal court judge in a case entitled State v. Lopat. In that case, the judge had found models 900 and 900A unreliable because of their susceptibility to radio frequency interference and, accordingly, refused to admit those test results into evidence to prove a violation of N.J.S.A. 39:4-50. Relying upon that decision, plaintiffs in their case claimed that the use of

these breathalyzer instruments violates their due process rights under the federal Constitution and their protectable interests under 42 U.S.C. ยง 1983 (1976) (section 1983). They sought relief on these claims and an injunction against the use of models 900 and 900A test results as evidence in pending and future drunk driving proceedings. Further, they requested an order providing for new trials for all persons convicted on evidence obtained from these breathalyzer models, and a prohibition against the use of any prior conviction that was based upon such test results to determine second or subsequent offender status of persons charged under N.J.S.A. 39:4-50.

The trial court issued a temporary restraining order prohibiting the introduction of models 900 and 900A test results in all cases unless, as a foundation, the State could demonstrate that it had complied with certain procedures prescribed by Smith and Wesson for determining which test results from a particular instrument might have been affected by radio frequency interference. Later, on cross motions for summary judgment, the trial court rejected plaintiffs' claim that under a theory of collateral estoppel, the decision in the Lopat case -- that models 900 and 900A were unreliable -- was binding on the court. The trial court denied as well plaintiffs' motion for certification of the suit as a class action. The trial court also denied defendants' motion to dismiss, and scheduled the matter for hearing.

The parties on both sides sought leave to appeal, which was granted before the hearing at the trial level. The Appellate Division affirmed the denial of class action certification and the denial of plaintiffs' motion for summary judgment on the ground of collateral estoppel. In addition, the court ruled that plaintiffs failed to state a claim cognizable under section 1983. Further, the court determined that plaintiffs individually were entitled to seek relief in municipal court from any prior convictions and new trials on the basis of newly discovered evidence, if brought within time under R. 7:4-7. The court also noted

that none of the pending charges against plaintiffs had been tried and plaintiffs, and all other similarly situated parties, would have the opportunity at trial to challenge the reliability of the breathalyzer instruments and the admissibility of their test results in individual prosecutions. Accordingly, the Appellate Division reversed the trial court's denial of defendant's motion to dismiss plaintiffs' complaint and vacated the restraints that had been imposed by the trial court. Romano v. State, 190 N.J. Super. 554 (1983).

This Court certified the case, 94 N.J. 610 (1983), but denied a stay of the Appellate Division decision. The certification was limited to those issues relating to the reliability of models 900 and 900A and the admissibility in evidence of the test results from the use of these instruments. It did not include issues relating to the rejection by the Appellate Division of constitutional claims, or those made pursuant to section 1983, or to the refusal to certify the action as a class action. The Court also recognized that the plaintiffs in this action were named defendants in separate pending municipal court cases, and that the issues in those seven cases paralleled the issues in the certified appeal. Accordingly, the grant of certification in this case was deemed to include the seven individual municipal court actions. In a separate order, the Court specially remanded the seven municipal court cases for a limited hearing on the admissibility of breathalyzer tests, in terms of both the general reliability of breathalyzers and the use of the test results in the case of each plaintiff. For purposes of the limited remand, the Court directed that the seven actions be consolidated and transferred to the Monmouth County District Court and assigned to Hon. Patrick J. McGann, J.S.C., pursuant to N.J.S.A. 2A:6-37 and R. 7:1.

Those hearings were conducted in September 1983. Plaintiffs took the position that the question of the breathalyzers' reliability had been dispositively resolved in the Lopat case, and, thus, ...


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