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State v. McGinley

Decided: September 12, 1988.


Haines, A.j.s.c.



The opinions which follow conclude on the basis of scientific evidence, that the results of breathalyzer tests performed on persons charged with drunk driving (DWI) have a substantial margin of error requiring large adjustments or complete rejection. They will be read by some as promoting the rights of drunk drivers. They should be read as protecting the civil rights of all persons. This court has no regard for drunk drivers. It has an overwhelming regard for the rights guaranteed to all of us by our Constitutions.

Drunk drivers, for good reason, have become the object of severe legislative sanctions and strong public opprobrium. Not all who are accused, however, are guilty. Under our system of justice everyone is entitled to the protection of the law as well as its enforcement. There can be no justice without fair trials, and trials which end in convictions based on unreliable evidence are not fair.

These municipal court appeals, while not consolidated, have been argued together. They involve an identical issue: Whether breathalyzer test results may be challenged on the basis of scientific opinion which concludes that they are subject to errors amounting to as much as 50%? This opinion provides a framework for the court's consideration of the four cases, each of which is addressed separately.

The scientific evidence upon which the defendants rely shows the following: (1) The breathalyzer is designed to test persons having a 2100/1 blood-breath ratio. Such ratios in fact vary from 1100/1 to 3200/1 and the variance can produce erroneous test results. High readings are produced in 14% of the population. (2) The temperature of the machine itself varies, affecting test results. (3) Body temperatures vary, affecting test results. (4) Hematocrit (the solid particles in whole blood) levels vary, particularly between males and females, affecting test results. These sources of error make breathalyzer test

results suspect and, to insure reliability, require the substantial reduction of blood-alcohol percentages based on a translation of those results. The leading expert in the field, recognized as such by both State and defense, is of the opinion that the reduction should be .055.

Counsel were advised in a "preliminary" letter opinion of May 2, 1988, that the scientific opinions upon which they relied constituted an attack upon the reliability of the breathalyzer device itself and therefore an attack which could not be considered because reliability had been determined by several Supreme Court cases. In short, this court considered itself bound by principles of stare decisis. It said:

State v. Johnson, 42 N.J. 146 (1964), held that a breathalyzer (the Drunkometer) is "scientifically reliable and accurate . . . without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of blood alcohol, or why", quoting from State v. Miller, 64 N.J. Super. 262, 268 (App.Div.1960). Johnson relied upon a presumption in the drunk driving statute. (Johnson also held that the presumption was "exceedingly strong in view of the stated scientific knowledge," and that the breathalyzer reading was "most difficult to overcome." [42 N.J. at 173])

Romano v. Kimmelman, 96 N.J. 66 (1984), held that breathalyzer models "900 and 900A are scientifically reliable for the purpose of determining the content of blood alcohol," with a narrow qualification relating to radio frequency interference. [at 82]

State v. Tischio, 107 N.J. 504 (1987), dealt with a statute no longer containing a presumption and held that "a blood-alcohol level of at least 0.10%, determined solely by a breathalyzer test that is administered within a reasonable time after a defendant's arrest for drunk driving, satisfies the statute. . . ." [at 506]

The defendants in the above cases do not contend that breathalyzer test results are inadmissible. They contend that the results must be modified substantially (as much as 50% and, in any event, reduced by .055%) on the basis of new scientific evidence. That contention, however, must be considered in the light of its obvious effect. If the test results can be in error by as much as 50%, the scientific reliability of the breathalyzer itself is significantly in question. In short, the defense contention, no matter how carefully couched to reach an opposite conclusion, is an attack upon the scientific reliability of the machine itself. Since Johnson, Romano and Tischio have established the opposite conclusion and have permitted the State to carry its burden by introducing in evidence the breathalyzer test alone, I am bound to reach the same conclusion on principles of stare decisis.

Counsel were further advised that the scientific literature referred to in the record by both State and defense could not be

considered because it was not introduced into evidence and had not been identified clearly. Consequently, it was the court's opinion, to which the State objected, that the record should be supplemented with this literature as permitted by R. 3:23-8 when the record is "partially unintelligible or defective." The supplementation was not intended to permit any change in the stare decisis conclusion; it was intended to provide as full a record as possible for appellate review.

The proposed supplementation never occurred because defense counsel moved successfully for reconsideration of the stare decisis conclusion. The briefs and arguments presented have convinced me that my prior conclusion was erroneous.

Johnson and Romano stand for the proposition that the breathalyzer machine is scientifically reliable. They did not address the scientific evidence presented here or any questions relating to adjustments of breathalyzer readings. It is certain that they did not make breathalyzer readings non-rebuttable evidence of blood-alcohol content. Tischio simply eliminated the common practice of presenting scientific extrapolation opinion evidence relating to blood-alcohol content at the time of driving. It did not decide and did not have before it the question of whether scientific or other evidence could be produced to show that breathalyzer readings were not accurate. It did not create a conclusive presumption of guilt based upon a breathalyzer reading; it could not have done so because non-rebuttable criminal presumptions are unconstitutional. County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Humphreys, 54 N.J. 406 (1969); State v. Ingenito, 87 N.J. 204 (1981); Evid. R. 13, 14, 15.

Our Appellate Division in State v. Ghegan, 213 N.J. Super. 383 (App.Div.1986), permitted a challenge to a breathalyzer reading, thus distinguishing the reading from the machine itself. In doing so it explained State v. Kreyer, 201 N.J. Super. 202

(App.Div.1985), which could have been read as mandating a conviction if the test result exceeded .10%. The Ghegan court reversed a conviction based on the lower court's belief that a .10% or greater reading required that result. It held that the lower court, in deciding upon guilt or innocence, should have considered not only the test result but also a video tape of the defendant's physical performance and opinion testimony based on the tape. The breathalyzer reading was .25%; the expert was of the opinion that it could not have been more than .05%. The Appellate Division said:

Kreyer does not mandate that a .10% blood alcohol reading is irrebuttable. Rather, Kreyer should be limited to its holding that a .10% reading is sufficient to prove a violation of N.J.S.A. 39:4-50 prima facie. . . . [213 N.J. Super. at 384-385]

In State v. Dohme, 223 N.J. Super. 485 (App.Div.1988), the Court held that breathalyzer test results were inadmissible unless the State proved that the ampoules used in the machine had been subjected to random testing. Thus, a challenge to a component of the machine was permitted. The Appellate Division relied upon Romano in reaching its conclusion. Id. 223 N.J. Super. at 489.

Romano required the State to show that the breathalyzer was not subject to error resulting from radio frequency interference. This is no different than requiring the State to show that the breathalyzer is not subject to error resulting from a difference in the blood-breath ratio of the person tested and the ratio for which the machine is programmed -- 2100/1.

The present arguments challenge the components of the machine when they concern its 2100/1 blood-breath ratio setting and machine temperature; they challenge the administration of the test when they concern differences in the blood-breath ratios, the body temperatures and the hematocrit levels of persons tested. Both challenges are ...

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