On appeal from Superior Court, Law Division, Morris County.
Petrella, Long and Keefe.
Defendant Michael J. Carey entered a conditional plea in the Mt. Olive Municipal Court to driving under the influence of alcohol, contrary to N.J.S.A. 39:4-50. Carey was sentenced as a second offender to a suspended ninety-day jail term, a $500 fine, a $100 surcharge, a two-year revocation of driving privileges, and thirty days of community service. After a trial de novo on his appeal to the Law Division, Carey was again found guilty and the same penalties and fines were imposed as had been imposed in the municipal court.
Defendant contends on appeal:
I. Defendant has a fundamental right to present a defense.
II. There exists no authority for the court below to bar the defendant's attempt to show (1) the presence of occupational volatiles in his bloodstream, and (2) their presence leading to a false positive reading of his blood alcohol content.
At the trial in the municipal court Carey did not dispute the 0.10% breathalyzer reading nor did he dispute the qualifications of the operator or the manner in which the tests were administered. His sole proffered defense was that part of his blood-alcohol level was attributable to sources other than drinking, which he refers to as "occupational volatiles and endogenous alcohol."*fn1
Defendant claims that his occupation exposes him to alcohol substances, other than ethyl alcohol, which enter his blood-stream and can contribute to a higher breathalyzer reading than his drinking would otherwise have produced. Thus, in a pretrial motion in the municipal court, Carey sought to present expert testimony on his claimed defense. He proposed to have his expert testify that he had given Carey breathalyzer tests on another occasion when Carey had assertedly not been drinking, and that these tests had produced 0.02% blood alcohol level readings. Consequently, he argues that under this theory only 0.08% of the 0.10% blood alcohol level reading produced in connection with his driving under the influence offense was attributable to drinking. When the municipal court Judge denied Carey the opportunity to present expert testimony on this subject, Carey entered a guilty plea and reserved the right to raise on appeal his claim that only part of his blood alcohol level was attributable to drinking.*fn2
Our reading of the record makes it clear that Carey does not dispute the fact that he was drinking prior to his arrest, only
that his breathalyzer reading was potentially 0.02% higher than would have been the case based on his claim of "occupational volatiles and endogenous alcohol" in his bloodstream. This case comes to us only on the aspect of driving under the influence by virtue of a violation of the blood alcohol level percentage, as the trial Judge made no independent finding of driving under the influence based on lay opinion testimony.
We are satisfied from our review of the record that the trial Judge properly rejected the proffered expert testimony. Initially, we note Carey's expert did not conduct his tests at any time relevant to the date of the offense. Thus, the conditions and circumstances were not comparable. The record does not reflect what variables might affect the test results. In addition, in State v. Johnson, 42 N.J. 146, 166 n. 3, 199 A.2d 809 (1964), our Supreme Court stated that voluntary ingestion of drugs, which in combination with the voluntary ingestion of alcohol, results in intoxication of the defendant, is sufficient to support a conviction for driving while intoxicated. "It is sufficient if [the impaired ...