holding in State v. Hardy, 211 N.J. Super. 630 (App. Div.
1986).
- Standard Inspection Procedures for Breath Test
Instruments
State v. John M. Garthe, 145 N.J. 1 (1996), ruled that
absent evidence demonstrating that the standard
inspection, testing and certification procedures estab-
lished by the State Police is not scientifically reliable to
establish that Breathalyzer instruments are in proper
operating order, the State may, subject to N.J.R.E.
803(c)(6), 803(c)(8), 807 and 901, offer in evidence at
DWI trials a copy of the Breath Test Inspector’s
Inspection Certificate. It recognized that Breath Test
Instrument Inspection Certificates (N.J.A.C. 13:51-3.4)
are prepared accurately, carefully, competently and have
a strong and convincing indices of trustworthiness.
State v. Ernst, 230 N.J. Super. 238, 243-244 (App.
Div. 1989), certif. denied 117 N.J. 40 (1990), rejected a
defense claim of a failure to produce proof of random
sampling of the breath test reagent ampoules. The
instrument inspection certificate, signed by the Breath
Test Coordinator, indicating that the Trooper had tested
random samples of the breath test reagent ampoules from
the same batch as those used to test the defendant, was
sufficient to satisfy the requirement of “spot checking,” as
stated in State v. DeVito, 125 N.J. Super. at 479 and State
v. Dickens, 130 N.J. Super. 73, 79 (App. Div. 1974).
In State v. Maure, supra, the Appellate Division
reversed the trial court’s ruling, which had been based on
the holdings in Dohme I & II that the pre-test and post-
test instrument inspection certificates were inadmissible
because the certificates provided no basis for an inference
that the breath test reagent ampoules used in the
Breathalyzer had been randomly tested and were
homogeneous. 240 N.J. Super. 269. The court also held
that the “that spot checking of random ampoules by
trained members of the State Police is sufficient prima
facie proof that ampoules used in testing the defendants
were properly constituted and mixed to proper
proportions, effectively overruling the contrary holdings
in Dohme I & II. The court found the law was well settled
that the spot checking of a random ampoule of the same
batch is sufficient prima facie proof that the chemicals in
the test ampoule were of the proper kind and mixed to
proper proportions. It was satisfied that foundational
requirements are satisfied by admitting the State Police
Coordinator’s certification indicting that random sample
testing of ampoules from the same batch that was used in
the defendant’s Breathalyzer tests has been conducted
both before and after those examinations. 240 N.J. Super.
at 281. The court was unwilling to cast the burden on
the State of offering further or additional proof of the
accuracy and validity of the tests. Id. at 282-3.In State v. Dohme (II), 229 N.J. Super. 49 (App. Div.
1988), following a remand for an evidentiary hearing
from State v. Dohme (I), 223 N.J. Super. 485 (App. Div.
1988), the Appellate Division incorrectly held that for
the instrument inspection certificates to be accepted as
foundation proof of the operability and accuracy of the
breath test instrument the State had to offer additional
evidence of the testing of the breath test reagent ampoules
by an approved testing laboratory. This holding has
effectively been overruled by State v. Maure, 240 N.J.
Super. 269 (App. Div. 1990), aff’d o.b. 123 N.J. 457
(1991).- Expert testimony (See also, EVIDENCE, this
Digest)
State v. Benas, 281 N.J. Super. 251 (App. Div.1995),
held that expert testimony regarding depletion of the
control sample used to certify the machine was too
speculative and insufficient to support a viable attack on
the accuracy of the Breathalyzer test. See also State v.
Slinger, 281 N.J. Super. 538 (App. Div. 1995); State v.
Maida, 332 N.J. Super. 564 (Law Div. 2000).State v. Tischio, 107 N.J. 504 (1987), app. dism.,
Tischio v. N.J., 484 U.S. 1038, 108 S.Ct. 768, 98
L.Ed.2d 855 (1987), discussed at length that the
primary purpose of the DWI legislation was to eliminate
the necessity for expert and other testimony relating to
the existence and degree of intoxication and concluded,
citing State v. Johnson, 42 N.J. 146, 171 (1964), that
Breathalyzer test results are admissible upon a simple
certification as to the operability and accuracy of the
Breathalyzer instrument used to perform the test, that
expert testimony attacking the accuracy and reliability of
Breathalyzer tests, while ‘probably technically still
admissible,’ had virtually no probative value.In other cases the Supreme Court has strongly
counseled against accepting of expert witnesses in DWI
cases, particularly where the evidence does not remotely
suggest there is even a reason to suspect the breath tests
administered were not correct. State v. Downie, 117 N.J.
450, 468 (1990), cert. denied 498 U.S. 819, 111 S.Ct.
63, 112 L.Ed.2d 38 (1990); State v. Hammond, 118 N.J.
306, 317 (1990); State v. Lentini, 240 N.J. Super. 330,
334-336 (App. Div. 1990); State v. Snyder, ____ N.J.
Super. ___, 2001 W.L. 83258 (App. Div. 2001).