525 (App. Div. 1978) that a DWI offense is not limited
to public roads and highways.
In State v. Lutz, 309 N.J. Super. 317 (App. Div.
1998), the Appellate Division, citing State v. Lentini, 240
N.J. Super. 330, 332 (App. Div.1990), stated, “[s]uch a
reading established a per se offense of driving under the
influence even in the absence of any additional evidence
of intoxication or impaired ability to drive.”
In State v. Sisti, 209 N.J. Super. 148 (App. Div.
1986), trial judges were instructed that where there are
proofs of guilt, with and without Breathalyzer readings,
the trial court was to make findings of fact and
conclusions on both bases. Id. at 151. The court,
following the line of reasoning adopted in State v.
D’Agostino, 203 N.J. Super. 69 (Law Div. 1984),
concerning the duality of the DWI offense under N.J.S.A.
39:4-50, held that municipal court judges, in N.J.S.A.
39:4-50 cases where there are proofs of guilt, with and
without Breathalyzer readings, should make findings and
conclusions on both bases. Failure to do so is unfair to
defendants, the State, the attorneys and the Appellate
Courts. However, in State v. Locurto, 157 N.J. 463
(1999), the Supreme Court noted that the holding in
Sisti did not require the trial judge to enunciate
credibility findings when the record as a whole made the
credibility findings clear.
In State v. Allex, 257 N.J. Super. 16 (App. Div. 1992),
the Appellate Division rejected the contention advanced
in State v. Ghegan, 213 N.J. Super. 383 (App. Div. 1986),
that subjective medical evidence from a medical expert is
admissible to countervail the results of a properly
administered breath test.
In State v. Lentini, 240 N.J. Super. 330 (App. Div.
1990), where the breath test results were recorded as
0.10%, the defense offered expert testimony that
purported to claim the accuracy of the result was subject
to a tolerance of plus or minus 0.01% and therefore the
result should be read as 0.09%. The court viewed this
argument as a question of legislative intent and noted that
a per se violation occurs if a person with a 0.10% blood
alcohol concentration operates a motor vehicle, citing
State v. D’Agostino, 203 N.J. Super. 69, 73 (Law Div.
1984). Then, citing the holding in Tischio, 107 N.J. at
514 discussing the “dominant legislative purpose” of
N.J.S.A. 39:4-50, and that a per se violation is deemed as
a “bright line” test, the court rejected the defense claim
of a tolerance as seeking to “blunt the Legislature’s resolve
by giving new vigor to the probative value of expert
testimony in the interest of eliminating a possible 1/
100th of a per cent.” 240 N.J. Super. at 335. Under this
holding, a breath test result of 0.10% or more is the
reading and the result and satisfies the burden of proof for
a per se violation of N.J.S.A. 39:4-50, provided the State
has otherwise satisfied the foundational proofs of proper
training of the operator, proper operation of the
instrument, and compliance with the check list in
operating the instrument. Id. at 336.I. Field Sobriety TestingIn State v. Maida, 332 N.J. Super. 564 (Law Div.
2000), the Law Division, on municipal appeal,
determined that horizontal gaze nystagmus (HGN)
testing, as administered by the police officer as part of a
standardized field sobriety test, was admissible as
scientific evidence of intoxication. The Law Division
found, following the expert testimony of Dr. Marcelline
Burns concerning her validation studies of HGN for
NHTSA and Dr. Jack Richman concerning his clinical
research on the relationship of alcohol and eye
movement, that HGN testing is “generally accepted by
the scientific community are a reliable scientific indicator
of likely intoxication.” Id. at 572. In addition, the Law
Division held that a certificate of the Breathalyzer’s
accuracy was sufficient to prove the defendant was
intoxicated based upon the breath test readings. The
Court also found that the clue point system (the number
of times defendant faltered during a field sobriety test)
testimony was admissible because it involved only the
officer’s observations of defendant’s behavior and
demeanor, and that failing to videotape defendant at
police headquarters did not violate due process.Maida was rejected in State v. Doriguzzi, 334 N.J.
Super. 530 (App. Div. 2000), which held that the results
of horizontal gaze nystagmus (HGN) testing, as
administered by a police officer as part of a standardized
field sobriety test, will not be admissible to prove a
defendant was intoxicated in a DWI prosecution, unless
and until the State proves that HGN is generally accepted
in the scientific community, as required by the Frye test.
The Appellate Division found “HGN testing to be
scientific,” and declined to admit HGN testing unless its
reliability has been demonstrated by expert testimony,
scientific writings, or judicial opinions. See, State v.
Harvey, 151 N.J. 117, 166-176 (1997), cert. denied, 528
U.S. 1085 (2000). In the absence of any expert
testimony by the State, the Appellate Division undertook
an examination of the relevant scientific writings and