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State v. Weller

Decided: December 24, 1986.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DONALD J. WELLER, DEFENDANT. STATE OF NEW JERSEY, PLAINTIFF, V. TIMOTHY R. FLYNN, DEFENDANT



Kingfield, J.s.c.

Kingfield

This opinion addresses the issue of whether a state police laboratory report, containing a positive reading of ethyl alcohol in the blood of a defendant, may be admitted into evidence under Evid.R. 63(13) and 63(15) without accompanying testimony from a qualified toxicologist or chemist.

Defendants, Timothy R. Flynn and Donald J. Weller, were involved in separate motor vehicle accidents which resulted in blood samples being taken. Subsequent state police laboratory reports disclosed blood-alcohol readings of .22% as to Weller and .224% as to Flynn. In each case the single page report was admitted into evidence in the municipal court and a subsequent conviction for driving while intoxicated followed. In neither case did a qualified chemist or toxicologist testify. The convictions in each case were affirmed by separate judges of the Superior Court, Law Division. In the Weller matter the Superior Court, Appellate Division, remanded the matter to the Superior Court, Law Division, for an evidentiary hearing to determine whether the blood-alcohol report was admissible. In the Flynn matter, the Superior Court, Appellate Division, reversed the conviction, 202 N.J. Super. 215. The Supreme Court, 103 N.J. 446, granted the petition for certification and summarily remanded the matter to the Superior Court, Law Division, for reconsideration in light of State v. Matulewicz, 101 N.J. 27 (1985). The two cases were consolidated for the purpose of taking additional testimony. This court has seen fit to reduce its previously rendered oral opinion to writing in view of the fact that no appeal was taken from the ultimate decision as to either defendant.*fn1

At the hearing the State produced the testimony of Dr. Richard Saferstein, Chief Forensic Chemist for the State of New Jersey. He related the general background and responsibilities of laboratory personnel, the standards and procedures used in performing blood-alcohol analysis, and the technical manner in which the test results were obtained and recorded. Defendants offered no independent testimony. The facts which follow are the factual findings of this court based upon the testimony of Dr. Saferstein.

The New Jersey State Police has four forensic laboratories throughout the State with each having a technical supervisor. The toxicology unit of the laboratory performs the blood-alcohol analysis. At the present time, toxicology units at the laboratories throughout the State analyze approximately 1,200 blood-alcohol samples in a period of approximately six months. The tests are performed by forensic chemists who hold Bachelor of Science degrees with a minimum of 24 hours in chemistry. The examiners are constantly supervised and test results are checked by the unit supervisor. All forensic chemists receive a salary for their services and there is no pay incentive based upon the number of results favorable to the State.

In every case, the blood specimen is assigned a number upon its receipt at the laboratory and is then placed in a refrigerator. The failure to properly refrigerate would cause a loss of alcohol resulting in a reading more favorable to defendant.

The blood-alcohol analysis is performed on an instrument known as a gas chromatograph. The test is commonly known as the head space gas chromatography test and has been used for a number of years, not only in this State, but also in numerous other jurisdictions. In general, the test is performed by separating the volatile, ethyl alcohol, from the liquid and

injecting it into the gas chromatograph. The volatile passes through an electrical detector in the instrument at a given time and the quantity would be recorded on a graph. The particular peak on the graph is converted to a blood-alcohol reading.

More specific, the examiner is required to measure a certain quantity of defendant's blood, usually one milliliter. To this the examiner adds the same quantity of an internal standard, in most cases isopropanol alcohol in water. That substance is placed in a sealed container and heated in a water bath at approximately 37 degrees centigrade until equilibrium is obtained and the volatile separates from the liquid into the head space provided. If for some reason equilibrium is not properly obtained or if the volatile is prematurely withdrawn, the amount of volatile would be reduced resulting in a reading more favorable to defendant. The volatile is removed from the head space with a syringe and injected into the gas chromatograph column. Once in the column, the volatile is carried by a carrier gas, ordinarily nitrogen, which takes it through an electrical detector at a given time. The electrical detector measures the molecules in the volatiles thereby giving a reading for both the ethyl alcohol and the internal standard. The respective readings are readily noticeable since the volatiles pass through the electrical detector at a known time.

The results of the test are depicted as peaks on a graph which are recorded when the detections are made by the gas chromatograph. The peaks shown on the graph include one for the time of injection, one for the ethyl alcohol reading and one for the internal standard reading. The peaks appear on the graph within a known tolerance and any deviation from that standard would immediately be an indication to the examiner that something went wrong with the test. Standard procedures require that the test be run twice and that the results of the test be within a specified standard of error. If they are not, an additional ...


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