On appeal from Superior Court of New Jersey, Middlesex County.
Before Judges Pressler, Landau and Newman.
The opinion of the court was delivered by
NEWMAN, J.S.C. (temporarily assigned)
Tried in the municipal court, defendant Victor Sandstrom was found guilty of a violation of N.J.S.A. 39:4-50(a). The proofs were found to be insufficient to sustain a violation of N.J.S.A. 39:4-98 for speeding. This was the defendant's second DWI conviction. The matter was then heard de novo on the record in the Law Division where the trial Judge found defendant guilty of DWI. The Judge made it clear that without the breathalyzer results he would have been unable to find the defendant guilty of the DWI charge. The sanctions imposed pending this appeal were stayed by the Law Division Judge. The sole issue raised on the appeal concerns the admissibility of the breathalyzer results when a pre-test inspection certificate as to proper working order was issued more than 30 days before the breathalyzer test was conducted and the post-test inspection certificate disclosed a malfunction in the instrument.
The facts are relatively straightforward. On March 7, 1993 at approximately 5:00 P.M. Patrolman Keenan of the Spotswood Police Department observed defendant crossing the center line and speeding. He pulled him over. Defendant had bloodshot, blurry eyes, slurred speech and a strong odor of alcohol. He indicated that he was coming from his ex-wife's house in Monroe and was going to Carteret where he lived. Defendant said he had two beers while visiting his former wife although at trial he conceded on cross examination it might have been three.
Some roadside tests were administered by the patrolman. Defendant recited the alphabet without problems, but his performance on the finger to nose test was unsatisfactory. Because the defendant suffered from a physical handicap (one leg was shorter than the other due to an accident with resulting surgery), further testing as to defendant's balance could not be conducted.
Defendant accompanied the patrolman to the station house where the breathalyzer test was administered. Two breath tests using Breathalyzer (BR900) were given. Each test registered a reading of .14% blood alcohol.
The Spotswood Police Department's daily log book was introduced at trial. That book had the following entry for March 20, 1993: "Breathalyzer not working, red light is out". An entry on the same day indicated that a defendant was transported to East Brunswick for breathalyzer testing. The log book had no notations of malfunction between the date of the prior inspection of January 28, 1993 and March 20, 1993. Patrolman Keenan, who conducted the test, was a properly certified breathalyzer operator and was able to perform the eleven step testing procedure. He found the breathalyzer to be in good working order on March 7, 1993.
The defense objected to the admissibility of the breathalyzer results on the ground that the breathalyzer was not shown to be in good working order on the day of the testing. Relying on State v. Samarel, 231 N.J. Super. 134, 555 A.2d 40 (App.Div. 1989), the defense argued that a pre-test inspection certificate issued more than 30 days before the test was actually administered to the defendant without a post-test inspection certificate attesting to the proper working order of the breathalyzer renders the test results unreliable and, therefore, inadmissible.
The trial Judge, as did Judge Deborah Venezia of the municipal court who wrote a reasoned letter opinion, rejected the argument and admitted the results of the breathalyzer test. In so doing, he concluded that a pre-test inspection certificate's validity does not depend on its being issued no more than 30 days prior to the test in question. Furthermore, the post-test inspection certificate on the breathalyzer's operability indicated that the nature of the malfunction "would make adherence to the checklist impossible." Because the breathalyzer operator was able to ...