On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. 21-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
On October 22, 2005, at approximately 7:12 p.m., defendant Donna Rainforth was driving a vehicle in the Borough of Bernardsville when she was stopped by the police and charged with driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50, making an illegal left turn in violation of N.J.S.A. 39:4-81, failure to use turn signal in violation of N.J.S.A. 39:4-126, and driving the wrong way on a one-way street in violation of N.J.S.A. 39:4-85.1. At the police station, defendant was administered breathalyzer tests, which indicated her blood alcohol content was .18 percent.
During defendant's municipal court trial on April 18, 2006, the parties stipulated to the admission of a certificate of analysis from Guth Laboratories for ampoule control number 00204 (ampoules with the same control number were used in defendant's breathalyzer tests). The parties also agreed the court could consider a three-page letter from Andrew J. Weber, Ph.D., defendant's expert. In his letter, Dr. Weber stated he tested five ampoules from control number 00204, and he concluded "the Guth laboratories reagent ampoules lot 00204 are out of specification and do not meet the criteria for use in breath alcohol determinations." Based on Dr. Weber's findings, defendant argued the breathalyzer test results were unreliable and inadmissible.
After the municipal court denied defendant's motion to exclude the breathalyzer test results, and denied her motion for a jury trial, she entered a conditional guilty plea to the DWI charge. The court sentenced defendant as a second offender and dismissed the remaining charges. Defendant's sentence was stayed pending appeal.
A trial de novo in the Law Division took place on December 18, 2006. Defendant's request for a jury trial was again denied, and defendant was convicted of DWI based on the results of her breathalyzer tests. Once again, defendant's sentence was stayed pending appeal to this court.
In her present appeal, defendant presents the following argument:
THIS COURT SHOULD EXCLUDE BREATHALYZER RESULTS HERE BECAUSE FIVE RANDOM AMPOULES FROM THE LOT USED IN BREATH TESTS ATTRIBUTED TO DEFENDANT WERE NOT WITHIN MANUFACTURER'S SPECIFICATIONS FOR CHEMICAL COMPOSITION AND, THEREFORE, UNACCEPTABLE FOR ANALYTICAL MEASUREMENTS AS REQUIRED IN STATE V. MAURE[.]
After reviewing the record and applicable law in light of the contentions advanced by defendant, we are convinced the findings by the Law Division judge are firmly supported by sufficient credible evidence, and his conclusions predicated on those findings are legally sound. We therefore affirm defendant's conviction, with only the following comments.
The criteria for admitting breathalyzer test results into evidence were established in State v. Johnson, 42 N.J. 146, 171 (1964), and later reaffirmed in Romano v. Kimmelman, 96 N.J. 66, 81-82 (1984). Admissibility requires proof of three conditions:
(1) the breathalyzer instrument was in proper working order; (2) the test was administered by a qualified operator; and (3) the test was administered in accordance with accepted standards. Romano, supra, 96 N.J. at 81. The State must prove each of these requirements by clear and convincing evidence, id. at 90.
In this case, the Law Division judge rejected defendant's claim that the breathalyzer test results were unreliable ...