On appeal from Superior Court of New Jersey, Law Division, Ocean County, 43-2000.
Before Judges Conley, A. A. Rodríguez and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2002
We are called upon to determine in this case whether a revision in the standard protocols for use by State Police coordinators in testing breathalyzers affects the admissibility in evidence in driving while intoxicated (DWI) prosecutions of the Breath Test Inspectors' Inspection Certification (BTIIC) to establish that the breathalyzer was in proper working order. Defendant contends the BTIIC's should not have been admitted in his trial because the State failed to present evidence to establish the reliability of the revised protocol, which was utilized by the coordinator in this case. We disagree and affirm defendant's conviction of a per se violation of N.J.S.A. 39:4-50. We also affirm defendant's conviction on the alternate ground of violating N.J.S.A. 39:4-50 without regard to the breathalyzer reading.
At 11:26 p.m. on October 1, 1999, a police officer, standing outside his vehicle, observed defendant driving without his headlamps on. He gestured to defendant to turn on his lights but to no avail. He got into his vehicle, followed defendant a short distance, and pulled him over uneventfully. Defendant began to exit his vehicle twice without authorization from the officer, who instructed him each time to remain in the vehicle until directed otherwise. After the officer completed his call-in of the stop, he approached defendant and instructed him to exit his vehicle. The officer immediately detected a strong odor of alcohol on defendant's breath. The officer instructed defendant to walk to the rear of his van. As he did so, the officer observed the defendant was swaying as he walked. Suspecting defendant of being intoxicated, the officer directed him to perform the leg raising test. The area of the roadway was level and the weather was clear. The officer first demonstrated the test. Defendant was unable to successfully perform it, touching his raised foot to the ground four times and touching his van for balance. Defendant was slurring his speech. The officer informed defendant he believed he was intoxicated and he was under arrest. Defendant became argumentative and resistant. The initial officer and an assisting officer obtained physical control of defendant, handcuffed him and transported him to the station.
Defendant voluntarily submitted to a breathalyzer test, which resulted in two readings of .17% blood alcohol content (BAC). At trial, the parties stipulated that the breathalyzer operator was properly qualified and that he administered the breathalyzer test properly. Defendant objected to the admissibility of the before and after BTIIC's, reflecting tests performed on August 5, 1999 and October 5, 1999 on the breathalyzer used on defendant. The basis of the objection was that in testing the breathalyzer, the coordinator did not follow the protocol approved by our Supreme Court in State v. Garthe, 145 N.J. 1 (1996), but instead followed a revised protocol, effective October 1, 1997, and that the State failed to produce evidence to establish the reliability of the revised protocol.
The municipal court judge admitted the BTIIC's over defendant's objection and found him guilty of a per se violation of N.J.S.A. 39:4-50(a) because the breathalyzer readings established he operated a vehicle with a BAC of .10% or more. The judge alternatively found the evidence established defendant's guilt for operating his vehicle while under the influence of intoxicating liquor based upon the credible testimony by the arresting officer of his observations of defendant, without regard to the breathalyzer evidence. Defendant was sentenced as a second offender to pay a $500 fine and all other mandatory monetary assessments, two year loss of driving privileges, thirty days of community service and forty-eight hours in the Intoxicated Driver Resource Centers program.
On appeal to the Law Division, after a trial de novo, the Law Division judge also rejected defendant's arguments that the BTIIC's were inadmissible and again found defendant guilty of a per se violation of N.J.S.A. 39:4-50(a) and also, alternatively, of driving while under the influence of intoxicating liquors. The same sentence was reimposed.
A breathalyzer test result is admissible in a DWI prosecution only if it is first established that "the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures." Romano v. Kimmelman, 96 N.J. 66, 82 (1984). The State bears the responsibility for establishing all conditions of admissibility, id. at 91, by clear and convincing proof. Id. at 90. Defendant challenges only the first condition of admissibility. That condition is typically satisfied by admission of the BTIIC as a business record, N.J.R.E. 803(c)(6), or as a record, report or finding by a public official, N.J.R.E. 803(c)(8), properly authenticated, N.J.R.E. 901, and on proper advance notice to the defendant of intent to offer it, N.J.R.E. 807. State v. McGeary, 129 N.J. Super. 219, 226-28 (App. Div. 1974).*fn1
Our Supreme Court has determined that the protocols established by the State for testing breathalyzers must be designed to ensure the machine will produce reliable results, State v. Garthe, supra, 145 N.J. at 9, but that the adoption of those protocols is more akin to a State Police intra-agency determination than rulemaking. Id. at 7. Therefore, adoption or modification of the protocols need not comply with the Administrative Procedure Act. N.J.S.A. 52:14B-1 to -24. In Garthe, the Court appended to its opinion a copy of the then-existing protocols, State v. Garthe, supra, 145 N.J. at 15-23 (Appendix B), and determined that they "meet the [State v. Matulewicz, 101 N.J. 27 (1985)] standards for admissibility in terms of 'objectivity . . . regularity . . . routine quality,' and absence of any 'motive to single out a specific analysis for the purpose of rendering an untrustworthy report.'" Id. at 13, (quoting State v. Matulewicz, 101 N.J. at 30). Because there was no evidence presented to establish that the protocols are not scientifically reliable, BTIIC's prepared pursuant to them would be admissible. Id. at 13-14. The Court noted "there is nothing in the record that questions the 'circumstantial probability of [the BTIIC's] trustworthiness.'" Id. at 12, (quoting State v. Matulewicz, supra, 101 N.J. at 29-30). The Court considered it "fair to take judicial notice of the case law that has described the substance of those test procedures that lend objective reliability to the BTIIC's." Ibid.
After Garthe was decided, the Superintendent of State Police amended the protocols contained in the Garthe appendix, effective October 1, 1997. The change implicated here involves the use of an atomizer rather than the coordinator's breath in testing the breathalyzer. The previous protocols provided:
To insure proper temperature of the simulator solution vapor sample (34 degrees Celsius, plus or minus 0.2 degrees Celsius), atomizers will not be used.
At each location, prior to performing the first simulated breath test, breath will be exhaled in a continuous, moderate flow through the simulator for approximately five seconds to eliminate head space air. Then the ...