On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4858.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Nugent and Newman.
On leave granted, the State appeals from the Law Division's May 14, 2010 order prohibiting the State from using defendant Dimko Miceski's Alcotest reading as evidence of a per se violation of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We reverse.
On April 19, 2009, defendant was arrested in Little Falls and charged with DWI. The police administered two breath tests using the Alcotest 7110 MK III-C (Alcotest). "The Alcotest is an embedded system, which utilizes two separate methods of measurement on each provided breath sample: electric chemical oxidation sensing (EC) and infrared sensing (IR)." State v. Rivera, 411 N.J. Super. 492, 494 (App. Div. 2010) (citing State v. Chun, 194 N.J. 54, 78, cert. denied, U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)). The EC and IR readings are printed on an Alcohol Influence Report (AIR). Chun, supra, 194 N.J. at 79.
If the results are within the acceptable tolerance, the AIR shows the [blood alcohol concentration (BAC)] values for each IR and EC reading for each of the tests to three decimal places. The AIR then reports the final BAC test result, which will be the lowest of the four acceptable readings, that is, readings within acceptable tolerance, which the device is programmed to truncate to two decimal places.... The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee. [Id. at 83.]
Defendant's first breath test resulted in an EC reading of 0.085% and an IR reading of 0.084%. His second breath test resulted in an EC reading of 0.084% and an IR reading of 0.084%. The final truncated BAC reading (final BAC) was 0.08%.
Defendant challenged the Alcotest results in a hearing conducted by the municipal court pursuant to N.J.R.E. 104. The sole witness was defendant's DWI expert, Gary Aramini. Aramini first discussed the calibration of the Alcotest, a subject explained in Chun:
Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the IR and EC mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated. [Chun, supra, 194 N.J. at 84 (emphasis added).]
"Tolerance is the range of any set of measurements that is accepted as being representative of a true reading." Id. at 110.
According to Aramini, when the Alcotest was calibrated on December 8, 2008, the control and linearity tests resulted in high readings. On test number one, a 0.10% simulator solution tested at 0.101%; on test number four, a 0.080% fuel cell tested at 0.081%. Aramini provided a technical explanation for the readings, but conceded they were within the acceptable range of tolerance.
When "a new solution change" was made on April 10, 2009,*fn1 testing indicated the 0.10% solution resulted in a 0.102% EC reading and a 0.103% IR reading. Aramini again conceded the readings were within the acceptable range of tolerance.
Lastly, Aramini testified there is 0.005% margin of error in any Alcotest AIR reading. He opined that the 0.005% margin of error should reduce defendant's final BAC reading, and he stated within a reasonable degree of scientific ...