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State v. Slinger

May 22, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TODD SLINGER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication May 22, 1995.

Before Judges Stern, Keefe and Humphreys. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

KEEFE, J.A.D.

The issue on appeal is whether the State's failure to prove the number of times a simulator solution has been used and the actual readings obtained by the State police Coordinator when the breathalyzer was tested goes to the admissibility of the breathalyzer readings or to the weight of the evidence.

Defendant Todd Slinger was found guilty in the Fanwood Municipal Court of driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50. His de novo appeal to the Law Division also resulted in a conviction for that offense. Because this was defendant's third such conviction, he was sentenced to a ten year suspension of driving privileges and other appropriate fines and penalties. A mandatory jail term was not imposed because defendant was not advised of his right to counsel when he pled guilty to his first offense.

On appeal to this court, defendant presents two issues.

POINT I IT IS REVERSIBLE ERROR TO ADMIT EVIDENCE OF BREATHALYZER RESULTS ABSENT A CERTIFICATE OF ANALYSIS OF THE .10 PERCENT BREATH ALCOHOL SIMULATOR SOLUTION.

POINT II IN THE ABSENCE OF THE IMPROPERLY ADMITTED BREATHALYZER RESULTS, THE RECORD ESTABLISHED AT TRIAL DOES NOT SUPPORT A JUDGMENT OF CONVICTION FOR DRIVING WHILE INTOXICATED.

We disagree with defendant's contentions and affirm for the reasons stated herein.

I

Defendant's argument on the first issue is largely based on the testimony of his expert, Richard Saferstein, who was the chief forensic scientist for the New Jersey State Police between 1970 and 1991 when he retired. Saferstein testified that, in 1990, the State decided to purchase the simulator solution used by the State Police coordinators to test breathalyzers rather than have the coordinators prepare the solution themselves as they had done in the past. The solution was packaged in 500 milliter plastic bottles. In order to guaranty the integrity of the testing process, Saferstein was responsible for instituting a procedure whereby the State Police Laboratory would analyze each batch of solution as received from the manufacturer, and then issue a certificate of analysis verifying that the solution was properly constituted. The actual numerical value of the alcohol found in the solution upon testing was listed on each certificate. The certificate, in his view, was the necessary starting point in determining whether the breathalyzer in question was properly calibrated.

In this case, the State did not offer the certificate of analysis into evidence. Instead, the coordinator's certificate, reflecting an inspection of the breathalyzer before and after the date of the offense, was offered to prove that the machine was in proper working order at the time defendant was tested. Defendant maintains that the coordinator's certificate, standing alone, is insufficient to satisfy the first prong of the State's burden under Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984). We disagree.

In State v. Maure, 240 N.J. Super. 269, 573 A.2d 186 (App. Div. 1990), aff'd o.b., 123 N.J. 457 (1991), we found that "the procedures employed by the State Police are reasonably reliable" and that coordinators' certificates were admissible to prove the State's compliance with the Romano requirements. Id. at 283. Although that case addressed certificates of analysis in connection with the use of the ampoules used in testing rather than the simulator solution, we see no valid distinction between the two concepts. In this case, the coordinator's certificate identified the simulator solution batch number, and the strength of the simulator solution. Similar reference to the batch number and certificate of analysis was found to be satisfactory in the context of test ampoules in Maure, id. at 285, and there is no reason to follow a different course here. Cf. State v. Benas, N.J. Super. ...


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