Petition for Writ of Certiorari — Bertola v. New Jersey

Supreme Court brief1990

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DONALD D. BERTOLA,

THE STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEW JERSEY

Thomas E. Doig, Jr.

Counsel of Record

THOMAS E. DOIG, JR., P.C.

106 Abbington Orive

East Windsor, NJ 08520

= 443-1200

ttorneys tor Petitioner

QUESTIONS PRESENTED

}. Whether a "per se" definition of

intoxication as determined by a scientific

instrument violates a defendant's due

process rights pursuant to the Fifth and

Fourteenth Amendments of the United States

Constitution.

2. Whether a scientific device such

as the breathalyzer which has_ been

determined to overestimate or underestimate

a true blood alcohol level in 86% of the

cases may be used to conclusively determine

the guilt or inncocence of a driver accused

of drunken driving.

36 Whether, for the sole purpose of

obtaining Department of. Transportation

grants, the State of New Jersey may pass a

law which deprives a defendant of his due

process rights under the Fifth and

Fourteenth Amendments, as well as depriving

a defendant of his Sixth Amendment right

to a fair and impartial trial.

TABLE OF CONTENTS

Opinions below.......ccccccccccccces sear @

SUBISSASEI ec wc cccccccevccccccocccesesese

List Of Parties. .ccccccccccccesccccscccce 4

Constitutional and Statutory Provisions

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Reasons for Granting the Petition...... 13

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TABLE OF AUTHORITIES

Cases

Rock v. Arkansas, 483 U.S. 44, 107

S,. Ct, 2704, 97 L.Ed. 2d. 37 (1987).... 18

Romano v. Kimmelman, 96 N.J. 66 (1984). 10

Sandstrom v. Montana, 99 S. Ct, 2450

442 U.S. 510, 61 LL. Ed. 20d 39 (1979)... 18

State v. Downie, 229 N.J. Super. 207

(App. DEV. 1988) -ccccccvccecccseces 10,11

, 117 NJ. 450

et eC uk a vet edmeenewsaen Ree aie

, 87 NeJ. 204

Rae ce cee Cee ee be ceo aes nce eue OO

, 229 NJ. Super 190

Cl GEV ce BEE) oc ewccecvccscccesesvsesve $510

| Ulster County v. Allen, 442 U.S. 140

| C1DTD) cccccccccccccccccccccccccescccese As

i: —=

— OOOO Ee a Oe Tt ln

Constitution and Statutes:

United States Constitution

Fifth Amendment............ 4,14

Sinth AmenGMenS. ccccsccees $,18

Fourteenth Amendment....... 5,14

NiJ-Se.Ae 3954-50. wee eeees 5,7,14

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NO.

DONALD D. BERTOLA, PETITIONER

Vv.

STATE OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

The petitioner, Donald D. Bertola,

respectfully requests that a Writ of

Certiorari issue to review the judgment of

the Supreme Court of the State of New

Jersey denying a petition for

certification, thereby affirming the

conviction of the defendant of a violation

of driving under the influence of alcohol.

— ave Sle

OPINIONS BELOW

The opinion of the trial court,

(Municipal level is unpublished but appears

as Appendix B, page 22a through 25. The

matter was then appealed to the Monmouth

County Court on a trial de novo and the

opinion appears as Appendix B, page 26a

through 28a. The petitioner then appealed

to the Appellate Division of the New Jersey

Superior Court and the opinion appears as

Appendix B pages 30a through 36a.

The petitioner applied for

certification to the New Jersey Supreme

Court which was denied Appendix B, page

29a. None of the above opinions were

published. However, directly applicable to

this case and decided only one week prior

is the case of State v. Downie published at

117 Nad. 450 (1990).

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JURISDICTION

1. The judgment of the Supreme Court

of New Jersey was entered on February 7,

1990 (Appendix B, infra, 37a). It is final

by its terms.

2. The federal question was raised

by way of motion at the municipal court

level, again in the Appellate Division

(Appendix. B, 35a) and again in

petitioner's application for certification

to the New Jersey Supreme Court as

reproduced in Appendix C pages 38a - 60a.

LIST OF PARTIES

The parties listed in the caption are

the only parties involved; however the

Governor of the State of New Jersey and

the New Jersey Attorney General have been

put on notice by service of a copy of this

petition upon each.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United

States Constitution provides in relevant

part:

No person * * * shall be

deprived of life, liberty, or

property, without due process of

law * * *,

The Sixth Amendment to the United

States Constitution provides in relevant

part:

In all criminal prosecutions

the accused shall enjoy the right

to * * * be confronted with the

witnesses against hin.

The Fourteenth Amendment to the United

States Constitution provides in relevant

part:

No state shall make or enforce

any law which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny any person within

its jurisdiction the equal

protection of the laws.

Paragraph (a) of the New Jersey

drunken driving laws, N.J.S.A. 39:4-50

provides in relevant part:

A person who operates a motor

vehicle with a blood alcohol

concentration of 0.10% or more by

weight of alcohol in the defen-

dant's blood * * * shall be

subject:

(1) For the first offense ***

STATEMENT

1. The defendant was arrested for

drunken driving in the Township of

Marlboro, in the County of Monmouth and

State of New Jersey on March 22, 1987. In

a trial at the municipal court level both

-the petitioner and the State of New Jersey

introduced expert scientific testimony as

to the reliability of a breath-alcohol

testing device known as the "breathalyzer"

and in particular testimony relative to the

variability of the blood-breath ratio and

other variables affecting that reliability.

As a result of that testimony the judge

found that these variables could affect the

instrument's reading as it concerned the

individual defendant, but incorrectly

concluded that the defendant must come

forward with evidence excluding him from

the average class of individuals for whom

the breathalyzer might work. As a result,

and because this defendant had a reading of

0.12% blood alcohol, the petitioner was

convicted of driving under the influence

under the "per se" portion of the

applicable New Jersey Statute (Appendix B

infra, 5a-6a).

2. At about the same time, Francis

X. Moore, Esquire, an attorney also

practicing in Monmouth County convinced the

assignment judge of that county’ to

consolidate four municipal court cases from

various municipalities within the county

for purposes of conducting an evidentiary

hearing as to the reliability of the

breathalyzer as applied in those cases.

The ostensible purpose was to conserve

resources. The Monmouth County Prosecutor

objected to this procedure and took an

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interlocutory appeal to the New Jersey

Appellate Division contending that the

breathalyzer had previously been found to

be reliable and that neither the municipal

courts nor the superior courts had any

right to take evidence as to reliability.

3. Also at about the same time the

assignment judge of Burlington County, New

Jersey entertained an appeal from a

municipal court conviction and conducted an

evidentiary hearing which resulted in a

finding that the breathalyzer was indeed

unreliable and that at a minimum, at least

0.055% should be deducted from every

reading to get a more accurate picture of

the true blood/breath alcohol reading of

any given defendant. Vv. inley,

229 N.J. Super 190 (Law Div. 1988).

—E

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4. The petitioner proceeded by

taking an appeal to the Law Division of the

Superior Court of New Jersey pursuant to a

de novo procedure as required by the Rules

of Court. At this hearing the Superior

Court judge, John A. Ricciardi, refused to

look at any of the scientific testimony and

again convicted the defendant of a per se"

violation of the statute. He also went on

to convict the petitioner on the basis of

other evidence adduced at trial, saying

that such evidence sustained the conviction

absent the breathalyzer reading. However,

Judge Ricciardi commented on the pending

interlocutory appeal at the Appellate

Division, saying that if it was determined

that the scientific evidence should be

considered, he would review the

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petitioner's case in a different light and

reconsider his finding in view of that

ruling. (Appendix B, infra, 26a-28a).

5. The Appellate Division of the

Superior Court finally addressed the

interlocutory appeal and determined that

the scientific arguments and other expert

testimony raised serious question as to the

reliability of the breathalyzer, but that

in light of the New Jersey Supreme Court's

prior decisions, it could not pass on the

reliability of the machine, thus overruling

McGinley, supra. However, in doing so it

requested that the New Jersey Supreme Court

look at the issue. It gave the various

defendants sufficient time to petition the

New Jersey Supreme Court to address the

issue, which was subsequently accomplished

by the said defendants. State v. Downie,

229 N.J. Super. 207 (App. Div. 1988).

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6. The petitioner learned of the

grant of certification and while having

filed an appeal to the Appellate Division,

he also sought direct certification to the

New Jersey Supreme Court and asked for

consolidation with Downie, supra. This was

denied (Appendix B, infra, 10a). Oral

argument was had and the Appellate

Division, again refusing to address the

issue of reliability as raised by the

scientific evidence, convicted the

petitioner on the basis of the extrinsic

evidence, avoiding the “per se" violation

altogether. (Appendix B, infra, 30a - 36a)

7. In entertaining the four cases

consolidated under Downie, supra, the New

Jersey Supreme Court elected to conduct an

evidentiary hearing under the auspices of

a special master-as they had previously

done when the question of the effect of

radio frequency interference was raised as

a challenge to the reliability of the

breathalyzer. See Romano v. Kimmelman, 95

N.J. 66 (1984). The matter was then

assigned to Judge Patrick J. McGann, Jr.,

of the Law Division of the Superior Court.

Judge McGann conducted a multi-day

examination, wherein ten noted experts in

the field testified as to the reliability

of the breathalyzer. Thereafter, he

prepared a written synopsis of the

testimony, an overview of the hearing and

seven conclusions of fact. This report is

included in its entirety as Appendix D,

pages 62a - 105a.

8. The petitioner again sought

certification to the New Jersey Supreme

Court. However, on October 23, 1989 the

Supreme Court of New Jersey took final

arguments in light of the master's report

and conclusions of fact and set forth their

decision on January 31, 1990, finding that

the breathalyzer was reliable, and that

lower courts must henceforth take judicial

notice of that reliability. The decision

in that matter is State v. Downie, 117 N.J.

450 (1990) Seven days after announcing

that decision, the petitioner's application

for certification was denied (Appendix B,

infra 37a).

REASONS FOR GRANTING THE PETITION

This case presents the simple

questions of whether trial by machine can

constitute due process under the United

States Constitution, and whether the

inability to refute the evidence produced

by the machine violates a defendant's right

to present witnesses and to confront those

witnesses presented against hin. There

can be no question that the New Jersey

Statute now is a "per se" statute (Appendix

A, infra, 5a - 18a) and that this "per se"

proscription is a result of the

Legislature's desire to obtain Federal

Highway grants which mandate the inclusion

of such a statute as a prerequisite to

obtaining these funds (Appendix A, infra,

18a). The question that must be asked is

whether this constitutes sufficient state

interest to warrant the suspension of due

process as guaranteed by the Fifth and

Fourteenth Amendments.

A more serious question that deserves

resolution is whether, in light of

scientific testimony to the contrary, the

State of New Jersey can suspend a

defendant's right to present evidence and

challenge the findings of the breathalyzer.

At the evidentiary hearing conducted by

Judge McGann, Dr. Robert Borkenstein, the

recognized "father" of the breathalyzer,

testified that in designing the

breathalyzer, the device was not intended

to be used as a "per se" device, but it's

results only as another piece of evidence

for consideration by the trier of fact.

(Appendix D, infra, 77a). Another expert,

Dr. Dubowski, whom the trial court found to

be the most impressive witness,

emphatically asserted that the breathalyzer

should never be used as a "per se" device.

Despite this testimony, the New Jersey

Supreme Court pressed forward it's decision

to affirm the reliability of the machine

and it's use to substantiate "per se"

violations of the statute. The Court

recognized that the machine could

wrongfully convict 2.4 percent of those

accused. The Court recognized that there

were multiple factors, including the

accused's general health, sex, body

temperature, a women's menstrual cycle,

medication, oral contraceptives and an

individual's hematocrit which could affect

the machine's reading. See Downie, supra,

462. Recent scientific studies have also

revealed that the ingestion of diet soda

and diet foods, as well as exposure to

industrial chemicals, can cause a

measurable breathalyzer reading without the

ingestion of alcohol.

If the "per se" portion of the New

Jersey Statute is allowed to stand, it

will, in fact impair the ability of the

ultimate trier of fact to impartially

determine the guilt or innocence of an

accused. Both the New Jersey Supreme

Court and this Court have already

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determined that the ultimate test of any

presumptive device's constitutional

validity remains constant: the device must

not undermine the factfinder's

responsibility at trial, based on evidence

adduced by the State, to find ultimate

facts beyond a reasonable doubt. Ulster

County v. Allen, 442 U.S. 140 (1979), State

v. Ingenito, 87 N.J. 204 (1981).

Prior to their 1984 amendment, the New

Jersey drunken driving statutes treated a

breathalyzer reading of 0.10% or greater as

a rebuttable presumption. After the

amendment such a reading became a

conclusive or mandatory presumption

incapable of being rebutted. It is

respectfully submitted that this is.

absolutely unconstitutional as it allows

the State of New Jersey to prove guilt

beyond a reasonable doubt simply by

relying on a rule of law. Sandstrom v.

Montana, 99 S. Ct. 2450, 442 U.S. 510, 61

L. Ed. 2d 39 (1979). The holding of the

New Jersey Supreme Court deprives the

defendant of the right to call witnesses in

violation of his Sixth Amendment rights Cf.

Rock v. Arkansas, 483 U.S. 44, 107 S.Ct.

2704, 97 L. Ed. 2d. 37 (1987).

CONCLUSION

The petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

‘Thomas E. Doig, Jr.

Attorney for the Petitioner

APPENDIX A

CONSTITUTIONAL PROVISIONS AND STATUTES

AMENDMENT [V. ]

Capital crimes; double jeopardy; self-

incrimination; due process; just

compensation for property

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offensce to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use, without just

compenstaion.

AMENDMENT [VI. ]

Jury trial for crimes, and procedural

rights

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

to his favor, and to have the Assistance of

Counsel for his defensce.

AMENDMENT [XIV. ]

i. Citizenship rights not to be

abridged by states

Section 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

NEW JERSEY DRUNKEN DRIVING STATUTE

39:4-50 Operating or allowing

operation by person under influence of

liquor or drugs; penalties; alcohol

education or rehabilitation; collection of

driver's license; rights of discovery;

intoxicated driver resource centers.

(a) A person who operates a motor

vehicle while under the influence of

intoxicating liquor, narcotic,

hallucinogenic or habit-producing drug, or

operates a motor vehicle with a blood

alcohol concentration of 0.10% or more by

weight of alcohol in the defendant's blood

or permits another person who is under the

influence of intoxicating liguor, narcotic,

hallucinogenic or habit-producing drug to

operate a motor vehicle owned by him or in

his custody or control or permits another

to operate a motor vehicle with a blood

alcohol concentration of 0.10% or more by

weight of alcohol in the defendant's blood,

shall be subject:

(1) For the first offense, to a fine

of not less than $250.00 nor more than

$400.00 and a period of detainment of not

less than 12 hours nor more than 48 hours

spent during two consecutive days of not

less than six hours each day and served as

prescribed by the program requirements of

the Intoxicated Driver Resource Centers

established under subsection (f) of this

section and, in the discretion of the

court, a term of imprisonment of not more

than 30 days and shall forthwith forfeit

his right to operate a motor vehicle over

the highways of this State for a period of

not less than six months nor more than one

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year.

(2) For a second violation, a person

shall be subject to a fine of not less than

$500.00 nor more than $1,000.00, and shall

be ordered by the court to perform

community service for a period of 40 days,

which shall be of such form and on such

terms as the court shall deem appropriate

under the circumstances, and shall be

sentenced to imprisonment for a term of not

less than 48 consecutive hours, which shall

not be suspended or served on probation,

nor more than 90 days, and shall forfeit

his right to operate a motor vehicle over

the highways of this State for a period of

two years upon conviction, and, after the

expiration of said period, he may make

application to the Director of the Division

of Motor Vehicles for a license to operate

a motor vehicle, which application may be

granted at the discretion of the director,

consistent with subsection (b) of this

section.

(3) For a third or subsequent

violation, a person shall be subject to a

fine of $1,000.00, and shall be sentenced

to imprisonment for a term of not less than

180 days, except that the court may lower

such term for each day, not exceeding 90

days, served performing community service

in such form and on such terms as the court

shall deem appropriate under the

circumstances and shall thereafter forfeit

his right to operate a motor vehicle over

the highways of this State for 10 years.

If the driving privilege of any person

is under revocation or suspension for a

violation of any provision of this Title

at the time of any conviction for a

violation of this section, the revocation

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or suspension period imposed shall commence

as of the date of termination of the

existing revocation or suspension period.

A court that imposes a term of imprisonment

under this section may sentence the person

convicted to the county jail, to the

workhouse of the county wherein the offense

was committed, to an inpatient

rehabilitation program or to an Intoxicated

Driver Resource Center or other facility

approved by the Director of the Division of

Alcoholism in the Department of Health;

provided that for a third or subsequent

offense a person shall not serve a term of

imprisonment at an Intoxicated Driver

Resource Center as provided in subsection

(f).

A person who has been convicted of a

previous violation of this section need

not be charged as a second or subsequent

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offender in the complaint made against him

in order to render him liable to the

punishment imposed by this section on a

second or subsequent offender, but if the

second offense occurs more than 10 years

after the first offense, the court shall

treat the second conviction as a first

offense for sentencing purposes and if a

third offense occurs more than 10 years

after the second offense, the court shall

treat the third conviction as a _ second

offense for sentencing purposes.

(b) A person convicted under this

section must’ satisfy the screening,

evaluation, referral and program and fee

requirements of the Division of

Alcoholism's Bureau of Alcohol

Countermeasures Intoxicated Driving Program

Unit, and of the Intoxicated Driver

Resource Center and a program of alcohol

education and highway safety, as prescribed

by the Director of the Division of Motor

Vehicles. The sentencing court shall

inform the person convicted that failure to

satisfy such requirements shall result in

a mandatory two day term of imprisonment in

a county jail and a driver license

revocation or suspension and continuation

of revocation or suspension until such

requirements are satisfied, uniess stayed

by court order in accordance with Rule 7:8-

2 of the N.J. Court Rules, 1969, or R.S.

39:5-22. Upon sentencing, the court shall

forward to the Bureau oof Alcohol

Countermeasures within the Intoxicated

Driving Programs Unit a copy of a person's

conviction record. A fee of $80.00 shall

be payable to the Alcohol education,

Rehabilitation and Enforcement Fund

established pursuant to section 3, P.L.

10a

_—

1983, c. 531 (C.26:28 2B-32) to support the

Intoxicated Driving Programs Unit.

this section, the court shall collect

forthwith the New Jersey driver's license

or licenses of the person so convicted and

forward such license or licenses to the

Director of the Division of Motor Vehicles.

The court shall inform the person convicted

that if he is convicted of personally

operating a motor vehicle during the period

of license suspension imposed pursuant to

subsection (a) of this section, he shall,

upon conviction, be subject to the

penalties established in R.S. 39:3-40. The

person convicted shall be informed orally

and in writing. A person shall be required

to acknowledge receipt of that written

notice in writing. Failure to receive a

written notice or failure to acknowledge in

lia

writing the receipt of a written notice

shall not be a defense to a subsequent

charge of a violation of R.S. 39:3-40. In

the .vent that a person convicted under

this section is the holder of any out-of-

state driver's license, the court shall not

collect the license but shall notify

forthwith the director, who shall, in turn,

notify appropriate officials in the

licensing jurisdiction. The court shall,

however, revoke the nonresident's driving

privilege to operate a motor vehicle in

this State, in accordance with this

section. Upon conviction of a violation of

this section, the court shall notify the

person convicted, orally and in writing, of

the penalties for a second, third or

subsequent violation of this section. A

person shall be required to acknowledge

receipt of that written notice in writing.

12a

A A ae ig? :

Failure to receive a written notice or

failure to acknowledge in writing the

receipt of a written notice shall not be a

defense to a subsequent charge of a

violation of this section.

(ad) The Director of the Division of

Motor Vehicles shall promulgate rules and

regulations pursuant to the "Administrative

Procedure Act," P.L. 1968, c. 410

(C.52:14B-1 et eq.) in order to establish

a program of alcohol education and highway

safety, as prescribed by this Act.

(e) Any person accused of a violation

of this section who is liable to punishment

imposed by this section as a second or

subsequent offender shall be entitled to

the same rights of discovery as allowed

defendants pursuant to the Rules Governing

Criminal Practice, as set forth in the

Rules Governing the Courts of the State of

13a

New Jersey.

(f) The counties, in cooperation with

the Division of Alcoholism and the Division

of Motor Vehicles, but- subject to the

approval of the Division of Alcoholisn,

shall designate and establish on a county

or regional basis Intoxicated Driver

Resource Centers. These centers shall have

the capability of serving as community

treatment referral centers and as court

monitors of a person's compliance with the

ordered treatment, service alternative or

community service. All centers established

pursuant to this subsection shall be

administered by a certified alcoholism

counsellor or other professional with a

minimum of five years' experience- in

treatment of alcoholism. All centers shall

be required to develop individualized

14a

treatment plans for all persons attending

the centers; provided that the duration of

any ordered treatment or referral shall not

exceed one year. It shall be the center's

responsibility to establish networks with

the community alcohol education, treatment

and rehabilitation resources and to receive

monthly reports from the referral agencies

regarding a person's participation and

compliance with the program. Nothing in

this subsection shall bar these centers

from developing their own education and

treatment programs; provided that they are

approved by the Division of Alcoholisn.

Upon a person's failure to report to

the initial screening or any subsequent

ordered referral, the Intoxicated Driver

Resource Center shall promptly notify the

sentencing court of the person's failure to

15a

comply.

Required detention periods at the

intoxicated Driver Resource Centers shall

be determined according to the individual

treatment classification assigned by the

Bureau of Alcohol Countermeasures. Upon

attendance at an Intoxicated Driver

Resource Center, a person shall be assessed

a per diem charge of $50.00 for the first

offender program or a per diem fee of

$75.00 for the second offender program, as

appropriate.

The centers shall conduct a program of

alcohol education and highway safety, as

prescribed by the Director of the Division

of Motor Vehicles.

The Director of the Division of

Alcoholism shall adopt rules and

16a

regulations pursuant to the "Administrative

Procedure Act", P.L. 1988, C. 410

(C.52:14B-1 et seq.), in order to

effectuate the purpose of this subsection.

Amended by L.1977, c.29, 1; L.1981, c.47,

1, eff. Feb. 25, 1981; L.1981, c.537, 1;

L.1982, c.53, 2, eff. July 1, 1982;

L.1982, c. 58, 1, eff. July 6, 1982;

L.1983, c. 90, 2, eff. March 11, 1983;

L.1983, c. 129, 1, eff. April 7, 1983;

L.1983, c. 444, 1; L.1984, c. 243, i;

eff. Jan. 2, 1985; L.1986, c. 126, Ae

eff. Oct. 9, 1986.

1 Rule 39:1-1 et seq.

Assembly Judiciary, Law, Public Safety and

Defense Committee Statement

Senate, No. 1833--L.1983, c.129

The purpose of this bill in its

substitute form is to amend the drunk

driving statutes so that New Jersey will

17a

meet the basic requirements and some of

the supplemental requirements of a federal

law that provides federal incentive grants

to states with stringent~- drunk driving

laws.

By meeting the initial minimum

requirements of the federal law, New Jersey

could qualify for a basic grant of

$720,000.00 per year for three years, to be

used to implement and enforce programs to

reduce traffic safety problems caused by

persons who drive while intoxicated.

The bill makes changes to New Jersey's

drunk driving laws, thereby bringing them

into conformance with the requirements for

a basic federal grant. fThe bill, in its

substitute form, requires that a person

whose blood aicohol concentration is 0.10%

18a

or greater be considered guilty of driving

while intoxicated. Current law merely

creates a presumption that such a rerson

was under the influence of intoxicating

liquor. The Attorney General's Office has

proposed the language incorporated in the

substitute.

Other requirements for a basic grant

are already covered by current law. These

include prompt license suspensicns of at

least 90 days for a first offender and at

least one year for a repeat offender, and

increased efforts to enforce alcohol-

related traffic laws.

If New Jersey's laws meet some or all

of certain additional requirements, the

State can qualify for a grant of up to

$480,000.00 per year for three years, in

19a

addition to the basic grant.

New Jersey already fulfills two other

requirements for a supplemental grant: a

statewide record keeping system, and

rehabilitation and treatment programs for

persons convicted of driving while

intoxicated.

One requirement for a supplemental

grant which was just recently met by New

Jersey is the establishment of 21 years of

age as the legal age for purchasing and

consuming alcoholic beverages.

20a

APPENDIX B

OPINIONS BELOW

OPINION OF THE TRIAL COURT

MUNICIPAL COURT

MANALAPAN - TOWNSHIP

120 Route 522 & Taylors Mills Road

MANALAPAN, NEW JERSEY 07726

September 8, 1988

Thomas E. Doig, Jr., Esq.

106 Abbington Dr.

Twin Rivers Town Center

East Windsor, N. J. 08520

Re: State vs: Bertola

Summons #69918 and 69920

Dear Mr. Doig;

The Court agreed to, and in fact conducted

a hearing based upon Defendant's argument

that the breathalyzer machine, functioning

on the basis of a 2100 to 1 ratio, could

not yield an accurate breath result in all

cases; since not all individuals will yield

a breath sample commensurate with that 2100

to 1 ratio.

Expert testimony was elicited from Dr. John

Brick on the part of the Defendant, and

from Dr. Richard Saferstein on the part of

the State.

Interesting and informative data was

admitted; Defense counsel utilizing charts

and tables taken from publications cited

by the State's own expert.

The Court concludes that in fact, the 2100

to 1 ratio is not applicable to all people

of both sexes, different weights, varied

emotional stability, and the like. In

addition, it is more likely that a 2300 to

1 ratio would be more prevalent to most of

the population - but again, not all.

23a

The Court. is satisfied that a significant

segment of the population, for one reason

or another, does not fall within the "2100

to 1" ratio.

However, it is equally clear that in the

Court's view, it is entirely the burden of

the Defendant to demonstrate that he (not

merely some segment of the population) has,

or at least at the time of testing, had a

ratio other than 2100 to 1. The Court is

not persuaded by the evidence, that this

was the case.

24a

The results stand as admitted at .12 BAC.

Defendant is found guilty of driving under

the influence.

Sentencing on September 20, 1988, 9:30 AM.

Very truly yours,

Leslie B. Tinkler, JMC

OF THE MONMOUTH COUNTY COURT

ON TRIAL DE NOVO

THE COURT: He testified the defendant

swayed when he stood still and also when he

walked. His face was observed to be

flushed and his clothing was messed. And,

of course, the officer came to the obvious

conclusion that he was under the influence.

This is the kind of testimony that we have

in this case, notwithstanding the

breathalyzer upon which this Court has to

make a determination whether his mental

faculties and physical coordination were

affected in a deleterious way by the

consumption of alcohol. And I'm satisfied

beyond a reasonable doubt that this is so.

Notwithstanding the breathalyzer, that

he was under the influence and in violation

26a

of 39:4-50. Now, I come to that conclusion

independent of it, but I've also stated

that the reading to me is a reliable

reading. And the attack is on a question

of reliability which is rejected by this

Court. Now, I want to also indicate one

other thing to Mr. Doig. That I am willing

to look again at this transcript and once

again review this particular case in the

event that he in wrong about what his

information is concerning Judge Dreier's

decision. If Judge Dreier's decision is

one that supports Judge Haines, then I

will entertain an application by you to

once again look at this matter. Because

I may be looking at it in a different light

at that particular time. I may not be. So

I order that you will i. have that

opportunity. I don't want to hold on a

decision on this because God knows when the

27a

Appellate Division is going to decide

something. That's the decision I'm going

to make. I will not stay the imposition of

the penalties for that decision.

28a

FIRST CERTIFICATION APPLICATION

SUPREME COURT OF NEW JERSEY

M-814/815 September Term 1988

29,818

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DONALD D. BERTOLA,

Defendant-Movant.

This matter having been duly

presented to the Court, it is ORDERED that

the motion for direct certification (M-814)

is denied; and it is further

ORDERED that the motion for

consolidation with State vs. Downie (M-815)

is dismissed as moot.

WITNESS, The Honorable Robert N. Wilentz,

Chief Justice, Trenton, on this 8th day of

March, 1989.

29a

OPINION OF THE APPELLATE DIVISION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-1621-88Tl

STATE OF NEW JERSEY,

Plaintiff-Respondent,

DONALD D. BERTOLA,

Defendant-Appellant.

Submitted October 31, 1989

Decided December 4, 1989

Before Judges R.S. Cohen

and Brochin. .

On appeal from the Superior Court, Law

Division, Monmouth County.

30a

Thomas E. Doig, Jr. attorney for

appellant.

John Kaye, Monmouth County

Prosecutor, as attorney for

respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel,

John A. Boese,Assistant

Prosecutor, on the letter brief).

PER CURIAM

Defendant was convicted of driving

while intoxicated. In the Municipal Court,

the focus of the defense was the claimed

unreliability of the breathalyzer. The

judge concluded from the evidence before

him that the breathalyzer was unreliable

for reasons consistent with Judge Haines'

conclusions in State v. McGinley, 229 N. J.

Super. 191 (Law Div. 1988). The judge

further concluded, however, that defendant

failed to satisfy his burden to show that

he fell on the wrong side of the average

3la

2100-to-l blood-breath ratio.

On appeal to the Law Division, Judge

Ricciardi voiced some reservations about

the accuracy of the breathalyzer but ruled

that he was precluded by Romano v.

Kimmelman, 96 N.J. 66 (1984), and State v.

Downie, 220 N.J. Super. 207 (App. Div.

1988), from dealing with the matter. Judge

Ricciardi examined the other evidence in

the case and concluded from it that

defendant was guilty of driving while

intoxicated beyond a reasonable doubt. We

agree and therefore affirm.

Officer William Rhett testified that

he was on patrol at about midnight when he

saw defendant's vehicle traveling the same

road in the opposite direction "on the

shoulder line." Rhett turned his car

around and followed defendant. Defendant

crossed the shoulder line five times and

32a

the center line four times, each time with

a quarter of the vehicle. Rhett stopped

defendant and approached his vehicle.

Defendant had a hard time producing

credentials, smelled of alcoholic

beverage and his eyes were bloodshot.

Defendant got out of his vehicle and

slightly swayed from side to side as he

walked to the front. He failed to get past

"H" three times when requested to recite

the alphabet. Defendant declined to try

the one-leg balance test because he said he

was too nervous. He perfcsrmed quite badly

on the finger-to-nose test and heel-to-toe

line-walking. Rhett then placed defendant

under arrest.

Back at headquarters, psychophysical

tests were again administered. Defendant

could not recite the alphabet past "H." He

swayed standing with head back and eyes

33a

closed. Heel-to-toe walking was again not

done and, on the finger-to-nose test,

defendant could not perform according to

directions. Defendant's speech was low and

slow. His attitude was carefree and

cooperative. His clothes were mussed, eyes

bloodshot, hand movements slow and face

flushed. He said he had a couple of beers.

Officer Rhett concluded that defendant was

intoxicated.

Defendant denied very little of the

Rhett testimony. He said he had four beers

at a tavern and headed home. He said his

front universal joint was bad, so he drove

Slowly and "was hugging the white line."

A couple of days later he replaced the

universal joints. Defendant admitted

having trouble finding his credentials, and

admitted he could not recite the alphabet

even though he had graduated from high

34a

school. With respect to the physical

tests, defendant was asked:

And you don't dispute what the

officer testified to about the

results?

He replied:

Well, yeah, you know, I just

couldn't function like now, you

know.

Even without the opportunity to see

and hear the witnesses, we agree with Judge

Ricciardi that the evidence other than the

breathalyzer readings compels the

conclusion beyond a reasonable doubt that

defendant was driving while intoxicated.

We therefore need not deal with the

reliability of those readings.

Defendant makes other arguments

before us. They all relate to the "per-se"

portion of N.J.S.A. 39:4-50(a).

Because defendant's conviction in the Law

35a

Division did not depend on the "per-se"

portion, the arguments are moot.

Affirmed.

36a

OPINION OF THE NEW JERSEY SUPREME COURT

SUPREME COURT OF NEW JERSEY

C-553 September Term 1989

31,304

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DONALD D. BERTOLA,

Defendant-Petitioner.

To the Appellate Division, Superior Court,

A petition for certification of

the judgment in A-1621-88T1l having been

submitted to this Court, and the Court

having considered the same;

It is ORDERED that the petition

for certification is denied, with costs.

WITNESS, the Honorable Robert N.

Wilentz, Chief Justice, at Trenton, this

6th day of February, 1990.

37a

APPENDIX C

FEDERAL ISSUES RAISED BELOW

STATEMENT OF ERRORS COMPLAINED OF

i The credible testimony

of the police officer | against’ the

appellant-petitioner, does not substantiate

a case of driving while intoxicated, based

on the physical evidence in this case.

2. The Appellate Division

failed to reach the issue of the proper

working of the breathalyzer in light of

the arguments under 2100:1 blood/breath

ratio.

3. The trial court failed

to admit into evidence the hematocrit test

results which would have directly affected

the breathalyzer reading.

38a

A. THE APPELLANT-PETITIONER'S RIGHT

OF DUE PROCESS WAS NOT AFFORDED IN LIGHT OF

THE FACT THAT THE PER SE APPLICATION OF THE

BREATHALYZER BY THE STATUTE PREJUDICES THE

JUDGE'S FINDINGS IN THE CASE BEFORE THE

COURT BY CREATING AN IRREBUTTABLE

PRESUMPTION.

The appellant-petitioner in the case

before the court adopts the amicus curiae

brief of the National Association of Trial

Lawyers as set forth in State v. Downie,

supra and sets out the applicable portion

of the argument in full hereinbelow.

New Jersey statute, N.J. Stat. Ann.

Sec. 39:4-50(a) reads, in part: "A

PETSON...--cee- operates a motor vehicle

39a

with a blood Alcohol Concentration of 0.10%

or more of alcohol in the defendant's

blood.........is guilty of violating this

section." This per se violation consists

of only two elements as required under the

statute; (1) operation of a motor vehicle

and (2) a BAC of .10% or more.

The first element, “operation", has

been broadly construed. The courts of this

state have held that even unsuccessful

attempts to operate a vehicle in a public

place is included, State v. Stiene, 203

N.J. Super, 275, 496 A.2da 738 (1985).

In State v. Mulchay, 107 N.J. 467, 527 A.2d

368 (1987), this court held that an

individual falls within the category of

"operating" a vehicle if he/she is observed

staggering to the vehicle (a car, here) and

is stopped while attempting to put the key

into the ignition. In 1987 this court went

40a

even further. In State v. Wright, 107 N.J.

448, 527 A.2d 379 (1987), this could held

that the State was only required to show

that the arresting police officer had

probable cause to believe that’ the

defendant had been operating a vehicle

while under the influence.

The second element is the key to this

constitutional challenge. As counsel for

Defendants-Respondents pointed out below:

"(Tjhe statute which has added the

provisions to the per se in April 7th of

1983, creates two sections or violations of

the 39:4-50 section of the statute. One is

what's commonly called driving under the

influence and the other is what's commonly

called driving with a per se one zero

reading on the breathalyzer machine or any

4la

requirement.

approved.........

The second issue which I

obviously would want to be in a

position to present to the Court

is the issue with relationship to

the reliability of the machine.

I would submit to the Court that

as a result of our investigation

the machine is probably as valid

as some machine that you stick

into Resorts or the Trump Plaza.

Your (sic) probably have about as

much capacity to be able to come

back with a true reflection as

to what your alcohol intake had

been and what your condition was

at the time of operation as you

would by pulling four sevens on

the International Machines

currently held in Atlantic

os. Pr The difficulty with

the per se is that the per se

doesn't convict average people it

convicts everybody." New Jersey

v. Downie, Transcript of Recorded

Proceeding, Asbury Park Municipal

Court, March 30, 1988.

As counsel below noted there

machine which would be properly

are

several constitutional questions which have

implicated in this .10 per _se

42a

These include the reliability

or accuracy of the instrumentation or

operators thereof, vagueness, presumptions,

strict liability, self incrimination, and

having one's "day in court" with the

opportunity to testify on one's behalf and

be confronted with the witnesses against

him. Cf., Rock v. Arkansas, --U. S.--, 107

S. Ct. 989 (1987).

In Romano v. Kimmelman, 96 N.J. 66,

474 A.2a 1 (1984) individuals charged with

operating vehicles while under_- the

influence brought action seeking

injunctions against use of the breathalyzer

test results as evidence in drunk driving

proceedings. This court judicially

recognized in general terms the

breathalyzer as an accurate scientific

technique generally accepted in the

scientific community. However, this court

43a

made it quite clear that a per _se rule

could do violence to due process as well

as interfere with a defendant's right to a

fair trial which, after all, is the

hallmark of the Sixth Amendment to the

United States Constitution. Baldwin v. New

York, 399 U.S. 66, 90 §.Ct. 1886, 26

L.Ed.2d 437 (1970). This conclusion is

axiomatic. Indeed, to deny any “automatic

congruence" between the safeguards of

procedural due process in criminal or

quasi-criminal proceedings | implicates

fundamental fairness in that a literal

reading of the standard of proof suggested

in New Jersey statute 39:4-50(a) would

result in the rejecticn of adequate

protection because the legislation at issue

jeopardizes the entire proceedings. In re

Winship, 397 U.S. 358, 374-375 (1970)

(Harlan, J., concurring). To insure

44a

fairness the state must prove beyond a

reasonable doubt all facts necessary to

constitute the criminal, or quasi-criminal

activity., To do otherwise would permit the

state to escape the reasonable doubt

standard and hide under the per _se rule

which denies the defendant his/her day in

court. The concept is not an easy one to

grasp, yet due process demands no less than

fairness and an opportunity to be heard.

For example, in United States v. Smith, 776

F.2d 892 (10th Cir. 1985), the court found

that where the "“intoxilyzer" breath test

results were admitted as evidence in the

defendant's conviction for involuntary

manslaughter in a traffic accident, the

trial court did not abuse its discretion in

so admitting the evidence. The court held

that the "intoxilyzer" technique of testing

is generally accepted in the scientific

45a

community and thus meets the classic

admissibility test for scientific evidence

given in Frye v. U.S., 293 Fed. 1013 (D.C.

Cir. 1923)." In Smith, however, the

defendant was allowed to challenge all

evidence at the trial level. The court of

appeals only dealt with the question of

admissibility of the evidence.

In State v. Boehmer, 613 P.2d 916 (Ct.

App. Haw. 1980), the Hawaiian Court of

Appeals recognized a 0.0165% error factor

in the breathalyzer test. That court, in

a case involving a reading of .11% argued

that "the inherent margin of error could

put the defendant's actual BAC below the

level necessary for the presumption to

arise." The Nebraska courts recognized

the same factor of fairness in State v.

Bjornsen, 271 N.W.2d. 839 (Nebr. 1978).

46a

——— <<

The State of New Jersey might well argue

that there is a presumption element in the

statute that does not do violence to the

due process fairness component, and that

the consequences of the determination of

content is not sufficiently punitive to

warrant imposing all criminal safeguards

at the adjudicatory stage.

THE PRESUMPTIONS ISSUES

In response it is important to note

that for constitutional purposes, there are

three types of presumptions:

(1) Conclusive or mandatory. I t is

submitted that these are absolutely

unconstitutional in the criminal or quasi-

criminal context because they allow the

state to rely on a rule of law to prove

guilt beyond a reasonable doubt. Sandstrom

47a

v. Montana, 99 S.Ct, 2450, 442 U.S. 510, 61

L.Ed.2d 39 (1979).

(2) Permissive. This concept of a

presumption within the criminal or quasi-

criminal context makes inferences and

places no burden on the defendant. County

Court of Ulster County v. Allen, 99 S.Ct.

2213, 442 U.S. 140, 60 L.Ed. 2d 777 (1979).

These have been held constitutional because

they are entirely within the discretion of

the factfinder and shoul’ have no effect on

the burden of proof.

(3) Rebuttable. Under the case law there

are two types of rebuttable presumptions:

(a) Burden of proof shifting;

these are unconstitutional in criminal

cases because they allow the state to shift

the burden of proof to the defendant.

Sandstrom v. Montana, supra.

48a

(b) Burden of production

shifting; these are found to be

unconstitutional. They require that due

process standards of fairness be met and

that the defendant be permitted to

introduce evidence to rebut the State's

case.

A prosecution under Sec. 39:4-

50(a), N.J. Stat. Ann. is a quasi-criminal

proceeding and, therefore, requires proof

of guilt beyond a reasonable doubt. In

State v. Johnson, 42 N.J. 146, 199 A.2d 809

(1964), where the defendant was on trial

for operating a motor vehicle while under

the influence of alcohol, and State v.

Emery, 27 _N.J. 348, 142 A.2d 874 (1958),

where the defendant was tried for driving

while intoxicated and for conspiring to

obstruct justice by falsely stating that

he had been the driver of the automobile,

49a

the court required more than just

breathalyzer test results. The cases could

not be rested entirely on the test result.

This was more recently paralleled in Barnes

v. People, 735 P.2d 869 (Colo.) 1987) where

the Supreme Court of Colorado held that

driving under the influence’ statutes

authorized only permissive inference rather

than mandatory presumption that_ the

defendant was under the influence. The

court in Barnes further held that a

mandatory presumption created by the jury

instructions was not cured by contradictory

statements in other instructions. However,

it must be noted that although there is at

present no entitlement to an indictment or

a jury trial in the proceedings in

question, State v. Roth, 154 N.J. Super,

363, 381 A.2d 193 (1983), and State v.

Ferretti, 189 N.J. Super, 578, 461 A.2d

50a

193 (1983), the issue is presently before

the United States Supreme Court; see

Blanton v. City of North Las Vegas, 87-1437

certiorari granted, June 20, 1988,

_ _U.S. __, 108 S.Ct. 2843 (1988). This

is significant to the present case because

the issue before the United States Supreme

Court in Blanton is:

Where the misdemeanor offense of

driving a vehicle while intoxicated under

state law is a crime to which the right to

jury trial applies, New Jersey stands in

the distinct minority in denying jury

trials with the context of the present fact

situation.

Within this setting emerges In re

Winship, 397 U.S. 358, 364 (1970), in which

the United States Supreme Court held that

under the Due Process Clause of the 14th

Amendment, criminal convictions must be

5la

based on nothing less than proof of guilt

"beyond a reasonable doubt." Specifically,

this entails proof beyond a reasonable

doubt of each element of the offense. This

holding was reiterated in Patterson v. New

York, 432 U.S. 197, 217 (1977). In

addition to holding that every element

needed proof beyond a reasonable doubt, the

Winship court held that the state could not

shift the burden of that proof. In this

State's rush to eliminate the reasonable

doubt component from it's DWI trials it

would be well to pause and examine not only

the federal case law reflecting

constitutionally held values of long

standing, but also the Uniform Chemical

Test for Intoxication Act, Sec. 7, where

it is recognized that if the chemical

analysis demonstrates that the amount of

weight of alcohol is less than 0.15 percent

52a

by weight, such evidence is to be

considered relevant but is not to be given

prima facie effect in indicating whether

the person was or was not under the

influence of intoxicating liquor. See

also, 16 A.L.R. 2d 748 and 7 Am. Jr.2d,

Automobiles and Highway Traffic 334.

Furthermore, the New Jersey criminal

code states that "[n]o person may be

convicted of an offense unless each element

of such offense is proved beyond a

reasonable doubt." (N.J. Stat. Ann. Sec.

2C:1-13(a)) while N.J. Stat. Ann. Sec.

2C:1-14h(a) defined each “element of the

offense" as “such conduct or...attendant

circumstances...as included...in the

definition of the offense.' In this State,

a presumption may not be accorded mandatory

effect. This was upheld in two recent

cases having to do with unlawful possession

53a

of weapons, State v. Ingram, 98 N.J., 489,

497, 488 A.2d 545, 549 (185), where the

defendant was convicted of possessing a

handgun without a permit, and State v.

McCandless, 190 N.J. Super, 75, 79, 461

A.20d 1205, 1207, (1983), where defendants

were convicted of unlawful possession of an

automatic pistol. This implies that the

factfinder cannot be required, either by

statute or by judicial instruction, to

accept presumed facts as having been proved

merely because the underlying facts giving

rise thereto have been proved. State v.

McCandless, supra at 81, 461 A.2d at 1208.

Furthermore, this Court and the United

States Supreme Court have declared that

"the ultimate test of any [presumptive]

device's constitutional validity remains

constant: the device must not undermine the

factfinder's responsibility at trial, based

54a

on evidence adduced by the State, to find

ultimate facts beyond a reasonable doubt."

State v. Ingenito, 87 N.J. 204, 220, 432

A.2d 912, 920 (1981) quoting Ulster County

v. Allen, 442 U.S. 140, 156 (1979).

In this state the breathalyzer is

judicially noticed as a reliable and

accurate mechanism to determine = an

individual's BAC, Romano v. Kimmelman, 96

N.J. 66, 89-91, 474 A.2d 1, 13-14 (1984).

Therefore, in a per se case, the state

seeks to use the reading of an individual's

BAC at the time of testing to infer the BAC

level at the time of operation. This must

be done because the statute implies that

the BAC level which is of interest is the

one the individual has while in the process

of "operating" the vehicle. That is, the

State is forced to infer an element of the

crime. The constitutionality of this

55a

presumption depends, among other things, on

the degree to which the use of the

presumption curtails the factfinder's

freedom to assess the evidence

independently. See ce. generally

Giannelli, The Admissibility of Laboratory

Reports _in Criminal Trials: The

Reliability of Scientific Proof, 49 Ohio

St. L. Jo. 671 (1988). Therefore, if the

breathalyzer results are treated as

conclusive proof of the defendant's BAC at

the time of operation, it is clear that

such a presumption violates due process by

eliminating both the State's burden of

proof and the factfinder's freedom to

accept or reject the presumption. See

arguments of Petitioner in Blanton v. City

of North Las Vegas, supra. Thus a better

reading and application of the per se

statute in light of Winship necessitates

56a

allowing the defendant to rebut under the

Due Process Clause any and all statutory

requirements, which is precisely what

happened in State v. Lowther, 740 P.2d i617

(Hawaii App. 1987) where the court held

that legislative provisions -to admit

intoxilyzer results does not equate with

sufficient evidence for conviction.

A defendant in a criminal or quasi-

criminal proceeding has additional

protection supported by the remaining

pillars of constitutionally guaranteed

rights. In Cf., Rock v. Arkansas, 483 U.S.

44, 107 S. Ct. 2704, 97 L.Ed. 2d 37 (1987),

a recent case dealing with manslaughter,

the United States Supreme Court held that

an accused in a criminal case has a right

to call in witnesses, including themselves,

and to speak up in their defense in court.

The Court found that anything less would be

57a

arbitrary and therefore impermissible

restriction upon a defendant's

constitutional right to a fair trial. Id.

The Court further held that the State's

legitimate interest in barring unreliable

evidence (in that case,co-

defendants.........in the present

situation, the defendant himself in

response to the test result) does not

extend to per se exclusions that may

otherwise be reliable in an individual

case. The United States Supreme Court, in

Washington v. State of Texas, 388 U.S. 14,

87 $.Ct. 1920, 18 L.Ed. 2d 109 (1967),

held that defendants have a Sixth Amendment

right to be confronted with the witnesses

against them and that this guarantee

applies to state criminal proceedings

through the Fourteenth Amendment right to

be confronted with the witnesses against

58a

them and that this guarantee applies to

state criminal proceedings through the

Fourteenth Amendment, Pointer v. Texas, 380

U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923

(1965). In the case at bar, being a per se

violation based on the test results, the

only "witness" that stands accusing the

defendant are the breathalyzer results.

It is submitted that under Rock, the

defendant must be given the opportunity to

confront his accusers in his own defense.

In In re Oliver, 333 U.S. 257, 68 S.Ct.

499, 507 (1948), the Supreme Court held

that a person's right to reasonable notice

of a charge against him, and an opportunity

to be heard in his defense - as well as a

right to his day in court, are basic in our

constitutional system of jurisprudence;

"and these rights include, as a minimum, a

right to examine the witnesses against hin,

59a

to offer testimony, and to be presented by

counsel." We submit that no less can be

expected = the case at bar.

60a

APPENDIX D

SCIENTIFIC FINDINGS

OF EVIDENTIARY HEARING

SUPREME COURT OF NEW JERSEY

A-167 SEPTEMBER TERM 1988

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

ARCHIE DOWNIE,

Defendant-Appellant.

ON TEMPORARY

REMAND TO THE

SUPERIOR COURT,

“LAW DIVISION,

MONMOUTH COUNTY

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Vv.

DANIEL MATTHEWS,

Defendant~Appeilant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

MARTIN J. MAROTTA,

Defendant-Appellant.

6la

STATE OF NEW JERSEY

Plaintiff-Respondent,

Vv.

CHARLES F. CARROLL,

Defendant-Appellant.

Boris Moczula and John

M. Fahy, Deputy

Attorney General for

the State, Peter N.

Perretti, Jr., Attorney

General.

Mark P. Stalford,

Assistant County

Prosecutor for John A.

Kaye, Monmouth County

Prosecutor

Francis X. Moore for

defendants, Downie,

Matthews, Marotta and

Carroll

E. John Wherry, Jr.;

amicus curiae on behalf

of the National

Association of Criminal

Defense Lawyers

62a

MCGANN, JR., J.S.C.j

INTRODUCTION

This matter was remanded to the

Law Division for the purpose of conducting

a hearing in the matters which have been

consolidated; for which certification has

been granted and on which argument on

appeal is pending. In accordance with the

remand; at the hearing "the four defendants

and the State shall present evidence to

develop a factual record on the allegation

that partition-ratio variability

compromises the scientific reliability of

breathalyzer-test results, and which

hearing shall address the following issues:

(i) the nature and extent of the

variability of the partition ratio, and

(ii) the effect, if any, of such

variability of the partition ratio on the

reliability of breathalyzer-test results."

63a

Pursuant to the remand and with

the cooperation of all counsel, expedited

hearings were held on April 27, May 1, May

15, May 17, May 19, May 22, May 24, May 30,

May 31, June 1, 1989. Ten witnesses were

called. The particular expertise of each

was not subject to challenge. Complete

transcripts of their testimony have been

produced and made available to all counsel.

Originals of those transcripts are

submitted to the Court along with these

findings. Various exhibits were received

in evidence. A set of those exhibits

likewise accompanies these findings.

For ease in review I have

extracted what I deem to be the essential

facts and opinions expressed by each of the

witnesses, and have commented, where deemed

appropriate, on the weight and value which

I placed on those opinions. In what

64a

appears to be a fairly logical order, those

synopsized findings along with the

curriculum vitae of each witness have been

appended hereto under tabs A through J.

The order chosen is Dr. Borkenstein, Dr.

Hlastala, Dr. Payne, Dr. Jones, Or.

Dubowski, Mr. Shajani, Mr. Lucas, Sgt.

Gullberg, Mr. Harding and Dr. Simpson.

Dr. Borkenstein is the inventor

of the Breathalyzer and gives an historic

view of the matters to be considered on

the remand. Dr. Hlastala gave informative

information on the physiology of human

lungs and on the readings of alcohol in

the breath. Drs. Jones and Dubowski have

been leaders in experimental blood-breath

studies and on the so-called partition

ratio: Dr. Payne did some significant

early work in the field. Mr. Shajani, Mr.

Lucas and Sgt. Gullberg have a perspective

65a

on both laboratory studies and field work

with Breathalyzers. Mr. Harding and Dr.

Simpson did no experimental or field work

but simply drew statistical conclusions

based on the published works of others.

The references in the findings to

the work or views of one or another of

these experts is then, to the detailed

findings which I made on each and not to

page and line in their testimony, for that

is quite difficult to do. In order to

extract a particular statement or

conclusion one must digest many pages of

testimony and of legal colloquy. In some

cases a statement originally made in a

fragmentary fashion becomes clear only much

later on in the questioning.

THE PROBLEM

Scientists have known for a long

‘

66a

time that it is the presence of alcohol’

in the brain that causes disfunction there,

leading to automobile accidents resulting

from that cerebral disfunction. The medium

by which alcohol gets to the brain is the

blood. If it were possible to directly

sample blood from the brain, the amount of

alcohol it contains can be easily and very

accurately read. But it is not.

Alcohol comes into the human body

by being imbibed and deposited in the

stomach and passes to the small intestines.

It is absorbed into the blood partly in the

stomach and principally from the small

intestines. Absorption can take place

quite quickly or more slowly depending on

the contents of the stomach and the

strength and quantity of the alcohol

4 “"alcohol™ throughout means

ethyl (grain) alcohol (ethanol).

67a

eae etl

ingested at a particular time. The alcohol

laden blood then passes to the liver and

circulates through all parts of the body

where it is found in all water in the body.

Freshly formed urine, saliva or other body

fluids receive the alcohol in proportions

to their water content. Readings of amount

of alcohol in those fluids can be and have

been made. Blood from many parts of the

body, taken after a certain time for

absorption, will reflect the alcohol

present in the body.

When it comes to other than

laboratory testing, urine specimens and

saliva samples are not. particularly

accurate and are difficult to obtain,

especially on a repeat basis over a short

period of time. They are unsatisfactory

for field work. The taking of blood

samples does pose some inconveniences to

68a

the person charged but not of great

magnitude. With blood the first question

must be - from what part of the body was

the sample taken? The amount of alcohol

present in the blood will vary between, for

example, venous blood from the cubital

(elbow) vein in the arm or from the

fingertips "capillary" blood or from the

arteries "arterial" blood. Even arterial

blood will give different readings on the

amount of alcohol present depending on the

situs of the blood sample.

Arterial blood wanees through

the lungs into the heart and from there is

sent to the brain through the carotid

arteries. On leaving the brain it travels

through the venous system in the body back

through the liver and continues through the

heart where it is again pumped into the

arterial system and lungs.

69a

Returning to the problem of

determining how much alcohol there is in

the brain, the immediate source of blood

supply to the brain is through the carotid

arteries. If one could simply and safely

draw a blood sample from one of those

arteries and measure the alcohol content in

it, it would be an excellent measure of

alcchol in the brain. Such a procedure is

neither simple nor safe.

Blood can be taken from other

sites - commonly the finger tips or the

cubital vein. Both sites are much more

remote from the brain and do not give a

precise indication of what is going on in

the brain at the time they are taken. The

alcohol content of the blood is constantly

changing as it circulates through the body.

It is being eliminated through the various

parts of the circulatory system and is

70a

picking up more alcohol from the small

intestines so long as~- some remains in the

stomach.

For multiple tests upon which

accuracy of blood readings depends, the

fingertip blood or capillary blood is not

satisfactory. The size of the sample is

small and there is the immediate danger of

exposure to the air and evaporation of some

of the alcohol it contains, since alcohol

is a very volatile substance. Venous blood

is very satisfactory as to its quantity,

however, as will be noted later herein, it

does not give an accurate reflection of the

alcohol in the brain - especially during

the time alcohol is still being absorbed

through the stomach and small intestines

into the blood. All of the foregoing has

been known to scientists for a long time.

7la

Scientists also have long known

that as the blood passed along the alveolar

(honey-comb-like) cells in the lungs: some

ef the volatile alcohol in the biood will

escape into the breath chambers on the

other side of the thin membrane which makes

up those cells. This transfer of alcohol

from blood to breath in tien tiene proceeds,

in general, at a fairly predictable rate

for most people, but, as with everything

else about humans, in probably no two is

that rate exactly the same.

Since arterial blood passing

through the lungs is the next most

reachable spot for testing prior to going

through the carotid arteries to the brain,

it was obvious that if some accurate form

of detecting the amount of alcohol in the

breath could be developed and that

breath-alcohol related to an assumed amount

72a

of alcohol in the arterial blood which

produced it, a prediction could be made as

to how much alcohol must be present in the

blood flowing through the brain. Hence the

Breathalyzer and all other breath-alcohol

analyzing instruments.

There is no problem at all with

the technology for measuring the amount of

alcohol present in a given sample of breath

or vapor. The Breathalyzer is but one of

a number of scientifically proven

instruments. Given proper working order

and a trained operator it can read alcohol

in breath magnificently well and with

complete scientific acceptability. All

experts agree.

The sticking point is relating

that breath-alcohol reading or

concentration (BrAC) into a blood alcohol

concentration (BAC). That depends on what

73a

goes on in the individual's lungs.

It is well to pause here to

review New Jersey law on breath testing for

it relates to the problem posed by known

differences in the rate at which alcohol

partly vaporizes from the blood into the

breath in the lungs.

The following are the provisions

of New Jersey statutory law regarding

prosecutions for "drunk driving" or "DWI"

pertinent to the fact-finding function of

this court.

N.J.S.A. 39:4-50(a). "A person

who....operates a motor vehicle

with a blood aicohol

concentration of 0.10% or more by

weight of alcohol in the

defendant's blood eeoe™ is

guilty,' and subject to various

penalties. N.J.S.A. 39:4-50.2(a).

"Any person who operates a motor

vehicle on any public road....

shall be deemed to have given his

consent to the taking of samples

of his breath for the purpose of

making chemical tests to

determine the content of alcohol

in his blood; provided, however,

that the taking of samples is

74a

made in accordance with the

provisions of this act....

(b) A record of the taking of any

such sample, disclosing the date

and time thereof, as well as the

result of any chemical test,

shall be made and a copy thereof

upon his request, shall be

furnished or made available to

the person so tested. (c) In

addition to the samples taken and

tests made at the direction of a

police officer hereunder, the

_person tested shall be permitted

to have such samples taken and

chemical tests of his breath,

urine or blood made by a person

or physician of his own

selection."....

N.J.S.A. 39:4-50.3 provides:

Chemical analyses of the arrested

persons's breath, to be

considered valid under’- the

provisions of this act, shall

have been performed according to

methods approved by the Attorney

General, and by -a person

certified for this purpose by the

Attorney General. The Attorney

General is authorized to approve

satisfactory techniques or

methods, to ascertain the

qualifications and competence of

individuals to conduct’ such

analyses, and to make

certifications of such

individuals, which certifications

75a

shall be subject to termination

or revocation at the discretion

of the Attorney General. The

Attorney General shall prescribe

a uniform form for reports of

such chemical analysis of breath

to be used by law enforcement

officers and others acting in

accordance with the provisions of

this act.

Appropriate regulations regarding

chemical breath testing have been adopted

by the Attorney General and published in

the New Jersey Administrative Code.

N.J.A.C. 13:15-1.1 et. seq. They include

specifications for training and

qualification of Breath Test Operators,

Coordinator/ Instructors and a list of

approved test instruments and requirements

for periodic inspection of the same. Among

them are the Breathalyzer Models 900 and

900A.

As Dr. Borkenstein noted, those

such as Harger and he and others were

76a

trying to determine at what assumed ratio

(of partition i.e. transfer, of alcohol

from blood to breath in the lungs) should

their machine be set or calibrated so that

when an individual blew alveolar breath

into the test chamber the pointing of the

needle on the scale would give accurate

results. It is significant in this

historical development that in the early

1950's when the Breathalyzer was being

designed it was not intended as a "per se"

instrument - as a judgment device that

would give definitive proof of being -

under the influence. Rather was it meant

to be the "back-up" evidence to the

traditional testimony of manner of observed

driving; physical observations on the scene

~- reddened eyes, slurred speech, staggering

and the like response to physical tests at

headquarters-finger -to-nose, walking the

77a

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line, standing erect with eyes closed and

the like. It was intended also to

supplement answers to questions on the

uniform police report which form was very

carefully developed. If there were

lingering doubts whether the person was

"driving under the influence", the machine

reading would provide the backup.

But the first question was, "At

what assumed ratio of blood to breath

partition of alcohol shall we calibrate the

machine?" There is no direct method for

measuring an individual's lung partition

ratio. The only way it can be arrived at

is by scientific experimentation and cal-

culation. Based on experiments which gave

them an educated hunch, scientists

generally believed in the 1950's that a

probable average ratio for all adults would

be about 2000 to 1; that is for every 2000

78a

parts of alcohol in the blood one part

would be released into the alveolar breath

in the lungs. Not all agreed, however,

and so the National Safety Council anxious

to press forward with breath testing for

drunk drivers gathered the leading

experimenters together and they agreed, in

1952, on a convention which read:

The basic principle

governing the operation of the

three presently used breath

alcohol methods (the Drunkometer,

the Intoximeter and Alcometer)

is the constant ratio existing

between the concentration of

alcohol in the alveolar air and

the blood. Available information

indicates that this alveolar

air-blood ratio is approximately

1:2100. However, since each

method involves different

procedures, different empirical

factors are involved in the

calculation of concentrations of

alcohol in the blood in each of

the methods.

It is the opinion of the

subcommittee that the tests made

on the Alcometer, the Intoximeter

and the Drunkometer, if conducted

in the manner’ prescribed by the

authors of the respective

79a

methods, will give comparable and

reliable results for estimating

the concentration of alcohol in

the blood.

And the 2100 to 1 ratio came _ into

existence. It has been the ratio with

which all breath reading instruments have

been calibrated from then to the present -

all over the world. In 1972 an Ad Hoc

Committee on the Blood-Breath Alcohol

Relationship comprised of leading men in

the field from this country (including

Borkenstein and Dubowski) and from Europe

met and agreed on the following statement:

The basic principle

governing the design of breath

alcohol instruments is that a

physiological relationship exists

between the concentration of

alcohol in expired alveolar air

and in the blood.

Available information

indicates that 2.1 liters of

expired alveolar air contain

approximately the same quantity

of alcohol as a milliliter of

blood.

80a

Continued use of this ratio

in clinical and legal

applications is warranted.

What does calibration mean ? The

instrument must have a known standard to

which it can compare an unknown sample.

The instrument does not say "this is

alcohol in human breath." It simply reads

the alcohol content of a vapor - any vapor

- which is introduced into it in a specific

volume.

Henry's Law in physical chemistry

provides that when a liquid containing a

concentration of alcohol (or any volatile

substance) is in contact with air space in

a closed container and at a_— known

temperature, a certain amount of the

alcohol will escape into the air space

above and become part of the vapor. The

amount of the alcohol that does transfer

will depend on the strength of the alcohol

8la

concentration in the liquid at the given

temperature. The higher the temperature

the more alcohol will escape to the vapor

(and less for a lower temperature). Fora

fixed temperature and a fixed concentration

of alcohol in the liquid a _ state of

equilibrium will be rapidly reached at

which the amounts of alcohol in air and

liquid are static. The amount of alcohol

in the vapor is then measured by, for

example, gas chromatography, as is the

amount of alcohol in the liquid. Those are

precise readings. If the alcohol in the

liquid is divided by the alcohol in the

vapor a ratio is set up, e.g. 2200 parts

in liquid to 1 part in vapor. That is the

true partition ratio for that concentration

of alcohol at that temperature.

Sgt. Gullberg described quite

clearly how a Simulator solution is

82a

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chemically prepared to calibrate the

Breathalyzer. At 34° C a solution of .121

gr. of alcohol per 100 milliliters of water

will give off alcohol to the vapor (read by

the instrument) of .10 gr. per 210 liters

of vapor. When the needle deflects the

scale under it is adjusted to read .10

grams per 210 liters. Thereafter it will

read .10 gr. per 210 liter when another

vapor sample exactly the same is presented

to it. This is precisely what the test anm-

pule does in the operational procedure for

the Breathalyzer. If the vapor sample has

less alcohol it will read lower; if more

alcohol, higher.

The machine can be calibrated in

that way to assume that the vapor it reads

has been produced from a 2300 to 1

partition sample (liquid to air) by

subtracting a precise amount of alcohol

83a

from the known solution and adjusting the

scale upward to read .10 or to 1900 to 1 by

adding alcohol and adjusting the scale

downward to read .10.

Henry's Law as related to the

lungs juxtaposes blood in the lungs for the

liquid and alveolar breath in the lungs

for vapor. Some amount of alcohol is given

off from the blood to the breath. But the

lungs are not the closed laboratory

container with a solution of liquid and an

air space above. They are much more com-

plex. And that is why the actual partition

ratio in the lungs cannot be measured; it

can only be estimated by calculation.

Armed then with a Breathalyzer

calibrated to assume that the breath sample

it received would be from a source with a

partition ratio of 2100 to 1, competent

scientists have been conducting experiments

84a

to see just how good the Breathalyzer

results are when compared to blood samples

taken from subjects at the same time breath

samples are taken. In the early days Payne

conducted such experiments. Jones and

Dubowski have done an immense amount of

similar work. To a lesser degree but in a

very professional manner so have Shajani,

Lucas and Gullberg. Their synopses should

be read for an appreciation of their

techniques and various scenarios posited in

laboratory studies. In general a breath

sample read by the Breathalyzer is taken at

a particular time interval and a blood

sample is at about the same time. The

blood sample is read chemically or by gas

chromatography to three decimal places,

e.g. .117 gr. of alcohol per 100 milliliter

of blood.The Breathalyzer reads out

directly in gr. of alcohol per 210 liters

85a

of breath. In doing so it can read to

three decimal places as well. It can also

be modified (as in New Jersey) to convert

that breath reading to a presumed blood

alcohol reading. All that takes is

slipping under the needle reading a breath

scale (factory model), a cardboard scale

reading directly in assumed blood alcohol.

(D44 Ev) This is simply a mechanical 1 to

2100 conversion of the breath reading into

a blood reading (assumed). Where, for

example, the needle pointed to .117 gr. per

210 liters of breath it will still be

pointed there but the new scale will show

a point between .10 and .12% of alcohol by

weight in blood. It will be closer to .12

and can be visually estimated at .117 but

in actual use the third decimal is

"truncated" or dropped and the reading

would be reported at .11.

86a

The blood to breath’ ratio

calculates out in this fashion:

BAC = Blood Alcohol Concentration

BrAC = Breath Alcohol Concentration

With an instrument calibrated at

2100 to 1 it would be as follows fora .10%

reading.

BAC in 210 gr = 10% weight

gr. (alcohol) =

100 mil (blood) 100ml _ of alcohol

in blood

BrAC in gr. (alcohol) = .10 gr or _.10q__

210 liters (breath) 210 liters 210,000

ml.

210

—100 = .10 X 210,000 = 2100

219 1

210,000 100 -10

Thus, the ratio is gr. (blood)

x 2100

gr. (breath)

If the blood reading is .02 and the breath

is .04, the ratio would be 1050.

The blood reading determined is

not a perfect determination. As with all

analytical processes, even with more

carefully controlled procedures, there will

87a

be variations. See Borkenstein's and

Jones' synopses for example. Therefore,

when comparing breath alcohol to blood

alcohol readings it cannot be assumed, if

they do not correlate, that the blood

reading is absolutely correct. One other

very important fact to be kept in mind is

that the blood sample is either venous (in

most cases) or capillary (the early days in

' Sweden) blood - neither of which directly

and precisely reflects the amount of

alcohol in the arterial blood going to the

brain.

These "paired" samples of breath

and blood are taken from the subject over

a period of time (up to 7 or 8 hours) at

slated intervals (15 or 20 minutes).

The results then can be plotted

in curves of blood alcohol readings and

breath alcohol readings which will visually

88a

demonstrate the mathematical differences

between the two. For each "pair" a ratio

can be calculated for that moment in time,

for that individual, and a plotting of

ratios can be achieved. The results of all

of those pairs for all of the individuals

can be plotted on a scattergram which will

give a visual presentation of the various

ratios at various times for all individuals

tested. From the scattergram a "best fit"

line can be constructed to determine what

is the average ratio for all of those

points.

In this fashion, over the years,

all of the investigators agree that the

average ratio for all individuals tested

and which probably applies to the universe

of adults is 2300 to 1 (rather than 2100 to

1 which was the starting point back in

1952).

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The upshot is that the

Breathalyzer does not read a breath alcohol

converted to blood alcohol as accurately as

it could. It would do so more accurately if

it were calibrated to 2300 to 1 which seems

to be an average partition ratio in the

lungs of adults - as calculated from the

many paired blood and breath samples taken

over the years. But that does not answer

the inquiry here.

The 2100 to 1 ratio causes an

under reading of the measured blood alcohol

concentrat*on in about 85% of all of the

paired samples. Dubowski* fixes the figure

at 86%. Of the remaining 14% of the pairs

he found that in 2.6% of them the converted

¢ I use his percentages as a

framework for developing the

conclusions which follow because I

find that his work produces the most

refined and accurate percentages in

that regard.

90a

BrAC and measured BAC turned out to be the

same. In 11.4% of the pairs’ the

Breathalyzer converted reading was higher

than the measured BAC in the venous whole

blood sample taken. It is this 11.4% that

requires further investigation because it

is only there that there lies a possibility

that a subject will reckive a higher

reading (.10% or over) when his true brain

alcohol level is lower than .10%. In all

of the other cases the converted BAC will

be either lower than or equal to the true

BAC. There can be no unfair conviction in

either of those cases.

Within that 11.4% of

overreadings, there is no_- conceptual

concern where the true BAC is at least .10%

and the converted BAC is even higher. For

example, if true BAC were .11 and converted

BAC is .12, there is no unfair conviction.

91a

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On the reverse end there is no concern at

all where the converted BAC is lower than

-10 even if the true BAC is lower still.

There can be no finding of guilt (absent

traditional evidence) where the

Breathalyzer reads less than .10.

Dubowski recognizes that forensic reality

and in going through the hundreds of pairs

that he used he found that at the "critical

level" of .10 there is a_ possible

overestimation of only 2.3%.

It must be understood that the

2.3% applies to the possibility of separate

pairs from the same individual resulting in

an overestimation. It does not apply to

people.

In his experiments, as well as

those of Jones, Shajani, Lucas’7 and

Gullberg, one subject produces many pairs.

Most of them are underestimates. It does

92a

not mean that if that subject or some one

accused of drunk driving were given a test

that there is a probability that at that

particular point in time there would be an

over-estimate. He, as do Jones, Shajani,

Lucas and Gullberg, finds no overestimation

in the post-peak phase of alcohol

absorption and elimination. Whether a

person takes a single large drink of

alcohol. or a large amount spread over a

long period of social drinking; whether he

drinks on a full or empty stomach, there

comes a point, after the last intake of

alcohol, where his BAC rises to a high

point and gradually decreases as_ the

process of bodily elimination of alcohol

takes place. After that peak there are no

overestimations. The ones that take place

occur in the pre-peak or absorptive stage.

The alcohol rise is much quicker in time

93a

than its decrease. And it is not

surprising in that rapidly rising BAC

period to find the Breathalyzer reading

higher than a simultaneous venous blood

sample - because, again, it is reading

alcohol in the breath, the closest

indication of what alcohol in the arterial

blood is doing to the brain. It is known

that venous blood has not yet caught up

with the higher arterial blood reading

during the period of relatively sharp

increase. In, other words, rather than

considering the 2.3% overestimation to be

an error, it is probably correct and it is

this venous blood sample which is in error

as a predicator of what is occurring at

that moment in the brain.

; In all of his tests Dubowski has

found a range of these calculated ratios

based on paired samples from a low of 1706

94a

» oie

to 1 (one pair) to a high of 3063 to i

No two individuals have the same lung

partition ration and for one individual the

ratio varies with time as his BAC rises and

falls with absorption and elimination.

That is not surprising for Henry's Law

states that a partition ratio will vary

according to the concentration of the

volatile substance in the liquid.

The variation of the ratio stems

from this continuing change in the blood

alcohol concentration from one moment to

another and it can vary, as Dr. Hlastala

explained, by differences in lung structure

and lung health, as well as core body

temperature - Henry's Law, again - which is

usually 37° C (98.6F) but which can be

3 His range of variability is

the most acceptable of all because

of the precision of his’ test

procedure.

95a

elevated or depressed at the moment of the

test, as well as breathing patterns and

even hematocrit levels in the blood of an

individual. With all of these variables -

especially that of time for absorption, it

is impossible to say that any person has a

specific blood-breath ratio in his lungs.

Again 2300 to 1 seems to be the best

average figure for all people and all BACs.

2100 to 1 is used and gives lower than true

readings in all cases‘

except a few in the

absorptive period and as to that time, the

breath alcohol reading is more reliable

than the venous blood reading.

‘ It is quite clear that from

the standpoint of removing drunk

drivers from the highway, the vast

majority of those tested "get a

break" from the reading. It is this

fact that has led many states and

countries to legislate an alternative

breath standard to the present blood

standard, e.g. .10 gr. per 210 liters

of breath.

96a

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For the breath reading

instruments the principal problem is

getting a sample of the alveolar breath in

the lungs. It is there that one will find

the maximum concentration of alcohol trans-

ferred from the blood. That reading, deep

down inside the lungs, cannot be taken.

The best that can be obtained is what the

subject blows out. At the beginning of the

"blow" the breath will be from upper

respiratory passages where only slight

amounts of alcohol might be present. That

is why, in order to get a realistic and

meaningful breath sample the subject is

instructed to blow steadily; the first

breath received is simply passed through

the measuring chamber and the operator

traps only what he deems to be

"end-expiratory" breath (the closest one

can come to true alveolar breath) for the

97a

reading. To the extent that "end

expiratory" breath is not obtained, the

reading will be lower than it should be.

That factor, too, can drastically affect

the "paired" ratio developed.

The so-called variation in

blood-breath ratios is a useless chase,

except as noted, to get a sense of where

the average figure lies. As he, Dubowski,

terms it, a blood-breath "ratio" is a

"moving target"; it is only a mathematical

calculation and it proves nothing with

regard to the reliability of the test.

The best proof of reliability of

the reading is the second test. The two

tests 15 minutes apart eliminate the pos-

sibility of mouth alcohol falsely elevating

a reading; if they are with + 10% of one

another (.01 at the .10% level) one can

have confidence in the results and if the

98a

7 P Calas T

aeee

lower of the two is used for proof, the

subject receives an additional benefit (50%

lower than if the readings were averaged).

if, the two tests differ by more than .01

(at a .10% level) a third test should be

given to be sure that a variation of .01

or less is obtained - and then the lower of

the two readings should be used.

99a

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CONCLUSIONS OF FACT

1. The Breathalyzer,

Models 900 and 900A, is a scientifically

reliable and accurate device for

measurement of the alcohol content of the

breath of an individual (assuming proper

functioning of the instrument and a

qualified operator).

2 In converting at a ratio

of 1 to 2100 the breath = alcohol

concentration present in the individual's

blood, tne Breathalyzer reading is not

scientifically accurate.

3. Calculated blood/breath

ratios are worthless for forensic purposes.

They are subject to so many variables as to

be unusable except for gross estimates of

an individual's true lung partition

100a

ratio - and then only at a particular

moment in time. (Borkenstein, Dubowski,

Payne, Jones, Lucas).

4. In a prosecution for

drunk driving the Breathalyzer calibrated

at 2100 to 1 vapor/alcohol ratio,is biased

in favor of the accused.

A. It under-reads the

average individual by

some 9% or 10% compared

to a venous whole blood

sample that might be

simultaneously taken.

B. Its "truncated" reading

gives the individual the

benefit of anywhere

from .001 to .009 ona

given test reading.

C. Using the "start

line" set on the

10la

a particular moment in time.

Breathalyzer scale

gives the individual

he benefit of another

-003 on any test

reading. (All experts

agree with the

foregoing)

D. The lower value of

two consecutive

readings taken 15

minutes apart is used

for proof.

5. The Breathalyzer gives a

correct reading of alcohol in the breath at

distinguish between pre-peak "absorptive"

or post-peak "post absorptive"

the intake and elimination of alcohol in

102a

It does not

stages 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 state. In the pre-peak state the

Breathalyzer reading is more accurate in

predicting the amount of alcohol affecting

the brain that is a venous blood sample

and it cannot be empirically demonstrative

that it is in error, so long as two breath

readings are taken within 15 minutes of

each other; do not differ by more than .01%

and the lower of the two is used for proof

purposes - (Jones, Shajani, Dubowski,

Lucas).

103a

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7. To give readings that can

be used with confidence, the operator must

be sure that at least 20 minutes has

expired since the last ingestion of alcohol

to avoid the presence of "mouth" alcohol

which can give a falsely high reading.

104a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.