On appeal from the Superior Court, Appellate Division, whose opinion is reported at 229 N.J. Super. 207 (1988).
For affirmance and remand -- Chief Justice Wilentz, Handler, Pollock, O'Hern and Garibaldi. For reversal -- Justice Stein. The opinion of the Court was delivered by Garibaldi, J. Stein, J., dissenting.
This appeal involves yet another challenge to the scientific reliability of breathalyzers by defendants charged under N.J.S.A. 39:4-50. Specifically, defendants challenge the accuracy of the breathalyzer test results based on partition -- ratio variability.
Defendants are charged with violating N.J.S.A. 39:4-50(a), which makes it unlawful for a person to operate "a motor vehicle with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood . . .". This provision enacted by 1983 amendment defines the per se violation of driving while intoxicated. ("DWI"). The breathalyzer, the machine the State employs to ascertain blood alcohol, measures the amount of alcohol in the breath and multiplies that by 2100 to arrive at the level of alcohol in the arterial blood supplying alcohol to the brain. This 2100:1 partition ratio presumes that every 2.1 liters (2100 milliliters) of expired alveolar air (or air expired in the last 1/3 portion of a deep breath) contains approximately the same quantity of alcohol as one milliliter of blood. If a person's actual blood-breath ratio is lower than 2100:1, the breathalyzer will overestimate blood alcohol, and vice-versa.
Defendants assert that because people have broadly divergent ratios of breath alcohol relative to blood alcohol, the 2100:1
partition ratio is inaccurate and the breathalyzer-test results premised on that partition ratio are scientifically unreliable.
We reject this challenge to the breathalyzer, and continue to deny admissibility of extrapolation evidence to refute the breathalyzer's results. We find that breathalyzer testing is a practical and reasonably accurate way of fulfilling the Legislature's intent to punish drunk drivers.
A. Background Procedural History and Facts
Downie sought a pretrial hearing, pursuant to Rule 3:13-1(b), in order to present expert testimony regarding the scientific unreliability of breathalyzer-test results. To economize on the costs of presenting that testimony, Downie moved to consolidate his case with the drunk-driving cases of three other defendants also represented by his attorney. The other defendants are Mr. Matthews, Mr. Marotta and Mr. Carroll. The cases arose in four different municipalities, all served by the same municipal court judge, who consolidated the four actions with regard to common questions of law and fact and granted a pre-trial conference.
The Monmouth County Prosecutor filed a motion to appeal nunc pro tunc the municipal court's consolidation order. The Law Division found that consolidation was improper but permitted the municipal courts to consider evidence regarding the admissibility and competency of breathalyzer-test results. The State appealed from the Law Division's Order.
The Appellate Division, relying on this Court's order in Romano v. Kimmelman, 96 N.J. 66 (1984), that judicial notice "shall" be taken of the scientific reliability of breathalyzers,
subject to few limited exceptions not at issue in this case,*fn1 reversed the Law Division and held that evidence regarding the scientific reliability and accuracy of the breathalyzer-test results based on partition-ratio variability was inadmissible. 229 N.J. Super. 207. The Appellate Division considered this Court's decisions in State v. Tischio, 107 N.J. 504, 506 (1987), app. dism., 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988) (N.J.S.A. 39:4-50 mandates a conviction for DWI based solely on the breathalyzer reading in excess of .10% taken within reasonable time of arrest even if reading at time of operation would have been lower), and State v. Johnson, 42 N.J. 146, 171 (1964) (testimony disputing the accuracy of the breathalyzer device has negligible probative value in the present state of knowledge of the scientific and medical community), as reflecting this Court's strong belief in the accuracy and reliability of the breathalyzer.
The Appellate Division also decided that the Monmouth County Prosecutor had standing to represent the State, 229 N.J. Super. at 209 n. 1, and that the Municipal Court lacked authority to consolidate cases in different municipal courts. Id. at 210 n. 2. On the other hand, the court found no impediment to the presentation of common proof or argument on similar matters pending before the same court in more than one jurisdiction in the interest of judicial economy. Ibid.
This Court granted the defendants' motion for leave to appeal and the Attorney General's motion for leave to appear as amicus curiae.
B. Factual Record on Limited Remand
This Court remanded the four consolidated cases to the Law Division for a hearing, at which the defendants and the State were instructed to present "evidence to develop a factual record on the allegation that partition ratio variability compromises the scientific reliability of breathalyzer test results [and] which hearing shall address the following issues. One: The nature and extent of the variability of the partition ratio. And, two, the effect, if any, of such variability of the partition ratio on the reliability of breathalyzer test results."
The experts who testified before the trial court were Drs. Borkenstein, Hlastala, Payne, Jones, Dubowski, and Simpson, Messrs. Shajani, Lucas, and Harding, and Sgt. Gullburg. Dr. Borkenstein, who invented the breathalyzer, commented on its scientific reliability. Dr. Hlastala outlined potential physical variables that could affect the blood-breath partition ratio. Drs. Jones, Dubowski, and Payne commented on their blood-breath experimental studies. Messrs. Shajani and Lucas, Harding and Sgt. Gullberg explored their own field work and laboratory studies. Dr. Simpson analyzed the works of others from a statistical perspective, but presented no experimental or field work of his own.
After hearing the experts' interpretation of the physiological data, the lower court found the seven following conclusions of fact:*fn2
1. The breathalyzer, Models 900 and 900A, is a scientifically reliable and accurate device for measurement of the alcohol content of a person's breath (assuming proper functioning of the instrument and a qualified operator).
2. In converting at a ratio of 1 to 2100 the breath-alcohol concentration present in the person's blood, the breathalyzer reading is not scientifically accurate.
3. Calculated blood-breath ratios are worthless for forensic purposes. They are subject to so many variables as to be unuseable except for gross estimates of a person's true lung partition ratio, and then only at a particular moment. (Borkenstein, Dubowski, Payne, Jones, Lucas).
4. In a prosecution for drunk driving, the breathalyzer calibrated at 2100 to 1 is biased in favor of the accused. (A) It under-reads the average person's [blood alcohol] by some 9% or 10%, compared to a venous whole-blood sample that might be simultaneously taken. (B) Its truncated readings give the accused the benefit of anywhere from .001% to .009% on a given test reading. (C) The start line set on the breathalyzer scale gives the subject the benefit of another .003% on any test reading. (All experts agree on the foregoing.) (D) The lower value of two consecutive readings taken fifteen minutes apart is used for proof.
5. The breathalyzer gives a correct reading of alcohol in the breath at a particular moment. It does not distinguish between pre-peak "absorptive" or post-peak "post-absorptive" stages in the intake and elimination of alcohol in the blood. Those terms are of value only to the scientist.
6. The breathalyzer does not overestimate alcohol in the blood at the .10% level to the detriment of the accused. That is clearly so in the post-peak stage. In the pre-peak stage the breathalyzer reading is more accurate in predicting the amount of alcohol affecting the brain than is a venous blood sample and it cannot be empirically demonstrated that it is in error, so long as two breath readings are taken within fifteen minutes of each other, do not differ by more than .01%, and the lower of the two is used for proof purposes. (Jones, Shajani, Dubowski, Lucas).
7. For the breathalyzer to give readings that can be used with confidence, the operator must be sure that at least twenty
minutes have expired since the last ingestion of alcohol to avoid the presence of "mouth" alcohol, which can ...