Decided As Amended March 8 1989.: February 28, 1989.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, whose decision is reported at 222 N.J. Super. 636 (Law Div. 1987).
Antell, Dreier and Havey. The opinion of the court was delivered by Havey, J.A.D.
After defendant's motion to suppress the results of his breathalyzer tests was denied, he entered a conditional guilty plea in the Superior Court, Law Division, to driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. In a reported opinion at 222 N.J. Super. 636 (Law Div.1987), Judge Haines found that defendant was a first offender and sentenced him to a six-month revocation of his driving privileges together with a fine of $250.
On appeal, defendant claims that his breathalyzer test results should have been suppressed because the breathalyzer utilized by the State Police, a National Draeger, Model 900, has not
been certified pursuant to N.J.A.C. 13:51-3.2 as an approved method of breath testing. He also argues that the applicable regulations for testing and certifying methods and instruments for breath testing are void for vagueness. Finally, he contends that the trial court abused its discretion in denying his discovery demand that the State produce "relevant and material" evidence pertaining to the Breathalyzer, Model 900. On its cross-appeal, the State asserts that the trial court erred in not sentencing defendant as a second offender. We now affirm.
Defendant was arrested in 1985 in North Hanover Township for driving while under the influence. He was transported to the Fort Dix Police Barracks where the State Police administered two breath tests utilizing the Draeger Breathalyzer, Model 900. Defendant stipulated that the results of these tests revealed a blood-alcohol level in excess of 0.10%. See N.J.S.A. 39:4-50(a).
Defendant moved to suppress the breath test results, contending that the State failed to have the Draeger machine tested and certified as required by N.J.A.C. 13:51-3.2. At the hearing, it was determined that Draeger had purchased the patent and manufacturing rights to the "breathalyzer" from Smith & Wesson Corporation, which had acquired the rights from Stephenson Corporation. Defendant initially stipulated that the Draeger machine was identical to the machine manufactured by Smith & Wesson. Because N.J.A.C. 13:51-3.5 and N.J.A.C. 13:15-3.6 approve the "Breathalyzer, Model 900" as an instrument and method for chemical breath testing, the trial court concluded, based in part on defendant's stipulation, that independent testing and certification of the Draeger Model 900, were not required "merely because of a change of manufacturer." The trial court therefore denied the motion to suppress.
Defendant moved for reconsideration, arguing that he had "new evidence" that there were differences between the Draeger and Smith & Wesson machines. He also moved for discovery, demanding that the State produce all records of its
testing and certification of the Smith & Wesson and Stephenson Model 900's, and of all records of repairs, malfunctions, and "retirements" of Model 900 machines. The trial court denied this request, but ordered the State to produce any schematic drawings of the Draeger machine and further ordered that the breathalyzer utilized to test defendant be made available for inspection by defendant's expert.
On the trial date, defendant repeated his principal contention that the State's failure to retest and recertify the Draeger Model 900 compelled suppression of the breath test results. However, defendant was unable to produce any evidence, expert or otherwise, demonstrating a difference between the Draeger and Smith & Wesson machines. Concluding that defendant failed to rebut the presumptive validity afforded the Attorney General's actions, the trial court again denied the motion to suppress.
Defendant thereupon entered a conditional plea of guilty to a violation of N.J.S.A. 39:4-50(a). Prior to sentencing, he testified that in 1982 he had entered a guilty plea without counsel to a driving while under the influence charge. He stated that the municipal court did not then advise him of his right to retain counsel and thus he was unaware of that right when he entered the plea. Concluding that defendant had met his burden of proving the absence of counsel at the time of his first conviction, Judge Haines, sitting as a municipal court judge, found that the first conviction could not be considered for sentence enhancement purposes under N.J.S.A. 39:4-50(a)(2). See State v. Laurick, supra, 222 N.J. Super. at 640.
Defendant again argues before us that while the Smith & Wesson Breathalyzer, Model 900, may be an approved instrument and method of breath testing, the Model 900 manufactured by Draeger has never been independently tested and approved by the State Police and Attorney General, and thus cannot be considered "valid" as a breath testing technique.
N.J.S.A. 39:4-50.3 provides that chemical analysis of a person's breath, "to be considered valid under the provisions of this act," must be performed "according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General." Rules promulgated by the Attorney General regulating chemical breath testing are codified at N.J.A.C. 13:51-1.1, et seq. Specifically, N.J.A.C. 13:51-3.5(a), as amended in 1982, states, in relevant part, that:
The Breathalyzer, Model 900, is an instrument approved by the Attorney General . . . and this subchapter, for the testing of a person's breath by chemical analysis. [Emphasis supplied].
The Breathalyzer, Model 900, is also an approved method for performing chemical analysis of a person's breath. See N.J.A.C. 13:51-3.6(a).
Approval of instruments utilized for breath testing is governed by N.J.A.C. 13:51-3.2, which designates the Superintendent of State Police as the official to test the instrument and method for "specificity, precision and accuracy." Upon completion of testing, the Superintendent recommends approval to the Attorney General, who, upon review, may certify the instrument or method pursuant to law. N.J.A.C. 13:51-3.2(d).
Defendant notes that Draeger's acquisition of Smith & Wesson's patent right to the Model 900 simply protects Draeger from competitors producing the same machine, but does not prohibit Draeger from altering or modifying the instrument and making the Model 900 less reliable. He therefore argues that separate testing and certification of the instrument produced by each manufacturer is required under N.J.A.C. 13:51-3.2 to assure the requisite "specificity, precision and accuracy." To require less, defendant contends, violates N.J.S.A. 39:4-50.3 and his due process rights under the Fourteenth Amendment.
Defendant's argument ignores the fact that the regulations certify the "Breathalyzer, Model 900" as an approved instrument and method for breath testing without reference to specific manufacturers of the instrument. The apparent legislative ...