For State v. Maure: On appeal from Allentown Municipal Court (Monmouth County) by leave granted (Docket No. 22803). For State v. Hobbs: On appeal from Superior Court of New Jersey, Law Division, Burlington County.
King, Shebell and Baime. The opinion of the court was delivered by Baime, J.A.D. Shebell, J.A.D., concurring.
[240 NJSuper Page 271] We granted the State's motion for leave to appeal in these consolidated cases in order to address questions pertaining to the foundational basis requisite to admission of breathalyzer readings. At issue is whether State Police Coordinator's certifications indicating that ampoules from the same batch as those used in the administration of breathalyzer examinations of the defendants were randomly selected and tested satisfy the requirement of spot checking in the absence of proof of independent laboratory analysis. We hold that spot checking of random ampoules by trained members of the State Police is sufficient prima facie proof that ampoules used in testing the defendants were properly constituted and mixed to proper proportions.
We need not recount the facts at length. Defendants Raymond Hobbs, Harold Petty and Daniel Hobart were charged with driving while intoxicated in unrelated incidents (N.J.S.A. 39:4-50(a)). On July 17, 1983 the three defendants appeared with their attorneys in the Springfield Township Municipal Court and requested a consolidated Evid.R. 8 hearing, seeking to exclude the breathalyzer readings from evidence in their respective trials.
The hearing transcript discloses the following salient facts. The ampoules used in testing each defendant were taken from the same batch identified as lot number 70902. The ampoules were manufactured by Guth Laboratories. As is customary, Guth Laboratories supplied random sample ampoules to Galbraith Laboratories for independent analysis of their chemical composition. At the Evid.R. 8 hearing, the State presented a certificate of analysis, commonly known as an assay certificate, prepared by Galbraith Laboratories attesting to the fact that the sample ampoules were tested and were found to be properly constituted and properly mixed to the correct proportions. The uncertified and un-notarized certificate was purportedly signed by Gail R. Hutchins, the executive vice-president of Galbraith Laboratories.
Defendants challenged the authenticity of the assay certificate, claiming that Hutchins' signature was not genuine. In support of their argument, defendants presented other certificates allegedly executed by Hutchins. It is undisputed that each of the signatures that appeared on the respective documents was vastly different. In response, the prosecutor, while agreeing that not all of the signatures were genuine, refused to stipulate with respect to which of the certificates was actually signed by Hutchins. The prosecutor represented from "personal knowledge" that Hutchins does not sign the certificates "in each and every case," but instead "has authorized" others "in her office" to execute these documents.
The prosecutor also contended that an assay certificate is not a prerequisite for admission of breathalyzer test results. Relying on our published decisions in State v. Ernst, 230 N.J. Super. 238, 553 A.2d 356 (App.Div.1989), certif. den. 117 N.J. 40, 563 A.2d 811 (1989), and State v. Ettore, 228 N.J. Super. 25, 548 A.2d 1134 (App.Div.1988), certif. den. 114 N.J. 473, 555 A.2d 600 (1989), the prosecutor introduced the certified statements of a State Police Coordinator representing that he had tested random samples from the same batch as those used in the breathalyzer tests administered to defendants and that they had registered correct readings. More specifically, the certificates admitted into evidence read in pertinent part as follows:
I am a Breath Test Coordinator Instructor, empowered by the Attorney General of the State of New Jersey, pursuant to the provisions of P.L.1966 c. 142 S3 as amended (C. 39:4-50.3) and rules and regulations adopted thereunder, to perform inspection and maintenance of approved instruments for performing chemical analysis of a person's breath. I hereby affirm that I have inspected the approved instrument designated on this certificate. I further attest that this document contains a true, accurate and complete record of the inspection and maintenance performed herein, including random sample testing of ampoules used in the operation of this approved instrument as is evidenced by the ampoules control number(s) designated on this certificate.
Pursuant to regulations promulgated by the State Police, N.J.A.C. 13:51-3.4 and 3.6, the inspection of the breathalyzer instrument and the random sampling of ampoules from the same batch had taken place before and after the tests administered to the defendants.
Based upon the foregoing evidence and the absence of a properly authenticated assay certificate, the Municipal Court judge suppressed the breathalyzer readings in each case. In an oral opinion, the judge determined that the assay certificate was not properly authenticated because substantial questions existed with respect to the genuineness of Hutchins' signature. The judge also found that the State Police Coordinator's certifications did not provide a sufficient foundational basis for admission of the breathalyzer results.
The Superior Court, Law Division, granted the State's motion for leave to appeal and affirmed the Municipal Court's order.
In a written opinion, the judge concluded that an assay certificate attesting to the proper chemical composition of randomly selected ampoules constituted an indispensable prerequisite to admission of breathalyzer results. Citing our opinions in State v. Dohme, 223 N.J. Super. 485, 538 A.2d 1321 (App.Div.1988) (Dohme I), and State v. Dohme, 229 N.J. Super. 49, 550 A.2d 1232 (App.Div.1988) (Dohme II), the Law Division judge held that the State Police Coordinator's certifications were infirm because they provided no basis for an inference that the ampoules randomly tested and the ampoule used in the defendants' breath examinations were homogeneous in chemical composition.
Because of the importance of the issue raised, we granted the State's motion for leave to appeal and scheduled oral argument on an expedited basis. During the pendency of this appeal, the Attorney General requested us to directly review another case in which the Allentown Municipal Court had excluded the results of a breathalyzer test on the basis of the State's failure to produce an assay certificate. More specifically, defendant David Maure successfully moved for suppression of his breathalyzer readings in an Evid. R. 8 hearing. At a prior hearing, the Attorney General had apparently conceded that the genuineness of Hutchins' signature on the assay certificate could not be established. The State thus relied entirely upon State Police Coordinator certifications identical to those discussed previously. In addition, the State presented detailed testimony regarding uniform procedures utilized by State Police Coordinators in their random sampling of ampoules.
When the State's motion was presented to us, we questioned whether our rules of practice permit a direct appeal to this court from an interlocutory order of a Municipal Court. Compare R. 2:2-3(b), with R. 2:2-4. We nevertheless decided to grant the Attorney General's motion and consolidate the State's appeal in the Maure case with the others. We now explain our reasons. Whether or not our rules expressly authorize
a direct appeal from a Municipal Court's non-final order, the parties have consented to this procedure under the unusual circumstances presented. We are convinced that the interests of justice militate strongly in favor of this approach and, to the extent that the extraordinary action we have taken is inconsistent with normal procedures, our rules should be relaxed. See R. 1:1-2. In reaching this conclusion, we have considered the uneven treatment our reported opinions have given to questions relating to the requirement of spot checking, compare State v. Ernst, 230 N.J. Super. at 244, 553 A.2d 356; State v. Ettore, 228 N.J. Super. at 31-32, 548 A.2d 1134, with State v. Dohme I, 223 N.J. Super. at 488, 538 A.2d 1321; State v. Dohme II, 229 N.J. Super. at 52-53, 550 A.2d 1232, and the urgency created by the crushing number of driving while intoxicated cases whose ultimate disposition depends upon resolution of the issue raised.
The simple and overriding fact is that the Maure case provides us with a detailed record which is wholly lacking in the other appeals. We have been assured that essentially the same record would be made were we to remand the Hobbs, Petty and Hobart matters for a hearing with respect to the procedures employed by the State Police in randomly sampling breathalyzer ampoules. We have thus granted the Attorney General's motion with the aim of expeditiously deciding the difficult issue presented.
We digress briefly in order to describe the manner in which breathalyzer ampoules are manufactured, tested and distributed in interstate commerce. An ampoule is a sealed cylindrical container with a solution of potassium dichromate, silver nitrate and sulphuric acid. To conduct a test, the seal on the test ampoule is broken and the breath sample is bubbled through that solution. Romano v. Kimmelman, 96 N.J. 66, 79, 474 A.2d 1 ...