State v. Garthe
| Decision Date | 27 June 1996 |
| Citation | 678 A.2d 153,145 N.J. 1 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. John M. GARTHE, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
At approximately 10:20 p.m. on January 25, 1992, a Spring Lake Police Officer on routine patrol stopped defendant John Garthe on Ocean Avenue for speeding. After observing defendant "fumble through his wallet," the officer detected "a strong odor of alcohol" on defendant's breath. Suspecting that defendant was under the influence of alcohol, the officer asked the defendant to step out of the car. Defendant experienced some difficulty climbing out of the car. When the officer inquired about the contents of two red plastic cups on the car's console, defendant replied that they contained vodka and soda. By that time another officer had arrived on the scene. When defendant exhibited poor balance At police headquarters, defendant consented to a breathalyzer test. The arresting officer, a certified breathalyzer operator, performed tests at 11:31 p.m. and 11:41 p.m. using a Smith & Wesson Model 900 breathalyzer. 1 Both tests indicated a .13 per cent blood alcohol content (BAC). Following the tests, defendant admitted to drinking six beers since 6:30 p.m. at the Belmar Fishing Club. Based on the breathalyzer readings and defendant's admission of drinking, the officer charged defendant with driving while intoxicated and other motor vehicle offenses.
during roadside tests, that officer placed Garthe under arrest for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50.
To establish at the municipal court trial that the breathalyzer was in proper operating order, the State planned to offer a certified copy of a Breath Test Inspector's Inspection Certificate (BTIIC or Inspection Certificate). Before trial, defendant moved to exclude the breath test readings on the basis that the State failed to comply with the procedural and substantive due process requirements of the Administrative Procedure Act in establishing its breathalyzer testing procedures.
Defendant also argued that in the absence of promulgated inspection procedures, a court could not take judicial notice of any Rejecting defendant's arguments that the certificates were inadmissible as business or official records, the municipal court found defendant guilty of a per se violation of DWI. N.J.S.A. 39:4-50(a) provides that "[a] person who operates a motor vehicle ... with a blood alcohol concentration of 0.10% or more by weight of alcohol in the defendant's blood" is guilty of DWI and subject to the punishments established for that offense. The court fined defendant $250.00, directed that he serve twelve to forty-eight hours in an Intoxicated Driver Resource Center over a two-day period, and, in addition to imposing other costs and fees, revoked his license for six months.
facts that would clarify the meaning of certain conclusionary language on the face of the inspection certificates, such as "OK" or "within acceptable tolerances." Thus, defendant argued that the opinions and conclusions of the State Police inspector on the face of the inspection certificates would be hearsay statements, not probative of the working condition of Garthe's breathalyzer instrument, and would fall under no exception to the hearsay rule
The Law Division reimposed defendant's conviction after a trial de novo. That court again rejected defendant's argument that the inspection certificates were inadmissible as hearsay because the certificates of inspection used to certify that the machines were in working order required discretionary conclusions rather than objective and quantifiable findings based on defined standards. The court stayed defendant's sentence pending appeal to the Appellate Division.
On appeal, the Appellate Division reversed in an unreported opinion. It held that although inspection certificates certifying the machine's calibration before and after the defendant's testing were admissible as business records, the absence of any identifiable standards used by the officer certifying the proper functioning of the breathalyzer instrument rendered the certificates useless to establish by clear and convincing proof that the machine was in proper working order at the time of defendant's breath test. In the absence of such standards, the court believed that it "was The present certificates, properly in evidence as an exception to the hearsay rule, only placed before the court the conclusion of the breathalyzer inspector that in the inspector's opinion the machine tested within "acceptable tolerances" and that the various working systems in the instrument functioned "O.K." The court, however, had no way of knowing what that meant.
being asked to accept on blind faith the subjective conclusions of the inspector." It reasoned that "[i]f there were published regulations setting forth what standards or deviations from such standards would constitute proper working order or acceptable tolerances, perhaps the abbreviated report of the results might be acceptable." It thus concluded
We granted the State's petition for certification to review the reversal of defendant's conviction. 143 N.J. 321, 670 A.2d 1062 (1995).
II
Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 478 A.2d 742 (1984), sets forth the test to apply when determining whether an agency action constitutes rulemaking:
[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.
All of those factors need not be present for an agency determination to constitute rulemaking and are to be balanced according to weight, not number.
Obviously, not every action of a State agency, including informal action, is subject to the formal notice and comment requirements of N.J.S.A. 52:14B-4. In making this qualitative determination, we have generally considered: (1) the segment of the public to be affected by the administrative action; (2) the generality of application of the agency action; (3) the prospectiveness of the result; and (4) the novelty of any legal standard announced. George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 18, 644 A.2d 76 (1994) (citation omitted).
We are satisfied that, giving proper weight to the factors, the action of the State Police in setting forth procedures to test breathalyzer machines is more like an intra-agency memorandum than rulemaking. Regulations generally are needed when the affected public must conform its conduct with the governmental directive. Although this agency action (promulgation of test procedures) ultimately affects the general public, the agency action does not, in any sense, shape the conduct of the public. The conduct of the public is fully circumscribed by the provisions of N.J.S.A. 39:4-50 to -51a, the drunk driving statutes.
Nor do we view those test procedures as setting forth "a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization." Metromedia, supra, 97 N.J. at 331, 478 A.2d 742. The legal standards and directives for testing breathalyzers stem from this Court's decision in Romano v. Kimmelman, supra, that the machine must be in "proper working order" at the time of the test. 96 N.J. at 82, 474 A.2d 1. We are informed that the test procedures were derived from the manufacturer's recommendations. A number of prior decisions had referred to the standards and procedures used to test breathalyzer machines. E.g., State v. Maure, 240 N.J.Super. 269, 573 A.2d 186 (App.Div.1990), aff'd, 123 N.J. 457, 588 A.2d 383 (1991); State v. Slinger, 281 N.J.Super. 538, 658 A.2d 1299 (App.Div.1995).
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