Petition for Writ of Certiorari — Downie v. New Jersey
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69«1914 MAY
No. cy oe
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1989
ANDREW DOWNIE,
DANIEL MATTHEWS,
MARTIN MAROTTA,
CHARLES CARROLL; Petitioners,
vs
STATE OF NEW JERSEY; Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF NEW JERSEY
Counsel And Member of the
Bar of The United States
Supreme Court
Francis X. Moore
P.O. Box 830
211 Mapie Avenue
Red Bank, New Jersey 07701
(201) 747-6666
ween
QUESTIONS PRESENTED
1.DOES THE NEW JERSEY SUPREME COURT CREATE
A CONCLUSIVE OR UNREASONABLE PRESUMPTION
IN VIOLATION OF THE 14TH AMENDMENT REGARD-
ING THE RELIABILITY OF THE BREATHALYZER READ-
ING IN THE CONTEXT OF A PER SE STATUTE?
2.WHETHER N.J.S.A. 39:4-50 WITH THE WORD BREATH
ADDED BY THE NEW JERSEY SUPREME COURT IS
VAGUE IN VIOLATION OF THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT?
3.DOES N.J.S.A. 39:4-50 AS INTERPRETED BY THE N.J.
SUPREME COURT, WHERE ADMITTEDLY 2.3% OF THE
POPULACE IS TREATED DIFFERENTLY, THEN THE
REST OF THE POPULATION, BECAUSE OF THEIR
BODIES, VIOLATE THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AND FIFTH AMENDMENT?
4.DOES THE NEW JERSEY SUPREME COURT'S DETER-
MINATION IN IT’S MARCH 23, 1989 ORDER, VIOLATE
THE PETITIONER’S PROCEDURAI DUE PROCESS
AND SIXTH AMENDMENT CONSTITUTIONAL RIGHT
TO A HEARING AND TO DEFEND HIMSELF?
LIST OF PARTIES BEFORE
NEW JERSEY SUPREME COURT
John A. Kaye
Monmouth County Prosecutor
Monmouth County Courthouse
Freehold, NJ 07726
Robert Del Tufo
Attorney General
State of New Jersey
Hughes Justice Complex
Amicus Curiae
CN-112
Trenton, NJ 08625
John Wherry, Jr.
Counsel for National Association
of Criminal Defense Attorneys
Amicus Curiae
2425 Pennington Road
Pennington, NJ 08534
TABLE OF CONTENTS
gos 6 5 4 SLs GSTs GAS Oe US 1
Sipwamames Or tre CAGE... we es 2
1.
DOES THE NEW JERSEY SUPREME COURT
CREATE A CONCLUSIVE OR UNREASONABLE
PRESUMPTION IN VIOLATION OF THE 14TH
AMENDMENT REGARDING THE RELIABILITY OF THE
THE BREATHALYZER READING IN THE CONTEXT
WHETHER N.J.S.A. 39:4-50 WITH THE WORD
BREATH ADDED BY THE NEW JERSEY SUPREME
COURT IS VAGUE IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE —
a INE PS a 12
DOES N.J.S.A. 39:4-50 AS INTERPRETED BY THE
N.J. SUPREME COURT, WHERE ADMITTEDLY 2.3%
OF THE POPULACE IS TREATED DIFFERENTLY,
THEN THE REST OF THE POPULATION, BECAUSE
OF THEIR BODIES, VIOLATE THE EQUAL
ROTECTION CLAUSE OF THE FOURTEENTH
AND FIFTH AMENDMENT?.............. 14
DOES THE NEW JERSEY SUPREME COURT'S
DETERMINATION IN IT’S MARCH 23, 1989 ORDER,
VIOLATE THE PETITIONER’S PROCEDURAL DUE
PROCESS AND SIXTH AMENDMENT CONSTITU-
TIONAL RIGHT TO A HEARING AND TO
TABLE OF AUTHORITIES
United States Supreme Court:
Berger v California, 393 US 314, 21L
3 Ee 19
Castaneda v Partida, 430 US 482, 493,
St & Oe ee es ee ee ee. 16
Chambers v Mississippi, 410 US 284, 294,
95 L Ed 2d 207, 308 (1973)............... 18
Cox Broadcasting Corp. v Cohn, 420 US 469,
I Ce a ee 1
Federal Trade Commission v. National Lead
Company, et al., 352 US 419, 427; 1 L Ed
8 Pe A a 17
Flournoy v Weiner, 321 US 253, 263 (1944)....... 1
Francis v Franklin, 471 U.S. 307, 313,
314, 85 L Ed 2d 344, 353 (1985)....... 8, 9, 11, 15
Fuentes v Shevin, 407 US 67, 86; 32 L
Se one as eG 6 bo he 6 eee 19
Kolender v Lawson, 461 US 352, 357 (1983). ..... 13
Logan v Zimmerman Brush Co., 455 US 422,
437; 71.1 Gd Oe S66, S27O (0GSS) . we ee 18
Manley v Georgia, 279 US 1,73 LEd575()...... 11
iv
a
McMillan v Pennsylvania, 477 US 79,
ee ee Giles hie a Rs GS 9
McCleskey v Kemp, 481 US 279, 292, 95 L Ed
ee aa ee 6 a ee we 14
Prudential Ins. Co. v Cheek, 259 US
i TP > 1
Rock v Arkansas, 483 US , 97 L Ed 2d 37
SK ha a a Ss as 6 ae we eo 20, 21
Sandstrom v Montana, 442 US 510, 61 L Ed
eee or ee ee ee 8,9
South Dakota v Neville, 459 US 553,
ee Pek eee gerd 6 ky ss ee 5
Ulster County Court v Allen, 442 US
140, 156, 60 L Ed 2d 777, 791 (1978)........ 9, 10
United States v Gainey, et. al., 380
US 63, 66, 13 L Ed 2d 658, 662 (1965)...... 6, 7, 11
United States Appellate and District Court:
Defuentes v Duggen, (Case No 89-669
- CIV-ORL-19) - F Supp - (1989)............. 12
Frye v US, 293 F 1013, 1014 (1923)........... 12
Kay v US, 255 F 2d 476, 481 (1958)........... 11
United States v Downing, 753 F 2d
WE I oak evs vec we eee wavesen 12
7
United States v Warden of Clinton Prison,
28 F Supp 466, 463 (1938)... 2... 2 wee ee eee 11
New Jersey Caselaw:
State v. D’Agonstino, 203 NJ Super 69,
Ee ee er ar a ae eg 11
State v Downie, 229 NJ Super 207
fk ee ee 3, 10, 20
State v Tishio, 107 NJ 504 (1987). ............ 5
United States Code:
ee rr ra S
gS) 1
ee 1
New Jersey Statuted Annotated:
ke A” rr Ibid
PESGA. BOG. we ee eww ee 13
New Jersey Rules Of Evidence:
New Jersey Evidence Rule 13............... iS)
New Jersey Evidence Rule 14............... 9
New Jersey Evidence Rule 15............... 9
vi
NF
New Jersey Evidence Rule8............. 3, 17
New Jersey Rules of Criminal Practice:
Rule 3:13-1 . Se eee eee, 2
Disciplinary Rules:
DR 7-103(B), Supp June, 1978. ............. 21
Law Review Articles:
Giannelli, “The Admissibility of Novel
Scientific Evidence: Frye v United States
A Half Century Later," 80 Colum L
Se ere a dle ad aug 5 -4-e ee & a ws Oe 12
vii
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1989
ANDREW DOWNIE,
DANIEL MATTHEWS,
MARTIN MAROTTA,
CHARLES CARROLL; Petitioners,
vs
STATE OF NEW JERSEY; Respondent.
JURISDICTIONAL STATEMENT
Petitioners, Downie, Matthews, Marotta and Carroll , appeal from
the final judgment of the Supreme Court of New Jersey, entered on
March 23, 1989 denying the petitioners/appellants their right to the
hearing they requested, and becoming final on January 31, 1990
amending N.J.S.A. 39:4-50 by judicial fiat.
Petitioner asserts that the interpretation of petitioners right to
present exculpatory evidence, and the evidence already presented
violate the fourteenth and sixth amendments to the federal consti-
tution. Further, petitioner asserts that the judicial fiat changing the
statute creates a vague statute in violation of the fourteenth amend-
ment. Finally, the evidences already presented and the interpretation
of that evidence in the context of the statute violate the equal
protection clause of the fourteenth and fifth amendments of the
constitution. Petitioner raises three federal issues not directly raised
below.
1. Hereinafter noted as petitioners.
viii
JURISDICTION
The judgment of the New Jersey Supreme Court deny-
ing the defendant a full and fair hearing was ordered on
March 23, 1989. The judicial order creating new legislation
was ordered on January 31, 1990. The notice of appeal
to this Court was filed within 90 days of the final judgment
below.
The jurisdiction of this Court is invoked under 28 USC
Sec 1257(2). Although, it has been restated to address
this Court, the forth issue was substantially presented
below upon a grant of an interlocutory certification.
Petitioners believe that 28 USC Sec 2403(b) may apply
and will comply with same.
The apparent granting of petitioners’ request for a
hearing does not destroy this Court’s jurisdiction. Indeed,
petitioners challenged the New Jersey Supreme Court to
allow a full and fair hearing; not limited to just those issues
the Supreme Court picked out of the air without adequate
consultation with petitioners.
Questions One, two and three presented, although not
raised directly below, and thus nonappealable, are prop-
erly subject to this Court’s power to “take jurisdiction over
any aspect of this case which would otherwise fall solely
within [it’s] certiorari jurisdiction." Cox Broadcasting Corp.
v Cohn, 420 US 469, 487 n. 14 (1975). See also Flournoy
v Weiner, 321 US 253, 263 (1944) and Prudential Ins. Co.
v Cheek, 259 US 530, 547 (1922).
Although this appeal is_ interlocutory in nature,
petitioners assert that the decision of the New Jersey
Supreme Court is final. The issues presented by
_petitioners need to be determined before trial to allow a
fair trial.
The issues presented are questions of first impression
before this Court. The petitioners assert that the questions
1
presented have nationwide significance. The petitioners
assert that the record below provides the most compre-
hensive review, by the foremost experts in the field of
breathalyzer evidence, ever put before a Court in this
nation. Finally, the petitioners assert that because the
federal government mandates that States must create
legislation allowing courts to find people guilty based on
breathalyzer readings alone and the inability of this
machine to create reliable results, cries out for this Court
to grant Certiorari.
The petitioners will rely upon the Fifth, Sixth, and
Fourteenth Amendments to the Constitution of the United
States.1
STATEMENT OF THE CASE
The petitioners/defendants have each been charged
with a violation of N.J.S.A. 39:4-50. Each of the petitioners
are represented by the firm of Francis X. Moore, P.A.
On March 30, 1988 petitioners moved before the Honor-
able Donald Pappa, J.M.C., at the trial court level, for an
order consolidating their respective cases into one court,
for the purpose of a pretrial hearing on the breathalyzer.
MT30-217 The petitioners were granted their request for
pretrial conference pursuant to Rule 3:13-1 by the trial
court.
Briefs were ordered regarding all argurnents to be
presented, and the burdens proposed on each issue.
On May 20, 1988 the trial court signed orders con-
solidating the cases, and setting June 25, 1988 as the
1. For the full text of the provisions relied upon by the petitioner see
PA-210.
2. MT stands for the Municipal transcript dated March 30, 1988, at
appendix PA-37 to PA-79.
date for the preliminary conference. Pretrial briefs were
to be filed no later then June 17, 1988. 3
On an unknown date, the County Assistant Prosecutor,
Mark Stalford approached the Monmouth County Assign-
ment Judge, Alvin Milberg regarding an appeal of the trial
court’s March ‘30, 1988 order. The Assistant Prosecutor
inquired regarding what steps the State must take to
effect such an appeal.4
On June 10, 1988, before the pretrial briefs could be
filed by the petitioners with the trial court, the County
Prosecutor filed leave to appeal on an interlocutory basis,
nunc pro tunc. The State’s motion to file out of time was
granted by Judge Milberg. After a hearing, with all parties
present, Judge Milberg ordered that the Municipal trial
court’s consolidation be reversed.
Finally, Judge Milberg ordered that the petitioners
should be allowed to have their R. 8 hearing, and that the
petitioners were allowed to present their issues to the trial
court for determination.
The State sought timely interlocutory leave from the
New Jersey Superior Court, Appellate Division.
The Appellate Court granted leave on an emergent
basis. The Appellate Court decision is found at State v
Downie, 229 NJ Super 207 (App. Div. 1988), at appendix
PA-28. ;
Petitioners then sought timely leave before the
Supreme Court of New Jersey. Certification was granted.
Petitioners assert that they followed the proper proce-
dures in attempting to present their issues before the trial
court. And that the case should be remanded to allow the
trial court to determine the issues and the appropriate
burdens. At no time are petitioners ever questioned by
the New Jersey Supreme Court regarding these issues.
3. See appendix at PA-111 to PA-115.
4. See Appendix PA-38.
3
The New Jersey Supreme Court ordered the case be
remanded for a fact finding hearing before the Superior
Court, Law Division. The New Jersey Supreme Court,
without consulting petitioners, ordered which issues
should be Cotermined and were allowed to be presented
on remand.° Petitioners were further restrained by the
remand court regarding the boundaries of their questions.
The following experts testified on remand in the order
in which they appeared chronologically. Doctor Robert F.
Borkenstein; Patrick Harding; Doctor Allan W. Jones;
Doctor James P. Payne; Doctor Gerald Simpson; Doctor
Michael P. Hlastala; Nizar K. Shajani; Doctor Kurt M..
Dubowski; Douglas M. Lucas; Rodney G. Gullberg.°
Petitioners assert that the remand hearing provides this
Court with the most extensive record about the
breathalyzer ever put before any Court in this country.
After remand, the case was set for oral argument before
the New Jersey Supreme Court. No briefs were requested
regarding the issues presented by remand. Petitioners
were never allowed the opportunity to argue within the
facts created by remand, regarding what issues be con-
sidered by the Supreme Court.
At oral argument petitioners were not questioned about
nor was the legislative intent ever discussed by the New
Jersey Supreme Court. Throughout the proceedings
below petitioners relied upon the clear language con-
tained in N.J.S.A. 39:4-50.
Had briefs been allowed or requested, the petitioners
would have raised the issues brought before this Court,
below. The individuals were then remanded back to the
Municipal Court for trial.
5. March 23, 1989 order attached at appendix PA-105 to PA-107.
6. See appendix PA-116 to PA-209.
4
THE QUESTIONS PRESENTED ARE SUBSTANTIAL
This Court “has repeatedly lamented the tragedy" of the
“carnage caused by drunk drivers." South Dakota v
Neville, 459 US 553, 558 (1983). In attempting to facilitate,
by whatever ‘means, easy drunk driving convictions
through strained interpretation of legislative intent, the
New Jersey Supreme Court has overreacted to this
Court’s pleas. See also State v Tishio, 107 NJ 504 (1987).
The New Jersey Supreme Court has again attempted
to preclude the petitioners from presenting exculpatory
evidence on their own behalf, and by adding a word to
N.J.S.A. 39:4-50 has effectively, by judicial fiat, legislated
a new statute. Justice Stein stated in the dissent that the
New Jersey Supreme Court,
.. IS afflicted with a severe case of institutionalized
amnesia. It has either forgotten, or has unaccountably
ignored, the most basic distinction between the legis-
lative and judicial branches of government.
Underlying this litigation was the premise, acknowl-
edged by all parties and the New Jersey Supreme Court,
that New Jersey’s drunk-driving statute is based on blood
alcohol content. State v Downie, ef. a/., 117 NJ 450 (1990),
at PA-1.
In response to federal legislation making the receipt of
certain federal highway funds contingent upon the enact-
ment of laws that attach criminal liability to persons with
blood alcohol levels in excess of .10% many States
legislated directly against driving with the proscribed
alcohol level. See 23 USC Sec. 408(e)(1)(C).
Throughout the proceedings below, petitioners relied
upon the apparently clear language contained in N.J.S.A.
39:4-50.
1.D0ES THE NEW JERSEY SUPREME COURT
CREATE A CONCLUSIVE OR UNREASONABLE PRE-
SUMPTION IN VIOLATION OF THE 14TH AMEND-
MENT REGARDING THE RELIABILITY OF THE
BREATHALYZER READING IN THE CONTEXT OF A
PER SE STATUTE?
Yes. Any time that either a court or the legislature
creates a presumption within the confines of a criminal
Statute the State has the burden of proving the
reasonableness of the presumption. United States v
Gainey, et. al., 380 US 63, 66, 13 L Ed 2d 658, 662 (1965).
. the constitutionality of the legislation depends
upon the rationality of the connection “between the
facts proved and the ultimate fact presumed." Id.
This Court created three different types of presumptions
which must be considered under the due process stan-
dards of the 14th Amendment; permissive, mandatory
and conclusive.
Petitioners assert that the New Jersey Supreme Court
has created a conclusive presumption that breathalyzer
results are reliable and will be the same for each person.
Petitioners assert if this Court concludes the presumption
7. The Attorney General, as Amicus below, argued that petitioners
were not entitled to a remand hearing because it was possible to
interpret the Statute. The New Jersey Supreme Court apparently did
not agree with the Attorney General's position, when the Court
ordered that there be a remand.
created by the New Jersey Supreme Court is only permis-
sive, the facts provided by the remand hearing mandates
that reasonable minds shift the burden of proof to peti-
tioners. Such a shifting of the burden creates a situation
where the State is relieved of its burden to prove guilt
beyond a reasonable doubt, and violates due process.
The State of New Jersey relies upon the breathalyzer
as the means to prove a defendant guilty of violating the
per se section of N.J.S.A. 39:4-50. The breathalyzer used
depends upon a conversion ratio of 2100 to 1,”
The New Jersey Supreme Court would have this Court
believe that this overestimation only occurs in 2.3% of the
population. However, the New Jersey Supreme Court
conveniently forgets the proofs show that, any one
person, at any time in that persons life, may be part of
that 2.3 percent, and thus be subject to conviction,
automatically, and improperly.
It is impossible to prove just who is less than 2100 to
1 and whether this person is less than 2100 to 1 at the
time the officer requests the defendant to submit to the
breathalyzer.
Petitioners rely upon Justice Blacks definition of a
presumption for definitional purposes. Justice Black, in
his dissent in United States v Gainey, supra. at 380 US
78-stated that, )
In its simplest form a presumption is an inference
permitted or required by law of the existence of one
fact, which is unknown or which cannot be proved,
from another fact which has been proved. The fact
8. The breathalyzer makes use of this same ratio whether the New
Jersey Supreme Court creates a new statute by adding the word
breath or whether the obvious interpretation of the statute is used.
Thus, even in a breath statute some people are overestimated as
against the norm of 2100 to 1. See Point 3 below.
7
-
presumed may be based on a very strong probability,
@ weak supposition or an arbitrary assumption. The
burden on the party seeking to prove the fact may
be slight, as in a civil suit, or very heavy - proof
beyond a reasonable doubt - as in a criminal prose-
Cution.... The validity of each presumption must be
determined in the light of the particular conse-
quences that flow from its use. When matters of
trifling moment are involved, presumptions may be
more freely accepted, but when consequences of
vital importance to litigants and to the administration
of justice are at stake, a more careful scrutiny is
necessary.
In Francis v Franklin, 471 US 307, 313, 314, 85 L Ed
2d 344, 353 (1985) this Court held that the first threshold
analysis is to determine the nature of the presumption
we are dealing with. These petitioners request this Court
determine whether the presumption created by the New
Jersey Supreme Court is permissive or mandatory in
nature in light of the facts created on remand. And if this
Court concludes the presumption created by New Jersey
Supreme Court is mandatory, is it conclusive? A man-
datory presumption is more likely to invoke the protec-
tions of the 14th Amendment, particularly if this man-
datory presumption is not subject to rebuttal, as in the
present case. However, even a permissive presumption
may be improper if "... the suggested conclusion is not
one that reason and common sense justify in light of the
proven facts before the jury (or judge)." Id. at 314, 315.
The test for determining what constitutes a mandatory
presumption was created in Sandstrom v Montana, 442
US 510, 61 L Ed 2d 39 (1979). This Court indicated that
the test for a jury instruction is what “might reasonably
have been understood by the jury (or trial court) as
creating a mandatory rebuttable presumption."
8
In the present case, the New Jersey Supreme Court
orders that trial courts must find that a breathalyzer
reading is an accurate and precise reading in terms of
any defendant, despite the State’s failure or inability to
prove facts which indicate such a preciseness, because
of each persons body’s metabolism. 9
The New Jersey Supreme Court fails to follow its’ own
rules of evidence. For if this reading is offered and the
reading is above a .10 the defendant is guilty, end of
story; even if reasonable minds could differ regarding the
interpretation of just who is less then 2100 to 1, or whether
the State could ever prove, beyond a reasonable doubt-
that any persons reading was actually 10."
It is obvious that the New Jersey Supreme Court seeks
by its ruling to relieve the State of the burden to prove the
defendant’s breath or blood reading beyond a reasonable
doubt. Petitioners assert that the New Jersey Supreme
Court’s actions curtail the factfinders freedom to assess
the evidence independently. Ulster County Court v Allen,
442 US 140, 156, 60 L Ed 2d 777, 791 (1979).
In criminal cases,
9. See also New Jersey Evidence Rules 13, 14, and 15.
10. See appendix at PA-142, PA-149, PA-152, and PA-176 for dis-
cussion of expert’s testimony in the within remand, wherein most
experts agreed that it is impossible to ever prove that a breath test
of .10 is proof beyond a reasonable doubt of an accurate precise
reading of .10. Both the inventer of the breathalyzer, Doctor
Borkenstein and Doctor Dubowski believe that it is improper to use
the breathalzyer in the context of a per se statute.
See also McMillan v Pennsylvania, 477 US 79, 86, 91 L Ed 2d
(1986) where this Court held that the reasonable doubt standard
applies to facts not formally identified as elements of the offense
charged.
... the ultimate test of any device’s constitutional
validity in a given case remains constant: the device
must not undermine the factfinder’s responsibility at
trial, based on evidence adduced by the State, to find
the ultimate facts beyond a reasonabie doubt. ld.
Petitioners assert that the trier of fact is forced, by the
New Jersey Supreme Court’s order, to accept the falla-
cious inference ordered by that Court as acceptable.
Ulster County Court v. Allen, supra. at 159. The New
Jersey Supreme Court further ordered that neither peti-
tioners nor anyone else may seek to rebut the presump-
tion created. Thus, this Court not only can, but must find
that this is a conclusive presumption and thus an irrebut-
table presumption. This irrebuttable presumption relieves
the State of its burden to prove beyond a reasonable
doubt the violation of the per se section of N.J.S.A.
39:4-50. Thus, the presumption created within the con-
fines of N.J.S.A. 39:4-50 creates a violation of the 14th
amendment and is therefore improper. Sandstrom v
Montana, supra. 442 US at 518. See also Francis v.
Franklin, supra. 471 US at 314 n. 2.
The respondent will no doubt argue that the presump-
tion created by the New Jersey Supreme Court is merely
permissive. Given the framework of permissive presump-
tions, petitioners assert that if this Court believes only a
permissive presumption is created, the presumption cre-
ated is arbitrary and not reasonable within the framework
of the scientific evidence presented and the per se nature
of N.J.S.A. 39:4-50.
11. The absurdness of this position must be looked at within the
framework of the knowledge that the petitioner had to go before the
Supreme Court of the State of New Jersey before he was allowed to
present any evidence concerning the reliability of breathalyzer. See
State v Downie, 229 NJ Super 207 (App. Div. 1988), at PA-28.
10
The test under the 14th amendment for the reasonable-
ness of a permissive presumption is the rationality of the
connection between the facts proved and the fact pre-
sumed. United States v Gainey, et al., supra. 380 US at
66. Or the suggested conclusion must be one that reason
and common sense justify in light of the proven facts.
Francis v. Franklin, supra. 471 US at 314, 315. Do the facts
as suggested in the remand, that 2.3% of the population,
where every person may become part of that 2.3%, at any
time in their life, rationally allow this Court to conclude
that the trial court may convict the petitioners if his
reading comes out above .10, without any other proofs?
Also the proofs, as accepted by the New Jersey Supreme
Court, suggest this 2.3% may be overestimated by as
much as 30% with the norm of 2100 to 1.'2
Petitioners assert this presumption is unreasonable for
two reasons: The presumption created as to reliability of
the reading is not based on extensive investigation by the
legislature. See also Kay v United States, 255 F 2d 476,
481 (1958). It is obvious that the legislature was never
- advised regarding the affect of the methodology of the
breathalyzer. Moreover, petitioners assert the sole reason
for the enactment of the per se section of N.J.S.A. 39:4-50
was to obtain highway funds from the federal govern-
ment. See State v. D’Agonstino, 203 NJ Super 69, 75 (L.
Div. 1984). This Court stated in Manley v Georgia, 279
US 1, 73 L Ed 575 ( ) that, “[a] mere legislative fiat may
not take the place of fact in the determination of issues
involving life, liberty and property." United States v
Warden of Clinton Prison, 29 F Supp 486, 493 (1939).
12. It must be noted, that the various research reported in the within
remand, suggests that this variable may be much lower, with one
report indicating as low as 1100 to 1, which will cause an overestima-
tion of 100%.
11
Additionally, the reasonableness of this assumption,
that every person is at least 2100 to 1, must be considered
in the context of the per se statute the assumption
provides evidence for. Particularly, where, as here, the
breathalyzer reading, with the 2100 to 1 ratio, in the
context of a per se statute, has not gained “such standing
and scientific recognition” by the scientific community as
would justify the courts in admitting the evidence. Frye v
United States, 293 F. 1013, 1014 (1923)! Or allowing
such evidence to become a permissive presumption. See
also Defuentes v Duggen (Case No 89-669-CIV-ORL-19)
F Supp - (1989) which recently declared a similar per se
Statute in Florida unconstitutional on its face based on the
conclusive nature of the evidence.
The issue of reasonableness becomes one of whether
or not the scientific community has generally accepted
the use of a breathalyzer as per se evidence? The answer
must be no! Therefore, the permissive influence is unrea-
sonable. Thus, petitioners asserts such a permissive pre-
sumption violates due process.
2.WHETHER N.J.S.A. 39:4-50, WITH THE WORD
BREATH ADDED BY THE NEW JERSEY SUPREME
COURT, IS VAGUE IN VIOLATION OF THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMEND-
MENT? .
Yes. The New Jersey Supreme Court has once again
imposed, by judicial fiat, a completely new statute for the
13. The petitioner asserts that the Frye test is no longer the best test
for consideration of the affect of scientific evidence. See United
States v Downing, 753 F. 2d. 1224 (1985) which considers the Frye
test as part of an overall approach. See Giannelli, “The Admissibility
of Novel Scientific Evidence: Frye v. United States A Half Century
Later," 80 Colum. L. Rev. 1197 (1980).
12
motoring public. The New Jersey Supreme Court has
transformed narrow and precise statutory language into
a vague statute.
The void for vagueness doctrine “requires that a penal
statute define the criminal offense with sufficient definite-
ness that ordinary people understand what conduct is
prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement." Kolender v
Lawson, 461 US 352, 357 (1983).
A fair reading of N.J.S.A. 39:4-50 or the legislative notes
that follow, does not indicate to any reasonable person
that his/her breath may become convicting evidence. The
word breath simply does not appear in terms of what
constitutes guilt. 14
The New Jersey Supreme Court adds the word breath,
because the Court realized, as Judge McGann stated in
his conclusions of fact that, “the 2100 to 1 ratio is
worthless for forensic purposes." (See PA-136). The New
Jersey Supreme Court somehow believes that by adding
the word breath to the statute, despite no indication by
the legislature of its’ intent to find people guilty by their
breath alcohol level, the New Jersey Supreme Court can
rationalize Judge McGann’s conclusions. 15
The simple fact remains that, ordinary citizens must
be left in a quandary regarding what constitutes improper
conduct under N.J.S.A. 39:4-50. Therefore, as applied, the
Statute is vague and violates the fourteenth amendment.
14. See PA-123 and N.J.S.A. 39:4-50. See also N.J.S.A. 39:4-50.1.
15. What the N.J. Supreme Court fails to realize, but will no doubt
preciude the petitioner/defendant from proving, is that the
breathalyzer machine makes the same improper calculation whether
you call it breath or blood. This calculation must still be considered
“worthless for forensic purposes.“
The machine has not changed simply because the New Jersey
Supreme Court wishes the reality of the overestimation to go away.
13
3.DOES N.J.S.A. 39:4-50 AS INTERPRETED BY THE
NEW JERSEY SUPREME COURT, WHERE
ADMITTEDLY 2.3% OF THE POPULACE IS TREATED
DIFFERENTLY, THEN THE REST OF THE POPULA-
TION, BECAUSE OF THEIR BODIES, VIOLATE THE
EQUAL PROTECTION CLAUSE OF THE FOUR-
TEENTH AND FIFTH AMENDMENT?
Yes. In the present case the New Jersey Supreme Court
has effectively ruled that trial courts may convict innocent
p2ople, but so what, the breathalyzer benefits most
people who may be guilty.
In the remand hearing the factfinder concluded that the
2100 to 1 ratio was “worthless for forensic purposes" when
looking at the entire population. The evidence presented
by both sides indicates that the 2100 to 1 ratio over-
estimates one’s true reading during the absorptive phase
of the alcohol assimilation. A significant percentage of the
population is being penalized by the same machine that
is giving another segment of the population an advantage.
The discrimination is based solely on ones individual
body physiology at the exact time one is forced to submit
to a breathalyzer.
In McCleskey v Kemp, 481 US 279, 292, 95 L Ed 2d
262, 278 (1987) this Court held it is the petitioners’/
defendants’ burden to prove “the existence of purposeful
discrimination” and that the discrimination “had a dis-
Ccriminatory effect" on him.
The statistical data must be viewed in the context of
this challenge. In the present case the New Jersey
Supreme Court alleges that only 2.3% of the population
is seriously overestimated. However, the New Jersey
Supreme Court discounts Doctor Simpson's testimony
because Doctor Simpson did not do any independent
research, but rather relied solely and primarily upon the
14
foremost expert in the field, Doctor Dubowski. However,
in the next breath the New Jersey Supreme Court con-
cludes that Doctor Dubowski’s research is the most reli-
able. 16
Petitioners assert that Doctor Simpson is the only
expert preserited who offers a_ statistical, scientific
method, of the error present from the use of the
breathalyzer. All other researchers only. rely upon the
actual subjects tested. Doctor Simpson attempts to apply
this alleged average of 2100 to 1 to the population as a
whole!”The State of New Jersey presented no rebuttal
evidence of such error analysis.
Doctor Simpson’s conclusions reflect a deviation much
greater then the New Jersey Supreme Court would like
us to believe.
Petitioners assert that, even with the 2.3 percent of the
population being treated differently than the other 97.7
percent, the State is invidiously discriminating against
that 2.3 percent. And this figure may be as high as 15 to
70 percent of the population, according to Doctor
Simpson.
Petitioners have proved “purposeful discrimination."
The State intends to offer these breath results against the
petitioners at trial. Therefore, the State knows the prob-
lems and intends on making use of the discriminatory
evidence.
16. See PA-8 where the New Jersey Supreme Court relies upon
Doctor Dubowski as the “most impressive expert.”
The petitioners find this assertion to be a little absurd, since Doctor
Simpson testified in the remand that his research relied upon “at least
100 research papers.”
17. See PA-206 to PA-208 for the method which Doctor Simpson
used in his error analysis.
15
However, petitioners admit there is a problem with the
second part of this Court’s test, because it is impossible
to apply the discrimination specifically to petitioners. But,
the State cannot prove that petitioners were not less than
2100 to 1 during the breath test. Petitioners rely solely
upon the concept of due process and fundamental fair-
ness in the context of this per se statute. Petitioners
assert that this Court must determine this issue within the
context of a per se application of the Statute. Thus, once
a prima facia case of purposeful discrimination is made
out, the burden should shift to the State of New Jersey
to prove that petitioners are not discriminated against.
Petitioners assert that the analysis that this Court
employ, in this case, should be akin to the analysis
employed in grand jury proceedings. See Castaneda v
Partida, 430 US 482, 493, 51 L Ed 2d 498, 509 (1977).
Thus, once petitioners establish that petitioners’ identifi-
able group is recognizable, and petitioners’ group,
through statistical data, is treated differently, there is a
presumption created of discrimination. And the burden
shifts to the State.
The State must prove that petitioners are not mistreated
compared with the rest of the population. If the State fails,
then petitioners assert that the application of the per se
statute must also fail.
Petitioners assert that the State of New Jersey, based
on the remand, cannot prove that petitioners were prop-
erly treated. Therefore, the use of discriminatory breath
tests in the context of a per se statute, using the method-
ology presently employed, causes N.J.S.A. 39:4-50 to
violate the equal protection clause of the fourteenth and
fifth amendments.
16
ee
4.DOES THE NEW JERSEY SUPREME COURT’S
DETERMINATION IN IT’S MARCH 23, 1989 ORDER,
VIOLATE THE PETITIONERS’ PROCEDURAL DUE
PROCESS AND SIXTH AMENDMENT CONSTITU-
TIONAL RIGHT TO A HEARING AND TO DEFEND
HIMSELF?
Yes. In the present case, the New Jersey Supreme
Court granted the petitioners their rights to an adversarial
inquiry regarding the breathalyzer. However, the Supreme
Court failed to provide the defendants an opportunity,
pursuant to R. 8, to provide the Hearing Court with ail the
issues which should be determined by the hearing
ordered. '8
Procedural Due Process includes not only protection
for the State but must also protect the defendant and his
right to bring all issues before the Court, which may
present a defense to the charges alleged. "It goes without
saying that the requirements of a fair hearing include
notice of the claims of the opposing party and an oppor-
tunity to meet them." Federal Trade Commission v Na-
tional Lead Company, et al., 352 US 419, 427; 1 L Ed 2d
438, 444 (1957). In the present case, the New Jersey
Supreme Court mandated certain issues be heard on
remand. Unfortunately, the Court by its actions, precludes
the defendant from bringing forward all issues which were
intended from the start.
The Supreme Court was never properly informed pur-
suant to a proper pretrial hearing, as provided in the Rules
of Court, regarding the issues which petitioners intended
to present. This occurred because the State interfered,
before the issues to be briefed were due.
The State sought to prevent the adversarial inquiry
18. See March 23, 1989 order at PA-106.
17
before the trial court’s determination of the issues. It was
improper for the New Jersey Supreme Court to reach out
and determine which issues the defendant may present.
The Court never inquired regarding the specific issues the
netitioners sought to produce. The New Jersey Supreme
Court’s ruling enables only the Supreme Court of New
Jersey to determine how the defendant should present a
defense!9This conclusion violates the defendant’s due
process and sixth amendment rights to a fair hearing.
“What the Fourteenth Amendment does require, how-
ever, ‘is an opportunity . . . granted at a meaningful time
and in a meaningful manner,’ (citations omitted) ‘for (a)
hearing appropriate to the nature of the case.’ Logan v
Zimmerman Brush Co., 455 US 422, 437; 71 L Ed 2d
265, 279 (1982). "The right of the accused in a criminal
trial to due process is, in essence, the right to a fair
opportunity to defend against the State’s accusations."
Chambers v Mississippi, 410 US 284, 294, 35 L Ed 2d
297, 308 (1973).
This Court broadly defines due process requirements.
In the present case the defendant faces the State’s threat
to take money in the form of fines, costs, and surcharges,
and to take away the privilege to drive, and the threat of
taking one’s liberty.
The Fourteenth Amendment draws no bright lines
around three-day, 10-day, or 50-day deprivations of
property. Any significant taking of property by the
State is within the purview of the Due Process Clause.
While the length and consequent severity of a
deprivation may be another factor to weigh in
determining the appropriate form of hearing, it is not
decisive of the basic right to a prior hearing of some
19. See point 1. above.
18
kind. Fuentes v Shevin, 407 US 67, 86; 32 L Ed 2d
556, 573 (1972).
The requirement of the right to be heard in a meaningful
manner raises no impenetrable barrier in the State of New
Jersey’s constant drive to facilitate easy convictions of
citizens charged with violating N.J.S.A. 39:4-50. This Court
applies a balancing test regarding the right to be heard
in a civil context. Under this test the nature of the case
and the importance of the interests involved is one consid-
eration which must be balanced against valid govern-
mental interests. Fuentes v Shevin, supra. 407 US at 571.
The nature of the present case is a criminal proceeding.
The importance of the issue involved is enormous be-
cause proofs from the breathalyzer can constitute the sole
means of convicting a citizen. Serious questions surround
the applicability of the breath test result to any particular
person. As well as concerns with the scientific com-
munities Condemnation of the use of a breathalyzer in a
per se statute.
Also, there are serious questions surrounding the reli-
ability of the machinery employed. Considering all of the
above together, a valid question arises regarding the
proofs the State must present, for a violation of the per
se section of N.J.S.A. 39:4-50. Finally, one must consider
the importance given to any breath test reading after
weighing the above.
This right to inquire is not absolute, “[b]ut its denial or
significant diminution calls into question the ultimate
"integrity of the fact-finding process” and requires that the
competing interest be closely examined. Berger v
California, 393 US 314, 21 L Ed 2d 508 (1969).
In the present case, the Appellate Court ordered an
absolute exclusion of evidence regarding the admissibility
and reliability of breath test results. State v Downie, et.
al., Supra. 229 NJ Super at 213 at PA-28.
19
In Rock v Arkansas, 483 US_, 97 L Ed 2d 37 (1987)
this Court discussed the Fourteenth Amendment in the
context of a per se prohibition of admission of evidence.
In Rock, the defendant could not remember certain
aspects of her activities related to her Manslaughter
charge. The defendant placed herself under hypnosis in
order to help her recall her activities.
Under hypnosis the defendant recalled that she did not
place her finger on the trigger of the gun but rather the
gun went off accidently after her husband grabbed her
arm. Based on these new facts the gun was tested. It was
determined that the gun’s trigger mechanism was defec-
tive. The gun was prone to fire without pulling the trigger,
if the gun was dropped or hit. Rock v Arkansas, 483 US
at ,97LEd 2d at 37. ’ :
The defendant was not allowed to testify about her new ;
memories in the trial court. The defendant could only
testify about her prehypnotic memories. The trial court's
ruling was based on the State’s per se exclusion of
hypnotic evidence. )
This Court framed the issue in this context, “[w]hether
a criminal defendant's right to testify may be restricted
by a state rule that excludes her post-hypnotic testi-
mony?"
‘In the present case, the issue may be framed, whether
the New Jersey Supreme Court may impose a per se rule
excluding relevant, material exculpatory evidence from
being heard? This Court held that per se exclusion of
evidence is detrimental to the defendant and violates due
process. Rock v Arkansas, 483 US at ,97LEd 2d at 49.
eee ee
(hee 4 te eae
Na li ENA A mah are de remain < nett
In footnote 12 this Court stated,
The rule [per se exclusion of evidence] leaves a trial
judge no discretion to admit this testimony, even if
the judge is persuaded of its reliability by testimony
at a pretrial hearing. Rock v Arkansas, 483 US at,
97 L Ed 2d at 49.
The logical question is what is the New Jersey Supreme
Court’s fear? After all, a full pretrial hearing serves the
interests of both parties, not just the defendants/
petitioners. A prosecutor’s job is to see that justice is
done not merely to facilitate the convictions of the State’s
citizens. See PA-49. See also Disciplinary Rule 7-103(B),
Supp June, 1978.
21
CONCLUSION
For the above reasons, petitioners assert that this is a
case of first impression before this Court. Petitioners
assert the record created by the remand in the within
case presents facts never before assembled in one case.
Moreover, based on the facts and the per se nature of the
machine and evidence involved, (which may work to
remove the factfinder from the process), this Court should
determine the serious issues raised and ignored by the
New Jersey Supreme Court.
Res lly Submitted,
rancis X. Moore
P.O. Box 830
211 Maple Avenue
Red Bank, NJ 07701
(201) 747-6666
Michael R. Speck
On the brief.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1989
ANDREW DOWNIE,
DANIEL MATTHEWS,
MARTIN MAROTTA,
CHARLES CARROLL; Petitioners,
vs
STATE OF NEW JERSEY; Respondent.
PETITIONER’S APPENDIX
TABLE OF APPENDICES
State v Downie, ef. a/., 117 NJ 450 (1990)............
State v Downie, et. al., 229 NJ Super
er a ee a eer, Vo
State v Downie, et. al., Law Division Transcript
ee Ek re i © ie eek ol es cee
State v Downie, Municipal Court Transcript
Ee
January 31, 1990 New Jersey Supreme Court Order
Denying presentation of Supplemental Evidence,
and Supplemental Oral Argument................
March 20, 1989 New Jersey Supreme Court Order, -
Granting a remand for Determination of Evidence.......
January 26, 1989 New Jersey Appellate Court
Order granting the Right of the State of
Pee GY I wk ee tt tee
July 1, 1888 New Jersey Law Division Order
Granting the State of New Jersey’s request
for a Nunc Pro Tunc Interlocutory Appeal............
May 20, 1988 New Jersey Municipal Court
Order Setting a Preliminary Pretrial
Hearing date of June 25, 1988..................
May 20, 1988 New Jersey Municipal Court
Order Setting a Date of June 17, 1988
for Pretrial Briefs to be filed....................
State v Downie, et. al., Temporary Remand,
Pe ae a eile ke eat a werd db uw 4 48 oO
Constitutional Amendments 5th, 6th & 14th. . 2... .00020.
(se aaPDS heed TF intrest 2 leet ate LID
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v. ANDREW DOWNIE, DANIEL MATTHEWS, MAR-
TIN J. MAROTTA, AND CHARLES F. CARROLL,
DEFENDANTS-APPELLANTS.
Argued February 27, 1989 --- Remanded
March 23, 1989.
Reargued October 23, 1989 --- Decided
January 31, 1990.
SYNOPSIS
During unrelated drunk driving prosecutions in various
municipal districts, before same judge and where defen-
dants were represented by same attorney, the Superior
Court, Law Division, Monmouth County, permitted
municipal court judge to hear arguments relating to ad-
missibility of breathalyzer evidence. State appealed. The
Superior Court, Appellate Division, 229 N.J.Super 207,
reversed and remanded. Defendants appealed. The
Supreme Court, Garibaldi, J., held that courts would con-
tinue to take judicial notice of reliability of breathalyzer
evidence of per se violations of driving while intoxicated
statute.
Affirmed.
Stein, J., dissented and filed opinion.
1. Criminal Law 304(1)
Courts shall take judicial notice of the general reliability
of breathalyzer tests in establishing per se violation of
driving while intoxicated statute. N.J.S.A. 39:4-50(a).
2. Automobiles 411
Defendants in driving while intoxicated cases are not
permitted to challenge blood alcohol determinations made
Pa-1
by breathalyzer by taking results and extrapolating to
produce estimate of content at time of arrest. N.J.S.A.
39:4-50(a).
Francis X. Moore argued the cause for appellants (Fran-
cis X. Moore, attorney; Michael R. Speck, on the brief).
Mark P Stalford, Assistant Prosecutor, argued the cause
for respondent (John Kaye, Monmouth County Prosecutor,
attorney).
Boris Moczula, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Peter N. Perretti, Jr, Attorney General, attorney).
E. John Wherry, Jr., submitted briefs on behalf of amicus
curiae National Association of Criminal Defense Lawyers
(Voorhees, Bennet & Wherry, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal involves yet another challenge to the scien-
tific reliability of breathalyzers by defendants charged under
N.J.S.A. 39:4-50. Specifically, defendants challenge the
accuracy of the breathalyzer test results based on partition
--- ratio variability.
Defendants are charged with violating N.J.S.A. 39:4-
50(a), which makes it unlawful for a person to operate
"a moter vehicle with a blood alcohol concentration of
0.10% or more by weight of alcohol in the defendant's
blood...". This provision enacted by 1983 amendment
Pa-2
defines the per se violation of driving while intoxicated.
("OWI"). The breathalyzer, the machine the State employs
to ascertain blood alcohol, measures the amount of alcohol
in the breath and multiplies that by 2100 to arrive at the
level of alcohol in the arterial blood supplying alcohol
to the brain. This 2100:1 partition ratio presumes that
every 2.1 liters (2100 milliliters) of expired alveolar air (air
expired in the last 1/3 portion of a deep breath) contains
approximately the same quantity of alcohol as one milliliter
of blood. If a person’s actual blood-breath ratio is lower
than 2100:1, the breathalyzer will overestimate blood al-
cohol, and vice-versa.
Defendants assert that because people have broadly
divergent ratios of breath alcohol relative to blood alcohol,
the 2100:1 partition ratio is inaccurate and the breathalyzer-
test results premised on that partition ratio are scientifically
unreliable.
We reject this challenge to the breathalyzer, and con-
tinue to deny admissibility of extrapolation evidence to
refute the breathalyzer’s results. We find that breathalyzer
testing is a practical and reasonably accurate way of ful-
filling the Legislature’s intent to punish drunk drivers.
A. Background Procedural History and Facts
Downie sought a pretrial, pursuant to Ru/e 3:13-1(b),
in order to present expert testimony regarding the scientific
unreliability of breathalyzer-test results. To economize on
the costs of presenting that testimony, Downie moved
Pa-3
to consolidate his case with the drunk-driving cases of
three other defendants also represented by his attorney.
The other defendants are Mr. Matthews, Mr Marotta and
Mr. Carroll. The cases arose in four different municipalities,
all served by the same municipal court judge, who con-
solidated the four actions with regard to common questions
of law and fact and granted a pre-trial conference.
The Monmouth County Prosecutor filed a motion to
appeal nunc pro tunc the municipal court’s consolidation
order. The Law Division found that consolidation was im-
proper but permitted the municipal courts to consider
evidence regarding the admissibility and competency of
breathalyzer-test results. The State appealed from the Law
Division's Order.
The Appellate Division, relying on this Court's order
in Romano v. Kimmelman, 96 N.J. 66 (1984), that judicial
notice “shall” be taken of the scientific reliability of
breathalyzers, subject to few limited exceptions not at
issue in this case’, reversed the Law Division and held
that evidence regarding the scientific reliability and ac-
curacy of the breathalyzer-test results based on parti-
tion-ratio variability was inadmissible. 229 N.J.Super. 207.
'The Romano Order states that judicial notice “shall” be taken
of the scientific reliability of breathalyzers, with freedom from radio
frequency interference being the only qualificaton, and with the
only issues subject ot prooof being the working nature of the
particular machine, the qulification of the operator, and the method
of administration of the test. None of these issues are in question
on this appeal. No defendant alleges any fault in the operation
of the breathalyzer used in his case, but all challenge the accuracy
of the partition ratio.
Pa-4
ee ee
The Appellate Division considered this Court’s decisions
in State v. Tischio, 107 N.J. 504, 506 (1987), app.dism.,
484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988)
(N.J.S.A. 39:4-50 mandates a coviction for DWi based
solely on the breathalyzer reading in excess of .10% taken
within reasonable time of arrest even if reading at time
of operation would have been lower), and State v. Johnson,
42 N.J. 146, 171 (1964) (testimony disputing the accuracy
of the breathalyzer device has negligible probative value
in the present state of knowledge of the scientific and
medical community), as reflecting this Court’s strong belief
in the accuracy at reliability of the breathalyzer.
The Appellate Division also decided that the Monmouth
County Prosecutor had standing to represent the State,
229 N.J.Super. at 209 n. 1, and that the Municipal Court
lacked authority to consolidate cases in different municipal
courts. /d. at 210 n.
2. On the other hand, the court found no impediment
to the presentation of common proof or argument on
simiiar matters pending before the same court in more
than one jurisdiction in the interest of judicial economy.
Ibid.
This Court granted the defendants’ motion for leave
to appeal and the Attorney General’s motion for leave
to appeal as amicus curiae.
B. Factual Record on Limited Remand
This Court remanded the four consolidated cases to
the Law Division for a hearing, at which the defendants
and the State were instructed to present “evidence to
develop a factual record on the allegation that partition
Pa-5
ratio variability compromises the scientific reliability of
breathalyzer test results (and) which hearing shall address
the following issues. One: The nature and extent of the
variability of the partition ratio. And, two, the effect, if
any, Of such variability of the partition ratio on the reliability
of breathalyzer test results."
The experts who testified before the trial court were
Drs. Borkenstein, Hlastala, Payne, Jones, Dubowski, and
Simpson, Messrs. Shajani, Lucas, and Harding, and Sot.
Gulburg. Dr. Borkenstein, who invented the breathalyzer,
commented on its scientific reliability. Dr. Hlastala outlined
potential physical variables that could affect the blood-
breath partition ratio. Drs. Jones, Dubowski, and Payne
commented on their blood-breath experimental studies.
Messrs. Shajani and Lucas, Harding and Sgt. Gullberg
explored their own field work and laboratory studies. Dr.
Simpson analyzed the works of others from a statistical
perspective, but presented no experimental or field work
of his own.
After hearing the experts’ interpretation of the
physiological data, the lower court found the seven fol-
lowing conclusions of fact:2
1. The breathalyzer, Models 900A, is.a scientifically
reliable and accurate device for measurement of the al-
cohol content of a person’s breath (assuming proper
functioning of the instrument and a qualified operator).
2The trial court also prepared a synopsis of each expert's testimony
and a written overview of the issue, including a detailed description
of the basic theory of the blood/breath ratio.
Pa-6
pe UL PSR Pe ES Ota oat Hed
Pieters nea ene
2. In converting at a ratio of 1 to 2100 the breath-alcohol
concentration present in the person’s biood, the
breathalyzer reading is not scientifically accurate.
3. Calculated biood-breath ratios are worthless for foren-
sic purposes. They are subject to so many variables as
to be unuseable except for gross estimates of a person’s
true lung partition ratio, and then only at a particular mo-
ment. (Borkenstein, Dubowski, Payne, Jones, Lucas).
4. In a persecution for drunk driving, the breathalyzer
calibrated at 2100 to 1 is biased in favor of the accused.
(A) It under-reads the average person’s (blood alcohol)
by some 9% or 10%, Compared to a venous whole-blood
sample that might be simultaneously taken. (B) Its trun-
cated readings give the accused the benefit of anywhere
from .001% to .009% on a given test reading. (C) The
start line set on the breathalyzer scale gives the subject
the benefit of another .003% on any test reading. (All
experts agree on the foregoing.) (D) The lower value of
two consecutive readings taken fifteen minutes apart is
used for proof.
5. The breathalyzer gives a correct reading of alcohol
in the breath at a particular moment. It does not distinguish
between pre-peak “absorptive” or post-peak "post-absorp-
tive" stages in the intake and elimination of alcohol in
the blood. Those terms are of value only to the scientist.
6. The breathalyzer does not overestimate alcohol in
the blood at the .10% level to the detriment of the accused.
That is clearly so in the post-peak stage. In the pre-peak
stage. In the pre-peak stage the breathalyzer reading is
more accurate in predicting the amount of alcohol affecting
Pa-7
the brain than is a venous blood sample and it cannot
be empirically demonstrated that it is in error, so long
as two breath readings are taken within fifteen minutes
of each other, do not differ by more than .10%, and the
lower of the two is used for proof purposes. (Jones,
Shajoni, Dubowski, Lucas).
7. For the breathalyzer to give readings that can be
used with confidence, the operator must be sure that
at least twenty minutes have expired since the last ingestion
of alcohol to avoid the presence of “mouth" alcohol, which
can give a falsely high reading.
The parties amici filed exceptions to the trial court’s
Conclusions of Fact. The Monmouth County Prosecutor’s
Office as well as the Attorney General generally agree
with the trial court’s findings. Their exceptions relate
primarily to their concern that the conclusions of fact are
so terse and brief that without further explanation they
will be misinterpreted.
Accordingly, the Attorney General suggests that Con-
clusions of Fact #2 and 3 be expanded to read as follows:
Finding #2
2. The breathalyzer is calibrated at a breath/blood con-
version ratio of 1 to 2100 in determining the amount of
alcohol in an individual’s system. Use of a 1 to 2100
3The Offices of the Monmouth County Prosecutor and the Attorney
General submitted exceptions. The Attorney General’s Office also
submitted Proposed Findings of Fact. The attorney for the defendants
submitted exceptions and Proposed Findings of Fact in which Amicus
Curiae, National Association of Criminal Trial Lawyers (NACTL), joined.
Pa-8
ee ee
ratio in the conversion of measured breath alcohol con-
centration to venous blood alcohol concentration is scien-
tifically inaccurate in that it results in an underestimation
of venous blood alcohol concentration. The more scien-
tifically acceptable conversion ratio is 1 to 2300. However,
the forensic scientific community, aware that a 1 to 2300.
However, the forensic scientific community, aware that
a 1 to 2100 ratio benefits a defendant, has retained this
ratio for law enforcement purposes.
and that the following sentences be added to Finding
#3:
For this reason, a comparison of the actual differences
between breath test and venous blood test results is the
only valid form of analysis of the accuracy of breath testing
instruments calibrated at a 2100:1 ratio to determine
venous blood alcohol concentration. Reliable empirical
evidence demonstrates that these actual differences are
very small.
We agree with the Attorney General that the suggested
versions of conclusions of fact #2 and 3 are helpful in
understanding the Law Division’s findings of fact.
Defendants allege that the Court can consider only
conclusions of fact #2 and #2, and that we are con-
Stitutionally precluded from considering conclusions of fact
#1,4,5,6, and 7, because they were outside the scope
of the remand and the defense did not have a fair op-
portunity to present its side of those issues. We find no
merit in that position. The conclusions of fact are based
on the experts’ testimony and address the two issues
the Court specifically directed the Law Division to consider
Pa-9
on its remand. Aside from a specific exception to con-
clusion #6, the defense exceptions are not related to
any specific conclusions of fact but consist instead of
general allegations that the Legislature’s intent was to
base DWI convictions on the blood-alcohol level of the
driver and that the Law Division “erroneously concluded
that the breathalyzer does not overestimate alcohol in
the blood to the detriment of the accused."
(1) Based on our examination of the voluminous scien-
tific evidence and the exceptions and proposed findings
of fact filed by the parties and amici, we agree with the
trial court’s conclusions of fact.
As the evidence demonstrates, the use of the partition
ratio has been the subject of discussion and debate: in
the scientific community for years. Scientists have per-
formed many studies, stemming from as far back as 1930,
to determine the various factors that might affect the range
of the partition-ratio variability. Hence, we find no merit
to the defense’s contention that the variability of the par-
tition ratio represents a new scientific development.
Experts generally agreed on the physiological process
trigered by the ingestion of alcohol. A relatively small per-
centage of ethyl alcohol ( the alcohol contained in alcoholic
beverages ) is absorbed directly through the stomach -
into the blood that carries it to the brain. The remaining
alcohol is absorbed more slowly through the intestinal
tract. The alcohol reaches the brain via the carotid arteries.
The amount of alcohol present in the water in the brain
Pa-10
is what affects the driver’s ability to operate a motor vehicle.
After passing through the brain, the blood travels back
through the venous system to the liver, the heart and
back into the arterial system and lungs. The liver me-
tabolizes the alcohol. Once absorbed, the alcohol! will con-
tinue to affect the brain until it is completely metabolized.
The body undergoes at least two metabolic phases
following the ingestion of alcohol. The absorptive (pre-
peak) phase lasts from the initial ingestion of an alcoholic
drink to the point of the peak-alcoho! blood level. The
rate of absorption depends on variables such as the
amount of food in the stomach, the amount of pure alcoho!
ingested, and the rate of drinking. That initial phase is
followed by the post-absorptive (post-peak) phase, which
witnesses a decline in alcohol-blood levels.
During the post-absorptive phase, most experts agree
that venous blood, arterial blood, and breath are all good
indicators of the amount of alcohol in the brain. During
the absorptive phase, however, arterial blood, which takes
the alcohol to the brain, is the most accurate measure
of alcohol in the brain. venous blood may underestimate
the amount of alcohol in the brain during the absorptive
period because it does not circulate close to the brain
and is entirely dependent on the amount of alcohol derived
from the intestines, Thus, during the absorption period
arterial blood may reflect a much higher percentage of
alcohol than venous blood.
ideally, arterial blood, drawn from the carotid artery,
would furnish the most accurate estimate of alcohol in
the brain. Yet, a complicated, painful, and potentially
dangerous procedure is necessary to draw arterial blood.
Pa-11
The arterial blood does carry the alcohol to the lurigs
where it diffuses into the alveolar air space and is exhaled
in the breath. Because of that, many experts consider
alveolar air, or air expelled from the lungs at the end
of a deep breath, as the best practical measure of alcohol
in the brain during the absorptive phase. Capillary blood,
drawn from the fingertip and emanating from the shunt
between the arterial and venous systems, is also a sound
measurement of alcohol during the absorptive phase.
For law enforcement purposes, the drawing of capillary
blood and venous blood are a more intrusive and bur-
densome test than the breathalyzer. They require punctur-
ing the body of a suspected drunk driver by experienced
medical personnel who can and must take meticulous
care that blood samples not become contaminated. Capil-
lary blood drawn from the fingertip is small in amount
and the alcohol it contains easily evaporates when exposed
to the air. Extraction of venous blood, while not posing
a problem with evaporation, is an invasive procedure re-
quiring trained medical personnel. Moreover, venous blood
is unreliable in reading the amount of alcohol affecting
the brain during the absorptive phase.
In contrast, the breathalyzer may be administered by
a trained police officer, and requires only that the suspect
exhale deeply into the machine. Assuming the machine
is in working order and the test is properly administered,
all experts agree the breathalyzer can read the amount
of alcohol in the breath with a great deal of accuracy.
The operative inquiry is then whether the breathalyzer
may overestimate blood alcohol to the extent that some
drivers would be erroneously convicted.
Pa-12
ee eee ee een
The 2100:1 partition ratio, in its absolute simplicity belies
the fact that each subject’s partition ratio is affected by
a host of complex physiological variables. Henry's law,
in physical chemistry, states that when a liquid that contains
a volatile substance, such as alcohol, makes contact with
air in a closed container and at a known temperature,
a certain amount of alcoho! will escape into the air space
above in the form of vapor. The rate at which the alcohol
vaporizes will depend on the concentration of the alcohol
in the liquid and on the temperature. The higher the
temperature, the more alcohol will escape to the vapor.
When there is a fixed temperature and concentration of
alcohol, a state of equilbrium will result in which the
amounts of alcohol in air and liquid are static.
The breathalyzer applies Henry’s law to the blood which
courses through the lungs carrying alcohol. As the arterial
blood passes through the lungs, some of the alcohol
will become vaporized in the alveolar air and expelled
in the breath. The breathalyzer is calibrated to presume
that at 34° Celsius, a solution of 121 grams of alcohol
per 100 milliliters of water will give off alcohol to the vapor
of .10 grams per 210 liters of vapor. Thus, we arrive
at the current 2100:1 partition ratio.
Dr. Dubowski found that individual partition ratios vary
greatly. In one experiment, Dubowski paired blood and
breath samples from experimental subjects. He found that
the partition ratio of samples from different people ranged
from 1706:1 to a high of 3063:1 despite each having
ingested the same amount of alcohol. A person’s partition
ratio may vary from time to time. Moreover, it may be
that no two people have the exact same partition ratio.
Thus, the 2100:1 partition ratio is merely an estimate that
Pa-13
roughly approximates most people’s ratio and that is
Calibrated to give the benefit of the doubt to the subject
in most instances.
Expert witnesses generally agreed that the breathalyzer,
using a 2100:1 partition ratio, will usually underestimate
the amount of alcohol in the blood. That is due to a
variety of factors. First, most people’s partition ratios may
be closer to 2300:1 than to 2100:1. Second, the
breathalyzer results are truncated, or the third decimal
position is dropped when read. If a person reads .099
on the breathalyzer, the results will be shortened to read
.09, thereby underestimating the breath alcohol. Third,
a suspect may not provide enough deep breath to register
all of the alcohol present in the alveolar air. Fourth, the
breathalyzer’s scale is set .003 below the start line and
this gives suspects an added benefit. Finally, under current
procedures, law-enforcement officials will count only the
lower of two breathalyzer results, obtained fifteen minutes
apart, as evidence against a suspect. These, among other
less-significant factors, cause the breathalyzer to render
many more results on the low side than on the high
side.
Dr. Borkenstein testified that a 2300:1 partition ratio
would probably result in more accurate breathalyzer read-
ings. He estimated that 9% of those who take the
breathalyzer test receive lower readings of alcohol in their
blood than are accurate. In contrast, he estimated that
only three persons in a thousand might be convicted
as a result of an erroneously-high breathalyzer reading.
He adduced that breathalyzer researchers and members
of the National Safety Council adopted the 2100:1 partition
ratio instead of the more accurate 2300:1 ratio because
Pa-14
swt ee a ve ee Eee OU ee eee ee
ham aa mateRindh A: 2 Ratha
they wanted to err on the low side and have almost no
errors on the high side.
Dr. Borkenstein’s statements were echoed by almost
all the witnesses. Mr. Harding estimated that the
breathalyzer readings were, on average, 11% lower than
the alcohol present in the blood. Dr. Jones, who conducted
in-depth empirical studies for Sweden, indicated that 1.8%
of the population has a partition ratio of less than 2100,
while 98.2% have a higher partition ratio in the post-ab-
sorptive phase. Dr. Payne estimated the mean partition
ratio to be 2271:1. In a study he conducted in 1966,
he had estimated an even higher partition ratio of 2470:1.
The trial court found Dr. Dubowski to be the most im-
pressive expert witness. Likewise, prior New Jersey courts
have relied on Dr. Dubowski, recognizing him to be a
leading authority on the scientific reliability of the
breathalyzer. State v. McGinley, 229 N.J.Super. 191, 200
(Law Div.1988) (cited in State v. Dovnie, supra. 229
N.J.Super. at 211). Therefore, it is essential to dispel any
prior misconceptions of his scientific position. In McGinley,
the trial court stated that according to Dr. Dubowski there
was a 14% overestimation and that “every breathalyzer
reading should be reduced by .055%." The Appellate
Division in this case also relied on this mistaken reading
of Dr. Dubowski’s position. 229 N.J. at 211.
At the remand hearings, Dr. Dubowski stated that he
never testified that .055 should be deducted from each
breathalyzer result. Moreover, with respect to the 14%
overestimation figure he said that at the time he testified
at a trial in Alaska on which the McGinley couri ‘slied,
he did not have the statistical data analysis he now has
Pa-15
and that his previous simplified testimony does not fairly
and correctly reflect the facts.
Dr. Dubowski also testified that the breathalyzer un-
derestimates blood aicohol much more frequently than
it overestimates it but is generally highiy accurate in reading
breath-alcohol content. He based his conclusion in part
on the results of a study in which he compared the results
obtained using the breathalyzer with results obtained using
sophisticated laboratory equipment in 709 pairs of breath
samples.
In another study of subjects in the post-absorptive
phase, involving 388 paired venous blood/breath samples,
Dr. Dubowski found that in 86% of cases, the breathalyzer
underestimates the blood-alcohol level. In 14% of the
cases, it did not underestimate the blood-alcohol! level.
Of that 14%, in 2.3% of cases the breathalyzer states
exactly the blood-alcohol content. In 9.4% of the cases,
the breathalyzer overestimates the blood-alcohol level at
the third decimal level, where it has no impact on the
subject’s breathalyzer reading. In only 2.3% cases does
the breathalyzer materially overestimate the blood-alcohol
level potentially to the detriment of the accused. Even
the 2.3% figure is subject to question inasmuch as it in-
volves separate pairs from the same subject. !t is not
established that 2.3% of the people would have a higher
breathalyzer reading than the actual percentage of alcoho!
in their blood.
Still, despite the evidence that the breathalyzer could
potentially wrongfully convict less than 2.4% of suspected
drunk drivers, some scientists still pose objections to the
test based on the infinite physical factors that affect the
Pa-16
blood-breath ratio. Biological factors such as mouth
temperature, gender, body temperature, medication,
menstrual cycle, and oral contraceptives may have some
theoretical effect on breathalyzer readings. In addition,
hematocrit, or the ratio of the volume of blood cells to
the total volume of blood, expressed as percentage, may
have some theoretical effect. Women have generally lower
hematocrit meaning a iower percentage of their blood
is comprised of cells, and therefore a higher percentage
is comprised of water. No scientist during the remand
hearing could establish that thest theoretical effects were
sufficiently concrete as to be significant. Moreover, these
factors would not always inflate breathalyzer readings.
Even defense witnesses admitted that some of these fac-
tors would actually lower breathalyzer readings.
Our review of the record on remand is in conformity
with the conclusions of fact determined by the trial court.
We are satisfied that the breathalyzer is a reliable and
indispensable tool for law-enforcement purposes.
It is important to note the legislature’s statutory pronoun-
cement on drunk driving. N.J.S.A. 39:4-59(a) states that
"(a) person who...operates a motor vehicle with a blood
alcohol concentration of 0.10% or more by weight of al-
cohol in the defendant's blood" is guilty and subject to
punishment. N.J.S.A. 39:4-50.2 states that drivers on public
roads consent to the taking of breath samples for the
purpose of ascertaining their blood-alcohol levels
(proveded the test is administered according to statutory
standards). Finally, N.J.S.A. 39:4-50.3 provides that the
Pa-17
Attorney General has the authority to promulgate breath-
testing procedures and standards governing the qualifica-
tions and competence of those who administer the test.
Those statutory pronouncements give rise to certain
ambiguities. N.J.SA. 39:4-50(a) refers to .10% as
measured by the weight of alcohol in the defendant's
blood. It does not explicitly refer to a particular measure
of alcohol in the breath as constituting the per se infraction
of drunk driving. N.J.S.A. 39:4-50.2, the “implied consent"
statue, does refer to breath samples explicitly, but also
mentions the ascertaining of blood-alcohol levels as the
ultimate purpose of breath testing. The statutes give rise
to the ambiguity of whether a .10% breathalyzer reading
was intended to be sufficient to convict someone, even |
when the breathalyzer may have a maximum 2.3% chance |
of overestimating blood alcohol. |
It is an accepted principle ci statutory construction that |
an ambiguous statute shouid be interpreted in light of |
the statutory purpose. Accountemps Div. of Robert Half |
of Philadelphia, Inc. v. Birch Tree Group, Ltd., 115 N.J. |
614 (1989); Horwitz v. Reichenstein, 15 N.J. 6,8 (1954); |
In re Petition of Battle, 190 N.J.Super. 232, 236
(App.Div.1983). We must search for indications of legis-
lative intent or for the inferences that may be drawn from
the structure and purpose of the statute. State v. Maguire,
84 N.J. 508, 514 (1980)("In resolving...questions of
Statutory construction, we are mindful that our task is
to effectuate the legislative intent in light of the language
used and the objects sought to be achieved."). Moreover,
we should make reference to legislative history not only
where statutory language is ambiguous but also where
literal interpretation would thwart the overall statutory
Pa-18
eee enna
scheme. State v. Tischio, 107 N.J. 504, 509(1987), app.
dism. 484 U.S. 1038, 108 S.Ct. 768, $8 L.Ed.2d 855 (1988);
Exxon Corp. v. Hunt, 97 N.J. 526 (1984).
The legislative hearings on N.J.S.A. 39:4-50.2 provide
some insight into whether it is reasonable to assume that
the statute's: mention of breath was an acknowledgement
by the legislature that breath, not blood, would be the
final measure of intoxication. The then-Attorney General,
Arthur J. Sills, told the Senate Committee on Law and
Public Safety that inebriation would be ascertained through
“the use of a breath test." Public Hearings on Senate
Bill No. 8 (Driving While Impaired) and Senate Bill No.
9 (Implied Consent), February 28, 1966, at 39. In addition,
the Attorney General commented on how there had been
@ process of “gradual acceptance of chemical test laws
which provide statutory standards for interpreting the
results of chemical tests performed on persons charged
with the offense of driving while under the influence of
intoxicating liquor." /d. at 32. The Attorney General's state-
ments attest to the acceptance, progressive over time,
of the breathalyzer as the ideal chemical measurement
of degree of inebriation.
Others who testified before the Senate Commiittee
echoed the Attorney General's reliance on the breathalyzer.
The Director of the Division of Motor Vehicles spoke of
scientific testing as being definitive of the individual's level
of impairment. /d. at 51. The president of the New Jersey
Licensed Beverage Association referred to “the ap-
proximate number of cocktails one would need to con-
sume" so that “the scientific reading to discover the alcoho!
content would be .10%." /d. at 31A. The then-Superin-
tendent of the State Police summarized the tenor of the
Pa-19
hearings when he stated that the chemical test, or
“drunkometer" (analogous to our present breathalyzer),
“is the best method of separating the innocent from the
guilty." Id. at 12A. Although chemical tests may refer to
a broader class than just the breathalyzer pervaded the
hearings. There was an assumption underlying the hear-
ings that a breathalyzer reading of .10% should be sufficient
to establish impairment.
New Jersey enacted the .10% per se law partly in
response to federal standards and incentive programs.
Legislative history reveals that those federal statutes also
presumed the reliability of the breathalyzer. See Assemble
Judiciary, Law, Public Safety and Defense Committee State-
ment to Senate Bill No. 1833, L.1983, c. 129; 23 U.S.C.A.
Sec. 408, 23 C.F-R. Ch. 111, Part 1309; 3 U.S.Code Con-
gressional and Administrative News, 97th Congress,
Second Session (1982) 3367 at 3370. Thus, federal stand-
ards appear to have been formulated with the presumption
that the breathalyzer would be one of the preferred
measures of intoxication.
We have previously held the New Jersey statutory lan-
guage to presume the validity of breathalyzer test results.
In State v. Tischio, supra, 107 N.J. at 522, we held that
“the statute prescribes an offense that is demonstrated
solely by a reliable breathalyzer test administered within
a reasonable period of time after the defendant is
stopped..which test results in the proscribed blood alcoho!
level." (Emphasis added.) In State v. Johnson, 42 N.J.
146 (1964), and Romano v. Kimmelman, 96 N.J. 66(1984),
we also declared our conviction in the accuracy and
reliability of the breathalyzer.
Pa-20
In light of the scientific and legislative evidence, we
find unpersuasive the argument that blood should be the
sure and ultimate measure of inebriation. Blood, itself is
not monolithic. Venous blood differs from the arterial blood,
which actually takes alcohol to the brain. Venous blood
may be far less accurate as an indication of the amount
of alcohol affecting the brain than breath in the absorptive
phase.* Given the fact that the legislature desired to bar
driving while intoxicated, it appears logical that the blood
contemplated was the arterial blood, which takes alcohol
to the brain. Because arterial blood is practically unob-
tainable, then breath, not venous blood, is the most con-
sistently accurate reflection of the concentration of alcohol
affecting the brain. Thus, the legislative and judicial ref-
erence to "blood" is not an intended concession that blood
tests are the preferred method for ascertaining inebriation.
The dissent alleges that we are, in fact, converting a blood
statute to a breath statute. Post at 470. Instead, we are
reflecting the legislative intent that “blood,” inasfar as it
refers to arterial blood, is best represented by breath
samples.
Other states have acknowledged the breathalyzer to
render results that are conclusive of the defendant's guilt
or innocence. In State v. Rucker, 297 A.2d 400 (1972),
the Delaware Supreme Court addressed the defendant’s
claim that possible error in breath testing might indicate
that his blood-alcohol level was below the level proscribed
by statute. The court rejected that claim, holding that
4atthough it is recommended that people not be tested within twenty
minutes after they ingest their last drink, the absorptive period
may be much longer than twenty minutes in most individuals.
Pa-21
the test result, rather than the proscribed blood-alcohol
level, was the essential element of the offense:
Under the terms of the statute the trier of fact must
determine whether the test results show the required per-
centage of alcohol in the blood. The trier of fact is not
free to disregard the mandate of the statute or to question
the wisdom of the General Assembly in providing that
test results constitute proof of that element of the crime.
The possible variance in results between various types
of tests...may be an inherent weakness of the statutory
provisions. The General Assembly could have considered
these possible variances when it enacted the legislation
but the legislation is so worded as to preclude these
factors from being considered as issues of fact.
If there had been evidence that the test was improperly
administered, such evidence could cast such doubt on
the result as could be considered by the trier of fact
in determining whether the statutory requirement had been
met. But, as indicated, evidence that the type of tests
already approved by the General Assembly when properly
conducted are still subject to possible variations in results
is not a matter which is here left to the trier of facts.
(Id. at 402-03.)
In light of Tischio and other New Jersey precedent,
the breathalyzer should receive similar deference in this
state as in jurisdictions such as Delaware. See, e.g., Cooley
v. Municipality of Anchorage, 649 P.2d 251, 254 (Alaska
Ct.App.1982) (breathalyzer is accurate in vast majority
of cases despite possible variations in converting breath-
alcohol concentration to blood-alcohol concentration);
People v. Capporelli, 148 ill App.3d 1048, 103 IIl.Dec. 864,
868, 502 N.E.2d 11, 15 (1986) (legislative provision that
Pa-22
beathalyzer is an available measure of intoxication is based
on sufficient scientific data as to be rational); Heddan
v. Dirkswager, 336 N.W.2d 54, 62 (Minn.1983)
(breathalyzer, if administered correctly, is highly accurate);
State v. Brayman, 110 Wash.2d 183, 751 P2d 294 (1988)
("While the record may establish that breath is a less
direct measure of blood-alcohol levels, it does not establish
a lack of reasonable and substantial relationship between
breath alcohol and impairment."). In many of these states
a breath-alcohol reading of .10% is explicitly cited in the
statutory language, without any reference to blood alcohol,
as being sufficient evidence of the defendant’s guilt, as-
suming the machine is operated correctly and is in good
working order.
We believe that the legislature intended the breathalyzer
to be a measure of inebriation and not just biood alcohol.
It is not necessary for there to be “unanimity of opinion
or universal infallibility...for judicial acceptance of generally
recognized matters." State v. Johnson, supra, 42 N.J. at
181. Judicial notice serves “to provide a speedy and ef-
ficient means of proving matters which are not in genuine
dispute." V. Biunno Current N.J. Rules of Evidence, Com-
ment 1 to Evid.R. 9 (quoting RWB Newton Assocs. v.
Gunn, 224 N.J.Super. 704, 711 (App.Div 1988) (hereinafter
Biunno). When a scientific device has been held to be
reliable, it is no longer necessary for there to be expert
testimony on that issue at every trial. Biunno, supra, Com-
ment 12 to Evid.R. 9. We are convinced that as long
as proper procedures are followed, the breathalyzer should
remain a subject of judicial notice.
The breathalyzer reads alcohol with unimpeachable ac-
curacy. Breath, in turn, is the best measure of alcohol
Pa-23
in the arterial blood, which feeds alcohol to the brain.
The 2100:1 partition ratio does combine with other
physiological factors to underestimate blood alcohol in
a significant number of cases. This results, however, only
in giving suspects an added benefit of the doubt. Every
method of ascertaining blood alcohol carries inherent
problems. No method is 100% accurate. We hold that
the breathalyzer, with a maximum overestimation error
margin of 2.3%, is not only the best practical tool, but
the tool the legislature intended to carry out its will. Romano
v. Kimmelman, supra, 96 N.J. 66.
We are confident that continued use of the breathalyzer
will not lead to unjust convictions. The scientific evidence
is more conclusive now than ever that the chances of
overestimation are extraordinarily small. We must construe
legislative intent in cases in which statutory language is
ambiguous. The legislature wanted drunk drivers off the
road. As a measure for determining a motor vehicle viola-
tion, a scientific test that produces predictably accurate
results in 97.7% of the cases is not unreasonable. Because
of this we also continue to reject the admissibility of ex-
trapolation evidence. Stat v. Tischio, supra, 107 N.J. 504.
(2) In conclusion, we hold that the breathalyxer fulfills
legislative policy and intent to provide a reliable and fair
measure of alcohol in the brain. Breathalyzer results can
continue to be used in prosecution of the per se offers
of drunk driving. The reliability of breathalyzer results will
continue to be the subject of judicial notice in drunk-driving
prosecutions. Extrapolation evidence will also continue
to be inadmissible.
Pa-24
The breathalyzer is unsurpassed in its combined prac-
ticality and usefuiness. It errs on the low side in a significant
number of cases, in order not to overestimate blood alcohol
in the greatest possible number of cases. We are convinced
this is justifiable in order to further the legisiature’s will
and maintain efficiency in our system of justice.
The judgement of the Appellate Division is affirmed
and the four matters are remanded to the municipal courts
for separate trials to be held consistent with this opinion.
STEIN, J., dissenting.
The Court is afflicted with a severe case of institutional
amnesia. It has either forgotten, or has unaccountably
ignored, the most basic distincton between the legislative
and judicial branches of government.
Underlying this litigation was the premise, acknow-
ledged by all parties and this Court, that New Jersey’s
drunk-driving statute is based on blood-alcohol content.
N.J.S.A. 39:4-50. The single issue was whether the
breathalyzer, which measures breath-alcohol content, in-
accurately converts breath alcohol to biood-alcohol con-
tent, inaccurately converts breath alcohol to blood alcoho!
because the conversion ratio at which the breathalyzer
is calibrated exceeds the so-called partition ratio of a por-
tion of the population. This Court ordered a remand hearing
“to develop a factual record on the allegation that partition
ratio variability compromises the specific reliability of
breathalyzer-test results ***." 114 NJ. 498 (1989).
Evidence adduced at the remand hearing demonstrates
that the breathalyzer is highly reliable, underestimating
blood-alcohol content in most cases, but materially over-
Pa-25
estimating blood-alcohol content in most cases, but
materially overestimating blood-alcohol content in ap-
proximately 2.3% of all subjects tested.
Confronted with such evidence, the Court today “con-
strues" our drunk-driving statute as proscribing .10% or
more of alcohol in the breath as well as in the blood.
Ante at 466-468. That interpretation enables the Court
to sustain the use of the breathalyzer as a device for
proving violations of the drunk-driving statute even in that
small number of cases in which the breathalyzer materially
overestimates blood alcohol. At the same time, the Court
disregards not only the unmistakably plain statutory lan-
guage, but also its own opinions that have repeatedly
and consistently characterized the statutory violation in
terms of a prohibited amount of alcohol in the blood.
See State v. Tischio, 107 N.J. 504, 506, 510, 516, 517,
522 (1987); Romano v. Kimmelman, 96 N.J. 66, 72, 78,
82 (1984); State v. Johnson, 42 N.J. 146, 151, 158, 169,
172-73 (1964).
Although the Court’s resourcefulness is doubtless well-
motivated, the taint on the judicial process is ineradicable.
It is also totally unnecessary. Evidence in the record sug-
gests that a relatively minor adjustment in the partition
ratio at which breathalyzers are calibrated would eliminate
all material overestimates of blood alcohol, and a further
remand would permit testimony to be elicited on the extent
of the required adjustment. Moreover, the Legisiature’s
concern over the ravages of drunk driving is well-docu-
mented. Guided by the Attorney General, who has par-
ticipated as amicus in this appeal, it is a virtual certainty
that the Legislature would act swiftly to amend the drunk-
driving statute to provide specifically that the prohibited
Pa-26
quantity of alcohol in either the breath or blood constitutes
a violation.’ But if an amendment to the statute is required,
that is the business of the Legislature. It is not the function
of this Court.
Chief Justice WILENTZ and Justices HANDLER,
POLLOCK, and O’HERN join in this opinion.
Justice STEIN has filed a separate dissenting opinion.
Justice CLIFFORD did not participate.
For affirmance and remand - Chief Justice WILENTZ,
HANDLER, POLLOCK and O’HERN - 4.
For reversal - Justice STEIN - 1.
See, e@.g., Cooley v. Municipality of Anchorage, 649 P2d 251,
252 (Alaska Ct.App.1982) (reflecting amendment to Anchorage DWI
ordinance to define violations in terms of blood alcohol or breath
alcohol): People v. Capporelli, 148 lil.App.3d 1048, 103 Ill.Dec. 864,
867, 502 N.E.2d 11, 14 (1986) (describing Illinois DWI statute that
defines violations in terms of blood-alcohol or breath-alcoho!l content);
State v. Brayman, 110 Wash.3d 183, 751 P.2d 294, 296 (1988)
(reflecting amendment to Washington DWI statute to define violations
in terms of blood-alcohol or breath-alcohol content); Okla.Stat.Ann.
tit 47, 11-902A1 (West 1989) (defining violation Oklahoma DWI
statute in terms of blood alcohol or breath alcohol).
Pa-27
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v. ANDREW
DOWNIE, DANIEL MATTHEWS, MARTIN MAROTTA,
AND
CHARLES CARROLL, DEFENDANTS-RESPONDENTS
Superior Court of New Jersey
Appellate Division
Argued October 25, 1988-Decided
November 28,1988.
SYNOPSIS
During unrelated drunk driving prosecutions in various
municipal districts, before same judge and where defen-
dants were represented by same attorney, the Superior
Court, Law Division, Monmouth County, permitted
municipal court judge to hear arguments related to ad-
missibility of breathalyzer evidence. State appealed. The
Superior Court, Appeliate Division, Dreier, J.A.D., held that:
(1) county prosecutor had standing to appear in cases;
(2) municipal judge lacked authority to consolidate cases
arising in different municipal courts; (3) while consolidation
may be inappropriate, common proof and argument could
be joined for purposes of judicial economy; and (4) in
light of prior Supreme Court order, new scientific challenges
to breathalyzer test results were inadmissible except as
offer of proof.
Reversed and remanded.
1. District and Prosecuting Attorneys 7(1)
Pa-28
Since county prosecutor had plenary authority to
prosecute defendants, he could supersede various
municipal prosecutors and represent State in criminal
proceedings. N.J.S.A. 2A: 158-4, 2A:158-5; R. 3:23-9.
2. Action 57(6)
Municipal judge lacked authority to consolidate cases
arising in different municipal courts.
3. Trial 2
While consolidation of cases in different municipalities
may be inappropriate, there is no impediment to either
litigant on his motion, or for a municipal judge from making
application to assignment judge for an order permitting
common proof of or argument on similar matters pending
before same judge in more than one jurisdiction in the
interest of judicial economy.
4. Automobiles 411
In light of prior Supreme Court order requiring that
judicial notice be given to breathalyzer test results in drunk
driving prosecutions, new scientific challenges to those
results and to the tests themselves were inadmissible ex-
cept as offer of proof for purpose of making a record;
overruling State v. McGinley, 229 N.J.Super. 191.
Before Judges ANTELL, DREIER AND HAVEY.
Mark P. Stalford, Assistant Prosecutor argued the cause
for appellant (John Kaye, Monmouth County Prosecutor,
attorney; Mark P. Stalford, of counsel and on the letter
brief).
Stephen M. Pascarella argued the cause for respon-
dents (Francis X. Moore, attorney; Francis X. Moore, on
the letter brief).
The opinion of the court was delivered by
DREIER, J.A.D.
Pa-29
(1) The State appeals, on leave granted, from a Law
Division order permitting the municipal courts of four
municipalities, all served by the same municipal court
judge, to hear arguments relating to the admissibility of
breathalyzer evidence. The defendants in the four cases
ere represented by the same attorney. The Monmouth
County Prosecutor superseded the various municipal
prosecutors and represented the State at the Law Division
hearing and in this court.’ In separate actions arising
in Burlington County, similar arguments have been raised
and disposed of in State v. McGinley, 229 N.J.Super. 191
(Law Div. 1988)
(2,3) On the substantive issue, we understand that each
defendant finds no fault with the operation of the particular
breathalyzer involved in his case, but rather challenges
whether the breathalyzer machines in general accurately
test the subject’s blood-alcohol content. The Law Division
judge determined that the four matters should not have
been consolidated and that four separate hearings should
‘Defendants challenge the right of the Monmouth County Prosecutor
to appeal the Law Division decision. N.J.S.A. 2A:158-4 and 5 give
the Attorney General and county prosecutors plenary jurisdiction
to prosecute all criminal matters in this State. It is clear from
the wording of N.J.S.A. 2A:158-5 that the words “criminal business"
in 8 4 are not limited to crimes, but include the prosecution of
“offenders against the laws." Cf. R. 3:23-9. Since the Monmouth
County Prosecutor has primary authority to prosecute, he may
supersede the various municipal prosecutors; we therefore reject
the standing issue raised by defendants.
Pa-30
be held. He refused, however, to preclude the municipal
courts from holding such hearings.2
(4) The State urges that Romano v. Kimmeiman, 96
N.J. 66, 72 (1984), conclusively determined by an order
of general application, that
(t)he Smith and Wesson Breathalyzer Models 900 and
900A are found to be scientifically reliable and accurate
devices for determining the concentration of blood alcohol.
Such scientific reliability shall be the subject of judicial
notice in the trial of all cases under N.J.S.A. 39:4-50.
And see discussion of this Order, 96 N.J. at 82. The
Order further stated:
The results of the administration of Mode! 900 can
be received in evidence in accordance with the standards
under State v. Johnson, 42 N.J. 146 (1964), without further
proof establishing any additional conditions for admis-
sibility (concerning radio frequency interference). (96 N.J.
at72)
2The State contends that the deconsolidation order is not properly
before us, since the defendants have not taken a cross-appeal.
This is so, and we find no authority for a municipal judge to
consolidate cases arising in different municipal courts. But for future
guidance we see no impediment to a litigant on his or her own
motion, or as directed by a municipal court judge, making an
application to the Assignment Judge in the interest of judicial economy
for an order permitting, not consolidation, but a common proof
hearing or argument on matters pending before the municpal judge
in more than one jurisdiction.
Pa-31
Further,
All... future cases under N.J.S.A. 39:4-50 shall be
prosecuted in accordance with the terms of the within
Order, which shall remain in effect unless otherwise
modified by further order, or final decision of this Court.
(id. at 74).
See also State v. Tischio, 107 N.J. 504, 506(1987),
app. dism. for want of substantial federal question, ---
U.S. ---, 108 S.Ct. 168, 98 L.Ed.2d 855 (1988), holding
that NSA. 39:4-50 mandates a conviction for DWI based
solely on the breathalyzer reading in excess of .10%. Even
in the 1964 case of State v. Johnson, cited in Romano,
the Supreme Court stated that
(w)hile such testimony (disputing the accuracy of the
breathalyzer device) is probably technically still admissible,
its probative value and weight is almost nil in the present
state of knowledge of the scientific and medical community.
(State v. Johnson, 42 N.J. at 171).
It appears that the “almost nil" chance noted in Johnson
has ripened into a more plausible attack based upon
new data. But the issue here is whether in the face of
the Supreme Court’s Order and decision in Romano, such
proof can be accepted other than as offer of proof for
the purpose of makimg a record. R. 1:7-3. In State v.
McGinley, the trial judge initially determined that, applying
the principles of stare decisis, he was without jurisdiction
to challenge the Supreme Court decisions in Johnson,
Romano and Tischio. 229 N.J.Super. at 194-95. He then
reconsidered and issued the McGinley opinion, stating
that the new challenges involved factors never before
presented to the Supreme Court. /d. at 194-97. In Romano
Pa-32
the breathalyzer survived a general challenge based only
upon radio frequency interference, and the Court permitted
specific proof of the particular device’s or location’s sen-
sitivity. in McGinley, four additional factors were raised,
and heve been incorporated by defendants here by ref-
erence:
The scientific evidence upon which the defendants rely
shows the following:
(1) The breathalyzer is designed to test persons having
a 2100/1 blood-breath ratio. Such ratios in fact vary from
1100/1 to 3200/1 and the variance can produce erroneous
test results. High readings are produced in 14% of the
population. (2) The temperature of the machine itself varies,
affecting test results. (3) Body temperatures vary, affecting
test results. (4) Hematocrit (the solid particles in whole
blood) levels vary, particularly between males and females,
affecting test results. These sources of error make
breathalyzer test results suspect and, to insure reliability,
require the substantial reduction of blood-alcohol percent-
ages based on a translation of those results. The leading
expert in the field, recognized as such by both State and
defense, is of the opinion that the reduction should be
055. (229 N.J.Super. at 193.)
In the case before us it was represented at oral argument
that these factors would be shown, plus additional factors
such as race. For example persons of Asian origin tend
to show falsely high readings based upon average biood-
breath ratios under 2100/1. While there may be constitu-
tional ramifications if these allegations are proven, we
do not reach this issue. It is better left for review on
a more complete record, perhaps after Supreme Court
review.
The problem with the approach taken in McGinley and
argued here is that the Supreme Court’s order in Romano
was not that judicial notice "may" be taken, but that judicial
notice “shall* be taken of the scientific reliability of the
breathalyzers. The machines were “found to be scien-
tifically reliable and accurate devices for determining the
concentration of blood alcohol." 96 N.J. at 72. The only
qualification to this finding was the necessary proof of
freedom from radio frequency interference. “All...future
cases under N.J.S.A. 39:50-4" are subject to the order.®
Once judicial notice is taken, no proof to the contrary
is permitted. Evidence R. 11; Klimko v. Rose, 84 N.J.
496, 50-4 (1980). As noted in Romano, the only issues
subject to proof in the admission of breathalyzer results
are the working nature of the particular machine, the
qualification of the operator, and the method of administra-
tion of the test. 96 N.J. at 91. Therefore the order remanding
the matters to the separate municipal courts for proof
Outside of these permitted areas was substantively in-
correct.
The issues raised by defendants are of significant dimen-
sions since they have alleged variables, herefore uncon-
sidered by New Jersey appellate authority, in the
interpretation of breathalyzer results. As noted in McGinley,
other states have considered the issue, with varying results.
Compare State of Nebraska v. Burling, 224 Neb. 725,
400 N.W. 20 872 (1987), with People v. Pritchard, 162
CalApp.3d Supp. 13, 209 Cal. Rptr.314 (Super. Ct. 1984),
3Since Romano, the statute was amended to read as it was
enforced in Tischio. But the Supreme Court in Romano was aware
of the new per se language, 96 N.J. at 78-79, 94, and still made
ts order effective in all future cases.
Pa-34
Pam?
and People v. Gineris, 162 Cal App 3d Supp. 18, 209
Cal.Rptr. 317 (Super.Ct.1984). The issues are especially
important in New Jersey in view of the per se application
of N.J.S.A. 39:4-50. The matter of the temperature of the
machine may easily be solved, and can constitute merely
another item on the operator’s checklist. But, if defendants
are correct concerning the variability of the 2100/1 breath-
blood ratio (the internal basis upon which the breathalyzer
machine is based), vastly different individual blood-alcohol
content can result in the statutory .1% reading. Viewed
a different way, inebriated drivers may pass, while com-
paratively sober drivers may fail a breathalyzer test. Focus-
ing on the variation in the 2100/1 breath-blood ratio, and
accepting that the test must be one which indicates blood-
alcohol content, significant sections of the population may
be held to a standard different from others. As to an
individual’s difference from the norm, if the only way one
can determine how he or she fits within the alleged breath-
blood ratio continuum of from 1100/1 to 3200/1, with the
additional variables of the person’s hematocrit levels, is
to have a blood test (which itself could conclusively es-
tablish the blood-alcohol level), then the machine may
well be no more than a rough gauge of inebriation in
all but the most serious cases. See State of Nebraska
v. Bruling, supra, applying a 52.38% reduction factor, as
opposed to the .055 reduction suggested in McGinley.
We recognize these problems, but we are also bound
by Romano Order, which we view as a Clear exercise
of the Supreme Court’s constitutional rule-making power.
N.J. Const. (1947), Art. VI, § Il, par.3. The Order is definite
when it states that it is binding in all future cases. 96
N.J. at 74. While we recognize the scholarly and persuasive
analysis of the court in McGinley, we must overrule that
Pa-35
decision unless and until the Supreme Court takes some
action to relax the Romano Order. We can only suggest
that this matter be reviewed immediately, perhaps by a
Supreme Court remand of these cases to a judge or
master to establish a record. We may not, however, take
this action ourselves, and are constrained under the
present law to reverse and remand the four matters before
us for separate trials at which such proof shall be in-
admissible except to make a record for some future appeal.
We will nevertheless, on our own motion grant a stay
to permit defendants to petition the Supreme Court for
certification.
REVERSED AND REMANDED.
Pa-36
MONMOUTH COUNTY SUPERIOR COURT
LAW DIVISION -
DOCKET NO.: 13525
STATE OF NEW JERSEY,
Plaintiff, TRANSCRIPT OF
-VS- ELECTRONICALLY
RECORDED
PROCEEDINGS
ANDREW DOWNIE, DANIEL
MATTHEWS, MARTIN
MAROTTA
and CHARLES CARROLL,
Defendants.
June 15, 1988
TRANSCRIPTION REQUESTED BY: COUNTY
PROSECUTOR'S OFFICE BEFORE: HON. ALVIN Y. MIL-
BERG, A.J.S.C.
APPEARANCES:
MARK B. STALFORD, ESQ.
For the Plaintiff.
JAMES BUTLER, JRS.,
For the City of Asbury Park
FRANCIS X. MOORE, ESQ..,
For the defendants.
Pa-37
THE COURT: Please be seated. Good morning
Gentlemen.
MR. STALFORD: Good morning.
THE COURT: State of New Jersey versus Downie, Mat-
thews, Marotta and Carroll, miscellaneous number 6-426-
88. May | have the appearances on the record please.
First the Prosecutor?
MR. STALFORD: Mark B. Stalford, Assistant Monmouth
County Prosecutor.
MR. BUTLER: James Nelson Butler, Jr. appearing on
behalf of the City of Asbury Park.
MR. MOORE: Francis X. Moore, 21% Maple Avenue,
Red Bank, New Jersey on behalf of defendants, if it please
the Court.
THE COURT: All right, gentlemen, | guess it is about
some two weeks ago, Mr. Stalford came to ry chambers
to advise me that he wanted to appeal a consolidiation
in the municipal court and asked what steps he should
take.
| directed that he file a motion without a date and
that | would fix a date and that once it is filed, | would
notify counsel. | guess about two or three days thereafter
the motion was filed and | notified counsel that | would
hear the case today.
1 will call upon you first Mr. Stalford. First, you can
address your motion for leave to appeal, nunc pro tunc.
Pa-38
MR. STALFORD: Your Honor, first | should put on the
record that the factual statements made in my brief, -
and | think | made this clear, -- and if | didn’t, | attempted
to in my brief, -- are made based upon those facts or
those pieces of information that | could put together on
the short notice that | had to work on this matter.
If there are any inaccuracies, they were not intentional,
they were not made in any way to try and thwart justice
or to misrepresent things to the Court. But | was in a
position of having limited amounts of time. Mr. Butler who
was in a trial on a murder case, and he seems to be
the man most familiar with this from the State’s point
of view.
i was not party to the initial matters and the initial
proceedings on this, -- and | say that only in the fact
that | didn’t have the chance to be there, to know what
was gding on, and to have first-hand knowledge.
So as far as factual inaccuracies, -- they are not made
intentionally, they are not made to thwart justice as we
seem to glean from Mr. Moore’s brief. But they are made
because that was the best information | could get at the
time.
With regard to my motion for leave to appeal, -- first
| think it comes in two parts. One, am | the right party
to be here? That is, am | as the County Prosecutor's
representative, the right person to be standing befcre
Your Honor?
In that regard, | would bring up two points. One, as
the rule states, on all appeals to the Law Division, on
Pa-39
municipal court matters, -- involving disorderly persons
and motor vehicle offenses, -- the Court Prosecutor is
the representative of the State.
If we were to follow the procedure Mr. Moore seems
to be advocating in his brief, -- it would be up to one
of the municipal prosecuter or a municipal prosecutor
to actually bring the motion for leave to appeal. That
having been granted, to step aside and have the County
Prosecutor ther: walk in and actually argue the merits
of the appeal.
| submit that that is a bifurcated process which is not
the intent of the statute. The statute says that the County
Prosecutor is to represent the State on appeal. It means
all aspects of the appeal, which would include the motion
for leave to appeal, because it is being brought to the
same court.
lf we were to have that process that Mr. Moore seems
to be advocating today in this Court, Mr. Butler would
be standing here now arguing for leave to appeal, then
Mr. Butler and | would switch places. And | would come
forward and Mr. Butler would retire. It seems to be an
awkward and not what was intended by the Statute.
The second point is, is the County Prosecutor entitled
to bring leave to appeal under these circumstances? |
submit that the County Prosecutor has a supervisory role
in all matters having to do with criminal and quasi-criminal
matters in the County of Monmouth, by constitutional man-
date. He is, -- that is, the County Prosecutor, the chief
law enforcement office of the County, -- that he has the
authority to supercede a municipal prosecutor in all matters
Pa-40
relating to those statutes which -- statutes and enactments
which deal with State Legislature.
| would not say that if we were here on a municipal
ordinance violation. That being so, | would submit that
the County Prosecutor is in fact, the proper authority to
bring a motion for leave to appeal, -- to bring this matter,
to bring any matter, and to present any matter involving
State statutes to the courts, -- whether it be the Superior
Court, Law Division or the municipal courts, if the County
Prosecutor so desires.
The motion for leave to appeal is brought on a nunc
pro tunc basis, because in fact, if we count the days
from the date that orders were entered by Judge Pappa,
-- | am in fact ten days, -- that is, the State is ten days
out of time. | would submit that there is good cause
to leave to grant the motion nunc pro tunc because the
County Prosecutor’s Office acted as expeditiously as pos-
sible under the circumstances, in that we knew nothing
about this matter until June 1st., when | received a cover
letter from Judge Pappa, which was directed | believe
to Mr. Moore and possibly to all the parties, enclosing
signed orders.
That is the first notice, -- the first time anyone had
brought anything to the attention of the Prosecutor's Office.
THE COURT: Why did he send that to you Mr. Stalford?
MR. STALFORD: | have no idea and | have not discussed
that with Judge Pappa. | did note that | was cc’d on
the letters and the enclosed orders.
Pa-44
THE COURT: | was curious to know how you learned
about this. You just explained it to me. Okay, go ahead.
MR. STALFORD: That is it. That was the first time,
-- | didn't know anything that happened in municipal court.
| was not noticed on the motions that Mr. Moore brought,
-- and | say that only for the fact that | didn’t have notice.
THE COURT: All right.
MR. STALFORD: Not from any other standpoint. | didn’t
know it was argued. | didn’t know it was pending. No
one had brought it to your attention. Anyone in my office
to my knowledge, -- and | am the person in the Prosecutor’s
Office who would be made aware of these things.
So, at that time, that was my first time, first information,
first knowledge of what was going on. And in fact, the
motion was filed within ten days of that date.
THE COURT: Let’s move on to the next issue, -- con-
solidation.
MR. STALFORD: We have a situation Your Honor where
a municipal court judge has taken four cases, in four
separate towns, and consolidated them into one proceed-
ing. Not because of conflict, not because the judge of
Town A can’t here the case, and therefore, it has been
sent to Town B to be heard, on some reciprocal agreement
to the towns, but on the basis of a common issue.
| submit that there is no authority in municipal court
anyone can point to, that allows a municipal court judge
to do that. | think what we have to do is, --
Pa-42
THE COURT: If he couldn't do it, could | do it? In
other words, can it be done by anyone?
MR. STALFORD: | don’t see any authority anywhere
in the rules that says that anybody can do it. But | think
if anyone can do it, it would have to be brought to a
supervisory judge; that is, a Superior Court, Law Division
Judge or higher.
And | say that because your jurisdiction; that is, the
Superior Court, Law Division extends not only throughout
the County, but in fact, throughout the State. Judge
Pappa’s jurisdiction sitting in Asbury Park is limited to
the boundaries of Asbury Park. His jurisdiction in Deal
is limited to the boundaries in Deal, and so it is in South
Belmar, and in Allenhurst. He has no authority over those
other cases.
So, Sitting as the Asbury Court judge, he has no authority
to consolidate any other case into that Asbury Park case,
or with that case.
Your Honor, as a Superior Court judge has authority
over matters involving Asbury Park, Allenhurst, South Bel-
mar and Deal. And if there is any justification or authority
in the statutes, or in our case law to do a consolidation
under any circumstances, it would lie within Your Honor.
And | would submit that there is some precedent for
consolidating matters. It was done a few years ago in
another case involving Mr. Moore, -- and | believe its
caption, State versus Lopat, which eventually gave rise
to Romano vs. Kimmelman case which also was attacking
the breathalyzer. |
-
Pa-43
But the authority | would submit has to lie within the
Law Division.
THE COURT: When were those cases consolidated?
MR. STALFORD: | believe, -- in one of Judge Horan’s
courts, and | am not sure whether it was Atlantic Highlands
or one of the other, -- Mr. Moore would probably be able
to help us. But there were a series of defendants in the
Lopat case.
THE COURT: Was there any objection to that con-
solidation?
MR. STALFORD: | would have to rely on Mr. Moore.
| was not a member of the Prosecutor’s Office at the
time, and | don’t know. | know that there was intervention
eventually by the Prosecutor, and | believe at some point,
the Attorney General's Office. And eventually the Attorney
General took over the whole case, as far as the State
was concerned.
So, there is no authority. There is no way that you
can extend a municipal court judge’s authority to do what
was Gone there. if Mr. Moore wants to bring this issue
up, he can raise it in any one of these cases. If he wants
to raise it in all the cases, he has to bring some action
into the Law Division to somehow bring all the cases
together to hear the issue.
The only issue left, -- the only part of this appeal that
is left, is the actual issue which Mr. Moore wants to raise.
And as | understand it and again, this has been based
on representation or information gathered by me, and
it is not in any way by discussions or representations
made by Mr. Moore to me or by anybody in his office.
The issue underlying all of this is an attack on the
integrity, the principles upon which the breathalyzer
machine operates. | would submit that if we look at the
plain clear language and order in Romano vs. Kimmelman,
we find that such an attack is not permitted without sone
action by the Supreme Court of New Jersey.
The Supreme Court has acted in Romano versus Kim-
meiman. It has mandated, ordered, that judicial notice
of the accuracy of the machine shall be judicially noticed
by lower coucrts. There wasn't any discretion, any leeway
left within the lower courts. Judicial notice shall, - man-
datory language.
The other parts of the order in Romano versus Kim-
meiman which deal with the proper operation of the
machine, -- | would submit that what they are talking
about there, is was the machine properly tested for its
internal workings like a radar machine is tested to be
properly operating on the day in question.
In other words, was there a pre and post test spot
check of the operation of the machine. Was it operating
properly? Was the ampule, --
THE COURT. Is this something you should be arguing
before the municipal court judge and not before me now?
MR. STALFORD: Well, the municipal court judge has
already ruled that won't be hearings. So, the appeal is
now on whether there should be hearings. This should
Pa-45
aenaniemimaiiaaaasiilel
The municipal court has ruled that there shall be hear-
ings and that is what | gleaned from the orders.
THE COURT: We will find out from those that were
down there exactly what is going on. As you say, you
got this all second-hand.
MR. STALFORD: Absolutely. | have no first hand
knowledge of what happen ed.
THE COURT: Okay, anything else?
MR. STALFORD: Just if | can finish what | was saying,--
THE COURT: Sorry.
MR. STALFORD: The Supreme Court was talking in,
the machine must be operating properly, were the spot
checks, -- where the coordinator is checking the machine
and making sure that it was giving a .10 reading when
a simulator one .10 solution is put in, -- that there was
no fault in the mechanics of the machine, -- not the un-
derlying principles, not the basis of the machine. That
has been judicially noticed. But, is it functioning? Is the
procedure of the machine operating properiy? Are the
mechanics of it working properly? Is the mechanics of
Pa-46
Pr ee a a —_——- = tte ti i el i ee
- ne = = a es 4 . ae a aa
the ampule properly constituted, and is the operator duly
certified to operate the machine?
Those are the parts that the State must prove on each
individual occasion, -- not the underlying principles of the
machine, -- the scientific principles upon which the machine
operates or gives its reading.
And | submit that is, if | understand it, the attack which
Mr. Moore wants to bring. And | submit that the municipal
court is the wrong place to be bringing that attack. Thank
you.
THE COURT: The Order of Consolidation that you refer
to states, “and it appearing to the Court that all of them",
meaning all of these four cases, “involve claims and defen-
ses based on each case upon the, one, accuracy and
reliability of breath testing machines, -~- methodology,
science and fact. Incompetency and admissibility of breath
testing procedures and systems"
And that is what you are objecting to, is that correct?
MR. STALFORD: Yes, sir.
THE COURT: Okay, Mr. Butler, what is your position?
You are the Prosecutor in Asbury Park, is that correct?
MR. BUTLER: That is correct Your Honor.
THE COURT: Have you, at any time, discussed this
case with the other prosecutors in Deal and South Belmar
and Allenhurst?
Pa-47
MR. BUTLER: Yes, | have Your Honor. Initially when
Mr. Moore originally had brought this application before
Judge Pappa, he had a case in each of the four
municipalities where Judge Pappa sits. Each of the
Prosecutors were noticed that this particular motion was
going to be made, -- the postion for consolidation and
the arguments which Mr. Moore espoused with reference
to this matter.
And on the particular date that the motion was argued,
Richard Mills appeared in Court and he consented to
the application as well as the consolidation as well as
| did. Mr. Shore and Mr. Gallager were also noticed and
they had presented no objection with reference to this
particular matter being consolidated.
Prior to appearing in Court, | would just like Your Honor
to know the reason why, when | was approached by
Mr. Pascarella and Mr. Moore to move this matter in the
Asbury Park Municipal Court, -- they informed me of the
potential argument they were going to make with reference
to the 2100 to one, -- the blood to breath ratio.
Well, prior to agreeing to have this application made
in Asbury Park, | had an opportunity to speak to Dr.
Tindle. Dr. Tindle is an expert with the State Police, who
we use in many drunk driving trials. When | spoke to
Dr. Tindle he informed me that the breathalyzer is based
upon the blood to breath ratio of 2100 to one, which
is the average blood to breath ratio in a person’s body.
Mr. Moore’s position and the position espoused by
Mr. Moore, and he will correct me if | am wrong, is that
everyone is not at a 2100 to one. Dr. Tindle informed
Pa-48
me that there is a possibility of a .04 variation in the
reading if the individual who is tested is less than a 2100
to one.
Of course, it would be the defense’s burden to prove
that his client was less than a 2100 to one, and then
he would have to prove what if any variation that would
have on the breathalyzer machine.
| personally thought that was a viable issue and if we
have people coming into court, -- and municipal court
is a place, -- and | hate to say this, because it is kind
of corney, -- but a place where we are trying to seek
truth and justice. And if Dr. Tindle’s information that he
provided to me was correct, and | have no reason to
doubt it, since we have use him on many drunk driving
cases. Then it is of concern to me, if we are convicting
people, -- for instance their symptoms are in fact, proper
and they don’t appear to be drunk and if their blood
to breath ratio is say 1200 to one, and the variation is
a .04 and their reading is a .10 or .11 and that would
kick it down to a .07 and not at the presumption there
between the .05 and .10 where we can still get a conviction
for drunk driving. But if their symptions are in fact accurate,
they lose the presumption, then maybe the person should
be found not guilty of drunk driving.
That was the premise that | agreed to hear this particular
situation. | consented to a consolidation because -- as
opposed to having Mr. Moore submit the experts in. four
different towns, -- we said we would just consolidate it
all in Asbury Park and | would in fact act as the Prosecutor.
And if other parties wanted to sit, they would sit. If not,
Pa-49
-- and Mr. Mills did appear. Mr. Shore and Mr. Gallagher
just wanted me to let them know what was going on.
It was agreed thet | would in fact notice the Attorney
General’s Office once | received the copies of the order.
And as a matter of fact, | spoke to Mr. Stalford as to
the person that | should in fact, contact in the Attorney
General’s Office.
The reason why | wanted to contact the Attorney
General’s Office was because | remembered years ago,
when | was in the Monmouth County Prosecutor’s Office,
| recalled in this particular courtroom, they had, -- they
were taking the machines apart and everything, and Mr.
Moore was here, and they had the State Police, - and
| can’t remember the gentleman’s name from the State
Police who was handling the case, but they argued that
particular motion up here. So, | was noticing the Attorney
General’s Office because they usually get involved when
you are talking about the reliability of the breathalyzer
machine. So that was my inciination --
THE COURT: Why weren't they noticed about this mo-
tion to consolidate?
MR. BUTLER: Because we were all consenting to that.
And we didn’t feel it was necessar y for them to notice
at that point in time because all of the municipal prosecutors
were in fact, consenting to the motion to consolidate.
THE COURT: Their concern was the reliability of the
machine as you just stated. | would have thought that
they would have notified before the fact, not after the
fact.
MR. BUTLER: Well, | was notifying them after the fact,
-- that was my decision to make. The rest of the municipal
prosecutors did not tell me whether they wanted the At-
torney General noticed or not. But | felt it appropriate
to notice the Attorney General prior to having any pretrial
memorandums. That is why | was noticing the Attorney
General. How Mr. Stalford got his notice, -- | guess the
Judge just sent a notice.
THE COURT: The judge apparently sent it to him. What
is your position on standing of the County Prosecutor?
MR. BUTLER: | think Your Honor the proper forum,
-- it should be held in municipal court. | think as far as
this whole argument, -
THE COURT: No, the standing, -- does the Prosecutor
have standing to come to bring this motion?
MR. BUTLER: To be truthful with you, | don’t know,
-- | don’t think he does. | would think it is a proper ap-
plication that should be made to the municipal court, where
it was made. All the municipal prosecutors were noticed,
two municipal prosecutors were there.
THE COURT: In other words, what you are telling me
is, that you really oppose this motion?
MR. BUTLER: In essence, | do. Because | think the
proper forum is in municipal court.
THE COURT: Does the Prosecutor have standing to
go into the municipal court and try this case if he wants
to, or any case?
Pa-51
MR. BUTLER: In essence, | think he does.
THE COURT: Okay.
MR. BUTLER: In essence, | think he does. If he wants
to do that, --
THE COURT: He has standing to go down there and
try this case, but you are telling me you don’t think he
has standing to take this appeal?
q MR. BULTER: | am going to backtrack for a moment
@ Your Honor. | am going to backtrack for a moment. In
thinking that through, the Prosecutor’s Office does have
right to go to the municipalities, so | guess he would
have standing to make this application. But | think the
proper place to make the application should be in municipal
court.
THE COURT: | think the Prosecutor has the right to’
go into municipal court, just like the Attorney General
} has the right to go into the County Prosecutor’s Office
and run the show.
MR. BUTLER: He has a right to do that. He can’t come
# down to our forum, but | think this forum is not the proper
forum to do that.
THE COURT: Mr. Moore.
MR. MOORE: Your Honor, obviously, and | am sure
you know, | talk very fast, - so if | am talking too fast,
raise your hand and | will try and stop or slow down.
First, if it please the Court, --
Pa-52
THE COURT: No, | just would tell you to make sure
that | hear everything you say, don’t talk too fast. Don’t
have me raising my hand all the time. Take your time
so | can comprehend everything you are saying.
MR. MOORE: If | sec any reflection -- | understand
that.
THE COURT: Because | maybe so intent listening to
you, | may not be able to coordinate raising my hand.
MR. MOORE: | can totally understand that, so | will
watch your eyes to make sure if there is any inflection,
if it please the Court, with relationship to some significant
intelligent statement that | will attempt to repeat.
| respectfully submit to the Court, with relationship to
the issue as to whether or not the Prosecutor has standing,
-- Obviously, if it please the Court, we are not talking
about an appeal, -- we are talking about a leave to appeal
at this state of the proceeding.
if we were talking about an appeal, there is no question
in my mind that the Prosecutor on an appeal to the County
Court may very well have standing. The . juestion is whether
or not he has the standing with relationship to the leave
to appeal under our rules.
Obviously under the circumstances, what we are talking
about is the physical appearance on notice of municipal
prosecutors who are in fact the representatives of the
State on notice, and | might add, if it please the Court,
although the defendant submitted briefs with relationship
to the authority under which we felt that the Court had
Pa-53
the power to be able to grant the consolidation, when
we did appear, physically from Mr. Gallagher, Mr. Shore,
- not only was | not privy to any conversations they
might have had with Mr. Butler, but there were no responses
from them from the point of view of opposing briefs to
the consolidation, -- no documentation whatsoever. Similar-
ly the case with Mr. Mills.
Obviously under the circumstances, the one person
we must look at is the defendant. And the defendant
is entitled to believe that people who appear on behalf
of the State have the authority to appear, which they
do. Secondly, that there is something wrong with what
may have happened before Judge Pappa. Obviously they
have certain limited period of times within which they can
take certain action. Nobody did. Nobody did.
| would respectfully submit to the Court that the question
5 has been raised as to whether or not the issues with
relationship to the prior consolidation in State v. Lopat,
whether or not that was the characterization that may
have existed in Lopat. Let me respectfully submit to the
Court that | am reading from the flysheet of the Appellate
Division and my recollection is 196 New Jersey Super,
544. If | am incorrect, then obviously under the circumstan-
ces | stand corrected.
Itis at page 11 on the flysheet, which obviously therefore
§ would be ten pages from the beginning on the recorded
Opinion. It says, -- defendants argue that that municipal
§ Court judge lacked authority to consider the suppression
of breathalyzer evidence. The argument comes late, --
| to everyone here of course, -- the State in Lopat by failing
Pa-54
to seek leave to appeal contrary ruling, accepted the
municipal court jurisdiction to hear the evidentiary matter.
in any event defendants rely on 3:5-7, which requires
application for suppression to be made to the Superior
Court only in matters involving unlawful search and seizure
-- they cite, et cetera. The suppression application in Lopat
however was not based upon the competence of the
evidence sought to be suppressed but rather on the alleged
unlawful nature of the arrest itself.
In Lopat the municipal court was concerned with the
competence of the evidence based upon the reliability
of the breathalyzer and tne conditions existing at athe
time of its use. It is entirely appropriate for a municipal
court to consider such a challenge in the manner in which
the scientific evidence was obtained, and the precautions
taken to avoid distortion.
They cite of course, State versus Wojesek (phonetic),
which | am sure Your Honor will recall. Part of that case
of course, emenated in this County. In any event, obviously
if it please the Court, there was consideration by the
Court in Romano at the Appellate Division level with
relationship to that circumstance.
That issue was not appealed by the Attorney General
either. So that when the matter did show up in the Supreme
Court, obviously that issue was the law. In any event
let me respectfully submit does he have standing? The
people who have standing, if it please the Court are the
municipal prosecutors.
Pa-55
Your Honor asked the question whether or not the
Prosecutor can go down to the municipal court and
prosecute the matter? The answer to the question is the
affirmative, yes. Obviously there are procedure with
relationship to that too, if it please the Court.
| respectfully submit there is procedures with relation-
ship to the Attorney General intervening within the County
Prosecutor’s category, and that if it please the Court is
my understanding from my experience in the Attorney
General’s Office would have required the assignment judge
as a matter of fact to take certain steps in order to do
so.
All of those procedures if it please the court, which
may have been formulated were not formulated in this
case. There is of course, very clearly with relationship
to recitation of the State’s brief an allegation that notice
was required of the County Prosecutor by my filing for
a motion of consolidation in municipal court. No so. -
| would respectfully submit that there is absolutely no
requirement with relationship to notice to those parties.
As a matter of fact, | would respectfully submit as a practical
matter, | am sure Your Honor recalls that the Superior
Court must be fed up with the Office of Francis X. Moore
filing motions before the Superior Court on a regular basis.
THE COURT: | wouldn't say that.
MR. MOORE: And in addition to that, if it please the
Court, -- | am sorry, -- and in addition to that, | would
respectfully submit there is no requirement other than
the 3:5-7 or the constitutional application.
Pa-56
The second issue if it please the Court if he has no
standing obviousi:, -- is whether or not he is of our time.
Obviously, ther is no requirement for written orders in
municipal court. That is Rule 7:4. That as a matter of
fact, the oral order is the time when it begins to run
against you. If in fact that was March 30th., and | must
add, March 30th. was a second appearance date if it
please the Court, because the Court wanted to me certain.
-- Judge Pappa did, that there in fact, had been notice
to the prosecutors of the municipalities involved.
The second question is whether or not the prosecutor's
argument concerning the jurisdiction, -- | cite, if it please
the Court, 39:5-3, which is very clear, -- all proceeds are
in the proper jurisdiction when they are before the judge
who has the jurisdiction to hear it.
Now, for the sake of the moment from the point of
view of the consolidation, let me respectfully submit to
the Court, the facts and circumstances under which it
would come about to be in Asbury Park. Number one,
the issue was presented to the Court in each of those
courts by motions with relationship to attach.
Judge Pappa called, -- as a matter of fact, even Mr.
Butler was in on the conversation when we were in cham-
bers, when Judge Pappa said, Mr. Moore, | really am
in a position where | want to hear what it is all about.
is Dr. Debowski’s .055 the proper tolerance? Is in fact,
there a methodology by which the 2100 to one breath
blood partition co-efficient ratio in fact is not the average?
ls there in fact a methodology by which the scientific
community is in a position to tell us whether or not the
Pa-57
se ak.
body temperature can be critical? Yes. Mr. Moore, | want
the experts. How do you get them in here? Judge, very
simple. All | have to do is be in a position to recognize
that | have a client who is capable of affording to pay
$28,000.
the seeker of the truth will hear the truth as to what
bury Park Municipal Court, South Belmar, Deal or
Allenhurst.
But | would respectfully submit that | will do everything
possible if it please the Court to bring in the necessary
experts. In addition, | will submit to the Court the experts
who exist throughout the country with relationship to the
blood/breath partition coefficient ratio. Mr. Moore, obvious-
ly you must make that application. Judge, | will make
it in Asbury Park. Mr. Butler was there. With Your Honor’s
permission, | will make it in Asbury Park. Fine. | make
it in Asbury Park.
The first day | appear in Asbury Park, i would respectfully
submit the Court wants to be certain the municipal
prosecutors quite justifiably were noticed. Additional
notices are transmitted, and on March 30, the Court hears
the argument.
| can remember if it please the Court that | stood up
and | was up for approximately a half hour to thirty-five
minutes with relationship to that argument. The issue of
the argument was relatively simple. Judge Pappa’'s position
Pa-5&
under the circumstances because of their expertise anc
they field in which they are involved, -- quote, unquote,
(indiscernible) that obviously to reach out bring them
in, would require that it be put for a particular day.
Judge Pappa being extremely gracioius | might add,
Mr. Moore, | think probably the better performance, --
and | think Mr. Butler was there then, -- would be to
hoid these matters on Saturday. He asked Mr. Butler would
he have any objection to it.
MR. BUTLER: | asked for it.
MR. MOORE: All right, Mr. Butler asked for it. Obviously,
if it please the Court, at that moment, -- that as a con-
venience to the Court, it causes a judicial determination
to be made by the same judge incidentally, who has the
jurisdiction of each of the four matters, -- and obviously
if it please the Court, the only inquire then left was to
determine whether or not the clients were capable of being
able to afford to pay that type of expert fee.
That is, the seeking of the truth, | would respectfully
submit that is supposed to be the empowering of municipal
court jurisdiction.
Pa-59
When | say there were four people, -- there were two
people there, there were four people noticed. in addition
to that, -- | really am somewhat confused. If the Prosecutor
wants to intervene, | welcome the opportunity for one
individual from the Prosecutor’s Office to try the case
against me, but in the proper forum.
| would respectfully submit that if Mr. Stalford wants
to come to Asbury Park as a result of the judge’s direction,
| invite him to be there. Obviously, if it please the Court,
that is not the concern. Had that been the concern, that
is relatively simple.
THE COURT: it may be after today Mr. Moore.
MR. MOORE: | would hope that he would be. But |
would hope, if it please the Court, that it is in the proper
forum in Asbury Park, and | hope that he realizes that
Mr. Butler in being gracious about making certain that
Saturdays would be the day that we could call the experts,
because of the conveniences, -- from other states, -- that
| would respectfully submit that | would anticipate hopefully
that Mr. Stalford would be in the same position as Mr.
Butler, -- and be certain that he would make himself avail-
able on Saturday morning.
Pa-60
Obviously, if it please the Court, if you don’t place
it in that forum, the question arises is this a prejudice
to the defendants? The prejudice is obvious. Mr. Downie
is a young man who is working day to day to keep hirnself
alive. When you were a defense counsel, as | am sure
Your Honor can recall, -- you were in a position where
you were saying to the client you have to pay certain
experts. The immediate reaction is, my God are they so
expensive. The second reaction is, give me some time.
Obviously Mr. Butler and Judge Pappa were being gra-
cious about it, because there is currently , -- whether
Your Honor knows and | am sure Your Honor keeps track
on a regular basis, a particular mental gyration in which
the scientific community has diversified itself into camps
deciding whether or not the per se in fact and be proven
with a 2100 to one, -- where the tolerances in some people’s
mind are zero two, zero one, zero four, zero five, and
obviously if it please the Court, | will respectfully submit
that the point of the motion in the municipal court in
Asbury Park was, by convenience, to make certain that
those experts could be produced, and that obviously the
result would come about as to the disposition that would
be proper and the truth would be known.
The next, if it please the Court is whether or not the
municipal court has the power to consolidate. Let me
respectfully submit that it is clear to me under Rule 7:4-2f,
it is please the Court, that you can try complaints together.
And under 7:4-2f, in all other matters, with the consent
of the persons charged, -- that’s me, -- the Court, --
that is Judge Pappa, for convenience may consolidate
complaints for trial.
Pa-61
What could be more convenient under 7:4-2d | would
respectfully submit, -- strike that. 7:42f, -- for the municipal
judge who sits in the same four towns to hear the same
evidences with relationship to whether or not there is
an issue of admissibility of evidence.
Don’t, -- | would respectfully submit, -- misunderstand
me. The issue, | would respectfully submit, is not quickly
paraphrased as dealing with the breathalyzer reliability.
That is not it. Under 39:4-50.3, the Attorney General has
@ responsibility to determine that the methodology and
the procedure is satisfactory. That is the statutory direction
to the Attorney General.
The question that is being resolved in Asbury Park
is that since April 7th, of 1983, when in fact, we converted
ourselves from an issue of corroborative proof or inference
from which the trier of fact would determine guilt or in-
nocence, -- by a combination of other evidences including
the resultant machine. Are we now at a point where since
April 7th, 1983 there is a different standard in the scientific
community by which the Attorney General is commis-
sioned, to determine if the methodology and procedure
which is being enforced is different from what it was when
it was used as corroborative proof.
Very simple, -- if it produces a uniform and reliable
result, it can be corroborative. Question. Does the standard
by which the statutory enactment changed change the
attitude from the point of view of the Court’s position
as to whether or not judicial notice is acceptable as to
that result?
Pa-62
The answer to the question is very clear. Justice Handler,
at page 90 of Romano vs. Kimmelman is a matter of
fact, almost, almost cautioned the attorney general by
first mentioning at page 89, the burden with relationship
to proof and then at page 90, the circumstances if it
please the Court under which it was to be concerned,
-- under which the State should have been concerned
-- my heavens. | know | can find it very quickly.
_____ And that, if it please the Court, is the language which
is reflected at the bottom of 89 and the top of 90, --
and here, in drunk driving prosecutions, a substantial bur-
den of proofs to establish the competency or admissibility
of the results of the breathalyzer test is appropriate be-
cause of the serious consequences of the breathalyzer
reading in such prosecutions. See State vs. Johnson,
which incidentally Justice Handler says, “Accordingly, in
this case, we hold that the burden of proof prescribed
under State vs. Johnson, Supra 42 New Jersey be followed
as to all conditions necessry for the admissibility of breath,
Does that sound conclusive? Of course it does not.
What he is saying is, State versus Johnson, 42 New Jersey
is still the law, and therefore, if it is, there are three criterion
set up before the admissibility of the result can come
about. |
One, that the machine is properly approved by the
statute. | have just argued that if it please the Court with
relationship to methodology. Two, that in fact the operation
technique and methodology and procedure is scientifically
reliable. Romano did not deal with the methodology and
procedure, if it please the Court. It dealt very simply with
Pa-63
the external sources which may be infused into the machine
from outside the machine.
| would respectfully submit that 2100 to one does not
deal with the machine. The machine of course is critical
to the extent that there is a, -- there is a valve, as |
am sure Your Honor knows, that collects 56.5 milliliters
of air which is exactly 140 to 2100 to one, on the belief
that the scientific community says that the average person
would have 2100 to one.
But that there is a total divergence, -- there is no u-
nanimity as to where we each stand, -- if that be true
where you are using what is called Biers Lambert Law
as to logarithmic equations which bring it back to the
alleged breath alcohol reading, -- what is the reading,
if it is an average person?
| would respectfully submit that if that reading result
would be only for average people, that the only people
who could in fact be tested on that machine is Chinese
people because there is more of them than there are
of anybody else, and they must be the average. It must
be a woman because there is more women than men,
and they probably are dead, because there is more dead
people than live.
If that is true, does the scientific commuity consider
whether or not there are standard deviations, and in fact,
average deviations.
THE COURT: All right, Mr. Moore you have five more
minutes, and | think | -
Pa-64
MR. MOORE: Thank you. Your Honor, in order to make
cetain that | don’t miss anything, is there anything that
Your Honor particularly wants me to attach significance
to?
THE COURT: It is all significant Mr. Moore. What you
think you want to call to my attention, you know, -- you
are welcome to do so. You can test the standing of the
prosecutor. You also can take the position that this motion
if you did have standing, is out of time. The position
is that under Rule 7:2-f.
MR. MOORE: 7:4-2f.
THE COURT: 7:4-2f, -- the Court has tre right to con-
solidate cases of similar facts, -- and ;you have just argued
the position as to the admissibility of evidence in municipal
court. | think you have covered everything.
MR. MOORE: Ok, that reminds me -- that reminds me
of one Your Honor. The question you raised with relation-
ship to whether or not the pretrial hearing is the proper
tribunal, --
THE COURT: Pretrial hearing is the proper tribunal?
| don’t -
MR. MOORE: Before the municipal court. Is the minicipal
court the proper tribunal to hold this type of a pretrial
hearing? And | read to you of course, --
THE COURT: The municipal court can pretry a criminal
case.
Pa-65
MR. MOORE: The other question that he raises, -
THE COURT: If it is necessary, -- there is no question
about that, and | think the prosecutor takes the position
that the municipal court judge can conduct a pretrial.
What he takes issue with is what he is going to pretry.
Right Mr. Stalford?
MR. STALFORD: Yes, Your Honor.
MR. MOORE: You mean, whether or not he is going
to pretry it? | have no objection to --
THE COURT: No, whether the municipal court judge
can pretry a case. What Mr. Stalford takes issue with
is the issues that the judge is going to pretry.
MR. MOORE: Incidentally, | would respectfully submit,
from the point of view of the pretrial is allegations in the
confines of his brief, saying that he has foreclosed. In-
cidentally, 313-1, a and b, - and Rule 8:1, | would respect-
fully submit are very clear. If the comments directly under
the rules clearly say, that the State is not foreclosed.
There is no foreclosure.
As a matter of fact, the pretrial conference if it were
to be held tomorrow in fact, | would respectfully submit
would clearly delineate the issues which would be
presented to the Court. And whether or not the standards
as to the approval which incidently is the proper evidences
which should be presented to the Court.
These are more proper | would respectfully submit than
under State vs. Lopat, which Romano vs. Kimmelman
Pa-66
Clearly in the Appellate Division level said was the proper
tribunal before which it was to be heard.
The other answer, - in State vs. Lopat, | would respect-
fully submit, -- Your Honor asked the question of the
prosecutor. | will give you the answer as | recall it. One,
was there in fact objection: Yes. The objection was raised
by the Attorney General. Question. When did the Attorney
General get involved? The Attorney General by formal
application intervened in State vs. Lopat, as a result of
a subpoena to individuals or the State service, -- they
made the application on hearing. It was heard. They were
invited in.
The issue was as to the 3:5-7, -- the same as it is
in the Appellate Division, which was raised by the Attorney
General before the municipal prosecutor, before the
municipal judge, -- at that time it was denied, it was raised
again before Judge Shebell, again the same category,
when we appeared before Judge Shebell at a later time,
and again it was raised at the Appellate Division level
in Romano.
Obviously therefore, if it please the Court, it seems
extremely clear, that the circumtances of events which
would be brought before the municipal court are the proper
ones for the court to consider. Incidentally, we don’t have
any transcript here, and we have no preliminary conference
where the issues are set out in a pretrial memorandum.
Had the court had that, tomorrow morning, -- on a
Saturday of course, the Court would have been in a position
where the issues would have been certainly categorized.
Incidentally, when he was to issue the order, for the pretrial
Pa-67
memorandum, - Mr. Stalford and the County Prosecutor,
if they wanted to intervene then would have intervened
them.
If there was an issue which was not in the category
of evidence, --
THE COURT: He didn’t know about it then Mr. Moore.
He said he didn’t learn about it until after the order was
signed.
MR. MOORE: Judge, at least two of these cases have
been up here already.
THE COURT: How can you intervene when you don't
know something is happening?
MR. MOORE: Two of these cases, have been up here
already.
THE COURT: All right, anything else Mr. Moore. | think
you have covered everything.
MR. MOORE: Thank you Your Honor. And how you
intervene if it please the Court is by making certain that
the municipai prosecutor or the county prosecutor wants
the municipal to notice him of certain events. That is the
way you do it? It is not the responsibility of the defendant.
Thank you.
THE COURT: | agree with that.
MR. STALFORD: Your Honor, may | respond briefly,
-- very briefly.
Pa-68
lial
THE COURT: Yes.
MR. STALFORD: | would bring to the Court’s attention
that the Lopat decision which Mr. Moore cites predates
Romano vs. Kimmelman, and in addition is an Appellate
Division decision, which wouid be totally overruled in any
way that conflicts with Romano vs. Kimmelman.
With regard to supercession, -- supercession is not
done with the intervention of any judge. Supercession
because both the Attorney General and the County
Prosecutor are constitutional officers, -- does not require
the Court’s intervention, aid or assistance. It is only if
intervention in the case is required, -- then application
to the court is necessary.
THE COURT: Maybe after what you have heard here
today, you might want to do that.
MR. STALFORD: That may be, -- with regard to Mr.
Moore’s requirement, -- again, he misstates, misrepresents
what | put in my brief. | made it clear that the beginning
of this hearing, -- | put in my brief what | did only to
note why time limits were not met.
| was not noticed, |, in no way, implied, inferred or
required Mr Moore to notice my office. If he didn’t and
he violated a rule that is one thing, but | haven't said
that in this case. Mr. Moore seems to keep thinking that
| did.
And on that same line, if Mr. Moore is insisting that
the Attorney General has the responsibility for the integrity
of this machine, it seems to me, and he cites the statute
Pa-69
to that effect, -- it seems to me clearly the Attorney General
should have been made a party to all of this, -- and
they were.
As far as prejudice to his defendants because we are
going to try a matter in municipal court, -- or something,
-- | don’t understand his argument.
THE COURT: Prejudice says that they can’t afford
$28,000 separately. They can maybe afford it jointly. So,
he wants to try them together and split the expenses.
That is prejudice.
MR. STALFORD: Well, but he says it in terms of, |
want to have the hearing on Saturday. It seems to me
Judge, that Saturdays occur once a week, and that if
an expert witness from Nebraska, --
THE COURT: He didn’t ask for Saturday, somebody
else asked for Saturday.
MR. STALFORD: But he is pushing Saturday as the
proper time. It seems to me that a Superior Court judge
who hears a case five days a week, would be an easier
forum to try a case like this, than a municipal court judge,
who sits Saturdays.
THE COURT: | am not bringing the case up here Mr.
Stalford.
MR. STALFORD: As far as 7:4-2f is concerned, it is
Clear that the intent of that rule has nothing to do with
cases in separate municipalities. As raised in my brief,
if we had four separate judges, -- could Judge Pappa
Pa-70
have done this? That is the criteria. If one Case was in
Belmar with Judge Broadbelt, and another case was in
Manalapan with Judge Thinkler, and anothier case was
in Middletown, with Judge Steib, -- could Judge Pappa
have done this?
THE COURT: No, he did it because he is the judge
MR. STALFORD: No, and | submit absolutely not.
THE COURT: -- in all four of these courts, South Belmar,
Deal and Allenhurst and Asbury.
MR. STALFORD: Right, but | say the criteria for whether
consolidation be done has to lie in the sense of what
| just put forth because these are limited, -- courts of
limited jurisdiction. As the judge of any one town he has
no jurisdiction over the cases in another town. 7
As far as the methodology | raised that, and that is
all | have. Thank you.
THE COURT: | didn’t hear the last thing you said, |
am sorry.
MR. STALFORD: | don’t have anything further. | was
about to start another point.
THE COURT: Anything else Mr. Butler?
MR. BUTLER: No, Your Honor.
THE COURT: Anything else Mr. Moore?
Pa-71
MR. MOORE: No, Your Honor. Thank you.
THE COURT: The prosecutor of Monmouth County
seeks leave to appeal, nunc pro tunc from an order of
the Asbury Park Munic’pal Court dated May 20th., 1988.
Municipal Court Judge Pappa consolidated four DWI cases
originating from four separate municipalities; Deal, Allen-
hurst, South Belmar and Asbury Park.
The order sets a date for a pretrial conference, required
pretrial memoranda from each party and set a date for
the preliminary pretrial hearing. The procedural history
of the cases are as follows, -- Andrew Downie, Daniel
Matthews, Martin Marotta and Charles Carroll have each
been charged with a violation of NJSA 39:4-50, driving
under the influence of alcohol.
They were charged in separate municipalities of Asbury
Park, South Belmar, Deal and Allenhurst. Each defendant
is represented by Francis X. Moore. Judge Pappa is the
municipal court judge in each of these municipalities.
The defendant moved before Judge Pappa on March
1988 to consolidate the four cases for the purposes of
a pretrial hearing on the issue of admissibility of
breathalyzer reading evidence, to exclude all evidence
of the breathalyzer test results at a trial of their respective
cases for pretrial conference and for a hearing. On May
20th., 1988 Judge Pappa signed the order consolidating
these matters.
The appeal before me today raises four issues, -- |
will address each one separately. First, does the Monmouth
County Prosecutor have standing to represent the State
on this appeal? Rule 7:4-4b states in pertinent part, “Ap-
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pearance at prosecution. Whenever his judgment, the in-
terests of justice so require, upon the request of the Court,
the Attorney General, County Prosecutor, Municipa! Court
Prosecutor or municipal attorney as the case may be,
may appear in any court on behalf of the State or the
municipality and conduct a prosecution of any action.
But if the Attorney General, County or Municipal Court
Prosecutor or municipal attorney does not appear, any
attorney may appear in behalf of any complaining witness
to prosecute the action for and on behalf of the State
or the municipality."
It is clear from this Rule that the Monmouth County
Prosecutor could have appeared in this action and
prosecuted the named defendants. The County Prosecutor
has the power to represent the State on all matters arising
in Monmouth County.
Rule 3:24A states, “Either the prosecuting attorney or
the defendant may seek leave to appeal to the Superior
Court, Law Division from an Interiocutory Order entered
before trial by a court of limited criminal jurisdiction.
Prosecuting attorney is defined by Rule 3:23-9c as being
the County Prosecutor in all the cases. Therefore, this
Court is satisfied that the Monmouth County Prosecutor
is the proper entity to represent the State on this appeal.
The County Prosecutor is the entity that usually undertakes
the representation of the State’s interest when a matter
is appealed.
The case before me today is no different. Defendant's
contention that only the municipal prosecutor could have
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sought leave to appeal this order, -- appeal this order
is without merit. Even if one of the municipal prosecutors
had requested leave to appeal in the Superior Court, their
interests would still be represented by the County once
the matter was brought to Freehold.
Second issue, -- should leave to appeal nunc pro tunc
be granted. Rule 3:24c is clear. Appeals pursuant to this
rule shall be taken within ten days after the entry of such
order. Judge Pappa entered his order on May 20th., 1988.
The Prosecutor’s Notice of Motion was dated June 10th..,
1988.
The Appellate Diviision in State v. Burton, 207 NJ Super,
53 Appellate Division, 1986 however held that Rule 3:24
may be enlarged. The State is therefore not confined
to the ten day time limit set forth in the rule. The Court
did state that, the longest extension should only be twenty
days. Thus it would appear that the State is within the
time frame set forth by the Court in Burton.
Accordingly, | grant the State leave to appeal nunc
pro tunc, to challenge the May 20th. order.
Third issue. Should these matters have been con-
solidated? Rule 4:38 states in pertinent part, "Actions in-
volving a common question of law and fact arising out
of the same transaction may be consolidated by the Court."
Further. Rule 7:4-2a which defendant relies upon states
the Court may order that two or more complaints be
tried together if the offenses arose out of the same facts
and circumstances.
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Defendant alleges that these matters should be con-
solidated because they involve common questions of law.
This however is not enough. For a court to permit con-
solidation, there must exist common questions of law and
fact. These four matters each involve different defendants
in different municipalities, different police officers, and
presumably different blood alocho! readings, and
presumably different circumstances arising during the ar-
rest.
| therefore find that it was completely incorrect of Judge
Pappa to have consolidated these cases. There is ab-
solutely no factual similarity alleged between them. The
cases are related, but for defendant counsei’s intent to
raise the same defense. This is not sufficient for con-
solidation.
Accordingly, | hereby deconsolidate these four cases.
The cases should now proceed in separate trials in each
of their respective municipalities.
Four, is the municipal court the proper forum for a
hearing on the issues raised? The State requests that
| preclude the applicable municipal courts from holding
hearings on the scientific reliability of the breathalyzer
in question.
The State relies on a recent Supreme Court decision
in Romano vs. Kimmelman, 96 NJ 66, 1984 which deter-
mined that the Model 900, 900A breathalyzer machine
should be considered scientifically reliable for the purposes
of determining the contents of blood alcohol.
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The Court stated, "Such scientific reliability shall be
the subject of judicial notice in a trial of all cases under
39:4-50." This Court finds merit in the State’s argument.
It is clear that the defendants raised more than just one
defense with respect to the breathalyzer.
The Order of Consolidation states, "The above entitled
actions have come on for pretrial hearing as to Rule 7:4-2D
and 3:12-1, and it appearing to the Court that all of them
involve claims and defenses based in each case upon
one, accuracy and reliability of breath testing machines,
methodology, science and fact, and two, incompetency
and inadmissibility of breath testing procedures and sys-
tems."
| find that the defense of the incompetency and in-
admissibility of breath testing procedures is clearly an
initial issue that is within the jurisdiction of the municipal
court. The Romano cases strictly limited its holding to
the scientific reliability of the machine.
This issue should not be raised in any trial court pursuant
to Romano. | trust that Judge Pappa will rule accordingly
under a Rule 8 hearing.
As for the second issue, | decline to order Judge Pappa
on how to rule. Evidence will be presented to him. He
will consider testimony, and it is the municipal court’s
function and decision as to the competency and admis-
sibility of the procedures used, not this Court's.
If the County Prosecutor is concerned with what takes
place in municipal court, he certainly has the authority
to supercede the local prosecutor and prosecute the case.
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Accordingly, | deny the State’s request to preclude the
municipal court from conducting the requested hearings.
It is their decision as to whether certain evidence is ad-
missible pursuant to the dictates of Romano.
in conclusion, this Court having granted the Prosecutor
leave to appeal does hereby deconsolidate the cases
herein. These matters should not proceed separately in
each district municipality. It will be up to Judge Pappa
to decide whether the evidence submitted by the defendant
is admissible pursuant to a Rule 8 hearing.
Mr. Stalford, | will ask that you prepare the form, --
you submitted some order. | guess | can probably use
the one you submitted, and fix it up. Well, actually your
order is only for the Nunc pro tunc appeal. | think | will
need another order on the other two issues.
MR. STALFORD: If Your Honor
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