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State of New Jersey v. Nicole M. Holland

December 20, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
NICOLE M. HOLLAND, DEFENDANT-RESPONDENT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH S. PIZZO, JR., DEFENDANT-APPELLANT.



On appeal from Final Decision of Superior Court, Law Division, Monmouth County, Municipal Appeal Nos. 09-069 and 09-078.

The opinion of the court was delivered by: Parrillo, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

April 5, 2011

Argued February 8, 2011 - Remanded Re-argued November 7, 2011 -

Before Judges Parrillo, Alvarez and Skillman.

The opinion of the court was delivered by PARRILLO, P.J.A.D.

We had granted leave to appeal in these two matters (Holland and Pizzo) to resolve a common issue: whether blood alcohol concentration (BAC) results derived from an Alcotest 7110 MKIII-C (Alcotest) breath-testing device are admissible against defendants in driving while intoxicated (DWI) prosecutions when the device has been calibrated with a Control Company, Inc. (Control Company) digital thermometer, instead of the Ertco-Hart digital thermometer referenced in State v. Chun, 194 N.J. 54, 89, 135, 152-53, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). State v. Holland, 422 N.J. Super. 185 (App. Div. 2011). We held that the "Ertco-Hart references in Chun are merely identifiers explaining the necessary firmware modifications and foundational documents required with respect to one [digital thermometer,]" id. at 196, and therefore "the use of another manufacturer's [digital thermometer] to calibrate the Alcotest does not alone compel exclusion of test results . . . ." Id. at 197.

Because "the State still bears the burden of demonstrating 'the proper working order' of the device[,]" id. at 197, and because questions were raised "[b]ased upon the foundational document itself," id. at 198, we remanded the consolidated cases "for a hearing before a single judge to be designated by the Assignment Judge of Monmouth County to establish the reliability of the Alcotest results and the validity of the Traceable Certificate of Calibration for Digital Thermometer at the time of the Alcotest's calibration in each case." Id. at 200. Specifically, the remand court was asked to determine "whether and how the differences in the [digital thermometers] had any impact at all" on the performance of the singular function required, namely to accurately read and report the temperatures of the simulator solutions during the Alcotest calibration process, id. at 198; whether the Control Company certificate suffers from any "facial irregularity" that would render the use of its digital thermometer improper, id. at 199; and whether the Alcotest calibrations at issue in both cases occurred during the period of time covered by the certificate for the digital thermometer used, id. at 199-200.

On remand, the Law Division conducted a three-day hearing during which it heard expert testimony adduced by the State on the comparability of the Control Company and Ertco-Hart digital thermometers and the validity of the Control Company's certificate establishing National Institute of Standards and Technology (NIST) traceability. Following that hearing, the judge, in a thorough, detailed and well-reasoned sixty-seven page written decision, concluded that the Control Company digital thermometer is comparable in all material respects to the Ertco-Hart digital thermometer previously used during the Alcotest calibration process; that the Control Company certificate is facially valid, establishes NIST traceability comparable to the Ertco-Hart certificate, and satisfies the requirements as a foundational document as required in Chun; and that the calibration of the Alcotests in the Holland and Pizzo matters were both completed within the two-year period of the thermometer's certification. These findings, in which we concur, find ample support in the facts and law.

The procedural and factual background of these matters was set forth in our earlier opinion and need not be repeated here save for a brief description of the calibration process, through which a breath test coordinator certifies that an Alcotest is in proper working condition. The calibration process involves the running of three sets of tests, which results in the printing of three reports: the Calibration Record, the Part I Control Test, and the Part II Linearity Tests. Prior to commencing these tests, the testing coordinator will prepare several alcohol solutions. The first is a 0.10% alcohol solution for the control test. The others are 0.04%, 0.08% and 0.16% alcohol solutions for the linearity tests. Each of these solutions must be heated to 34.0 degrees Celsius (plus or minus 0.2 degrees), the average range of human breath, which will create vapors that approximate human breath and provide for successful calibration. To do so, the coordinator will allow each solution to heat for approximately one hour and then ensure that they have reached the appropriate temperature using an external NIST-traceable*fn1 temperature probe.

As noted, a Control Company digital thermometer was utilized during the calibration of the separate Alcotests which yielded the BAC results at issue here. The Control Company digital thermometer was used to measure the temperature of the various simulator solutions as part of the control and linearity tests during the respective calibrations of the Alcotests in Neptune City (Holland) and Sea Girt (Pizzo). The Control Company digital thermometers are employed for the sole purpose of insuring that the temperature of the various simulator solutions is 34.0 degrees Celsius at the time the control and linearity test portions of the calibrations process are conducted. There is a permissible tolerance of 0.2 degrees Celsius. As such, the temperature of the various simulator solutions used during the various stages of the calibration process must be between 33.8 and 34.2 degrees Celsius. After confirming a simulator solution is at the correct temperature, the coordinator turns the digital thermometer off, removes it and returns it to its padded plastic container.

Once the coordinator has determined that the alcohol solutions have reached their appropriate temperatures, the coordinator will begin the actual calibration process, which, we emphasize, does not involve the Control Company probe. First, the coordinator will gain access to the Alcotest with the coordinator's black key temperature probe and conduct a control test with the 0.10% simulator solution. Upon completion of this process, the Calibration Record is printed. If the results of this test are not within the requisite range, the Alcotest will prompt the coordinator to repeat the control test with a new 0.10% simulator solution. If, on the other hand, the results are acceptable, the Part I Control Test certificate is printed. This document records the temperature of the 0.10% simulator solution as measured during the test - separate from the temperature recorded by the coordinator with the Control Company, or Ertco-Hart, digital thermometer during pre-calibration preparations. Chun, supra, 194 N.J. at 106 n.24.

The coordinator will then conduct two linearity tests on each of the three different simulator solutions of 0.04%, 0.08% and 0.16% by again using the coordinator's black key temperature probe and the Alcotest's internal thermometer. If the results of the linearity tests are not acceptable, the Alcotest is placed out of service. If, on the other hand, the results are acceptable, the Part II Linearity Tests certificate is printed. Also contained on this certificate are the temperatures of the three solutions as measured during the test - again separate from that measured by the Control Company digital thermometer during pre-calibration ...


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