On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Antell, Dreier and Havey. The opinion of the court was delivered by Dreier, J.A.D.
The State appeals, on leave granted, from a Law Division order permitting the municipal courts of four municipalities, all served by the same municipal court judge, to hear arguments relating to the admissibility of breathalyzer evidence. The defendants in the four cases are represented by the same attorney. The Monmouth County Prosecutor superseded the various municipal prosecutors and represented the State at the Law Division hearing and in this court.*fn1 In separate actions arising in Burlington County, similar arguments have been raised and disposed of in State v. McGinley, 229 N.J. Super. 191 (Law Div.1988).
On the substantive issue, we understand that each defendant finds no fault with the operation of the particular
breathalyzer involved in his case, but rather challenges whether the breathalyzer machines in general accurately test the subject's blood-alcohol content. The Law Division judge determined that the four matters should not have been consolidated and that four separate hearings should be held. He refused, however, to preclude the municipal courts from holding such hearings.*fn2
The State urges that Romano v. Kimmelman, 96 N.J. 66, 72 (1984), conclusively determined by an order of general application, that
[t]he 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.
And see discussion of this Order, 96 N.J. at 82. The Order further stated:
The results of the administration of 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 [concerning radio frequency interference]. (96 N.J. at 72).
All . . . 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. [ Id. at 74].
See also State v. Tischio, 107 N.J. 504, 506 (1987), app. dism. for want of substantial federal question, U.S. , 108 S. Ct. 168, 98 L. Ed. 2d 855 (1988), holding that N.J.S.A. 39:4-50 mandates a ...