State v. Benas
| Decision Date | 16 March 1995 |
| Citation | 657 A.2d 445,281 N.J.Super. 251 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Warren H. BENAS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
John P. Libretti, Hackensack, for appellant.
John J. Fahy, Bergen County Prosecutor, for respondent (Susan W. Sciacca, Asst. Prosecutor, of counsel and on the letter brief).
Before Judges PRESSLER and LANDAU.
Defendant Warren H. Benas was convicted of a charge of driving while intoxicated, N.J.S.A. 39:4-50, following a trial de novo in the Law Division on the record made in the municipal court. Minimum mandatory penalties prescribed by statute for a first offender were imposed. Defendant appeals, raising the single issue that the trial court erred by admitting the results of the breathalyzer tests administered after his arrest. We affirm the judgment of conviction.
We note at the outset that this conviction was based primarily on the breathalyzer test, whose two readings were .10 and .11, and hence that the validity of the conviction depends on the admissibility of those results. It is also clear that in order for the results to be admissible, the State must establish that the test was properly administered, and proof of proper administration "includes full proof that the equipment was in proper order, the operator qualified and the test given correctly...." State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809 (1964). See also Romano v. Kimmelman, 96 N.J. 66, 90, 474 A.2d 1 (1984). Defendant contends that the breathalyzer machine used here was not adequately demonstrated to have been in proper working order because the State did not prove that the simulator solution used by the State Police coordinator in testing the machine prior to issuing his inspection certification was of the correct concentration. We reject that contention.
Defendant relies on the expert testimony of a former State Police officer, David Ditze, who has extensive experience in and knowledge of breathalyzer machine testing. We consider that testimony in the context of the role of the simulator solution in the breathalyzer process.
In State v. Maure, 240 N.J.Super. 269, 275-277, 573 A.2d 186 (App.Div.1990), aff'd o.b., 123 N.J. 457, 588 A.2d 383 (1991), Judge Baime explained the function of the simulator solution in testing the machine and its relationship to the ampule used in the administration of the breathalyzer test. The test ampule is a sealed cylinder containing the chemical solution of potassium dichromate, silver nitrate, and sulfuric acid whose reaction with alcohol vapor is the basic predicate of the breathalyzer's operation. In the actual performance of the breathalyzer test, the subject blows into the machine, and if there is alcohol vapor in his breath, it will react with the potassium dichromate in such a way as to fade the color of the solution. The shades of color are detected by a photoelectric cell which transmits that information for translation into the meter reading. The paler the color, the higher the breathalyzer reading.
Key to the proper operation of the machine, therefore, is the proper constitution of the chemical solution in the ampule. In order to assure the chemical accuracy of the ampules used in the breathalyzer process, they are required to be certified by an independent testing laboratory. The laboratory procedure is to randomly test twenty-five of the ampules of each batch made by the manufacturer, a batch consisting of 25,000 ampules. A copy of the laboratory's assay certificate, issued when it is satisfied that the test ampules meet the required chemical standards, accompanies each box of twenty-five ampules from the same batch sent by the manufacturer to the ultimate user. Thus the ampules have already been certified both when they are used in the required periodic testing of the machine by the State Police coordinator and in administering the actual breathalyzer test.
As part of the procedure followed during the inspection, the coordinator tests the machine by using a simulator solution instead of the test...
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State v. Friedrich
...results, based on stock solution's lack of shelf-life study and dating, is too theoretical and speculative. See State v. Benas, 281 N.J.Super. 251, 657 A.2d 445 (A.D.1995). Given the undisputed testimony that there is but a short time period involved during which the three-ounce bottles of ......
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State v. Slinger
...test ampoules in Maure, id. at 285, 573 A.2d 186, and there is no reason to follow a different course here. Cf. State v. Benas, 281 N.J.Super. 251, 657 A.2d 445 (App.Div.1995) (holding that the State need not prove that the simulator solution was itself tested to determine whether, at the t......