# Petition for Writ of Certiorari — Downie v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1646%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 819 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1646%3A1. Public record. Not legal advice.