State v. Hudes

• Decision Date: 16 May 1974
• Citation: 128 N.J.Super. 589,321 A.2d 275
• Parties: STATE of New Jersey, Plaintiff, v. Howard R. HUDES, Defendant. (Criminal), New Jersey
• Court: New Jersey County Court

Page 589

128 N.J.Super. 589

321 A.2d 275

STATE of New Jersey, Plaintiff, v. Howard R. HUDES, Defendant.

Bergen County Court, Law Division (Criminal), New Jersey.

May 16, 1974.

Alice Meyer, Asst. Prosecutor for the State; Joseph C. Woodcock, Prosecutor of Bergen County, attorney.

Leopold A. Monaco, Westwood, for defendant; Monaco & Oratio, Westwood, attorneys.

PETRELLA, J.C.C.

Defendant appeals De novo, on the record below, to the Bergen County Court from a January 23, 1974 judgment of the Hillsdale Municipal Court finding him guilty of operating a motor vehicle while his ability was impaired, in violation of N.J.S.A. 39:4--50(b), and imposing a $50 fine, $10 costs, and a six-month revocation of license, which were stayed pending this appeal.

The record supports the findings that at approximately 1:25 a.m. on November 23, 1973 a Hillsdale police officer had his attention drawn to a car backfiring, followed it for approximately one-half mile before stopping it, and during that distance observed it weave or swerve across the highway center line on six separate occasions. Defendant, after exiting his vehicle, was unsteady on his feet, he 'swayed', 'staggered' and 'seemed unsure of himself,' and had difficulty producing his operator's license and vehicle registration. The arresting officer and a backup officer testified to 'a strong odor of alcoholic beverage' on defendant's breath. The defendant admitted he had consumed several beers. He was placed under arrest at the scene and taken to headquarters where certain coordination tests and a breathalyzer test were performed.

Defendant was advised of his right under N.J.S.A. 39:4--50.2(c) to have independent tests made by a person of his own selection. He consented to the breathalyzer test, but also demanded a blood test. He was told he could go to a qualified doctor or hospital and have a specimen taken, but was allowed no opportunity to do so before the two breathalyzer tests were administered between 2:15 and 2:30 a.m. Because of defendant's initial reluctance to post a $100 bond he did not leave the police station until about 4:25 a.m., which was after his mother arrived. There is no indication in the record below of whether defendant did or did not go for any independent blood test upon release.

The physical coordination tests given at police headquarters included a finger-to-nose test (which defendant missed four out of five times); leaning over forward and then backward (defendant performed well on the leaning forward part, but lost ballance leaning backward), and a straight-line walking test (which required 'much effort') as well as some other tests, including speech.

The municipal judge received into evidence, over objection as hearsay, two inspection certificates for the municipality's one breathalyzer machine, which indicated that on dates prior to and after it was used to test defendant, I.e. October 18, 1973 and December 21, 1973, respectively, the machine was inspected by a State Police 'coordinator' and found to be in proper working order. This coordinator covers a wide area of the State, performing inspections of breathalyzer machines used by law enforcement agencies. By virtue of special training he may often testify as an expert on certain machine functions and its operation, as well as concerning the ampoules used. The municipal judge admitted the two inspection certificates into evidence under Evid.R. 63(13), entitled 'Business Entries,' as an exception to the hearsay rule. The results of the two breathalyzer tests of defendant both showed 0.11% Of alcohol in his blood. There was no objection to the operator's qualifications nor to the manner, described in detail, in which he prepared, tested and operated the breathalyzer.

The officer conducting the physical tests and the breathalyzer tests used certain standardized forms, including an alcohol influence report, to record the test results and other information, including a description of physical condition. The forms for recording the machine-scale readings were introduced into evidence with the testimony of the operator that they were those prepared by the breathalyzer manufacturer. The alcohol influence report was a local form, common to that in use in the county and throughout the State, and appears modelled after the New Jersey State Police Alcohol Influence Report Form, labelled 'S.P. 111 (Rev. 9/69).' Defendant objected that there was no proof that the local form used was authorized by the Attorney General's office pursuant to N.J.S.A. 39:4--50.3, although a comparison makes it obvious that the forms are substantially idnetical.

This appeal is on various grounds: first, that the certificates indicating the breathalyzer inspection should not have been admitted without the testimony of the trooper coordinator; second, if the certificates were inadmissible, the breathalyzer test results should not have been admitted; third, that the alcohol report forms should have been those authorized by the Attorney General, and fourth, that defendant was not allowed to have independent blood tests made by a person of his own selection and defendant urges this should render the breathalyzer results inadmissible.

I

The Certificate of Operability of the Breathalyzer Was

Properly Admitted Into Evidence.

Defendant asserts the trial court mistakenly admitted into evidence the certificates of operability of the breathalyzer, without allowing him an opportunity on the State's case to cross-examine the qualifications and findings of the trooper coordinator. The qualifications of the machine operator were not questioned based on his operator certification by the Attorney General.

A

Defendant relied in the trial court, as in this appeal, on so much of State v. Conners, 125 N.J.Super. 500, 311 A.2d 764 (Cty.Ct.1973), which indicates that while the lay evidence there sustained the conviction, such certificates should be inadmissible under the business records exception to the hearsay rule, Evid.R. 63(13). Of course, this court is not bound by the decision of a trial court of equal jurisdiction. Ferraro v. Ferro Trucking, 72 N.J.Super. 519, 523, 179 A.2d 74 (Law Div.1962), and see, Lackovic v. New England Paper Tube Co., Inc., 127 N.J.Super. 394, 398, 317 A.2d 426 (Law Div.1974).

The argument can be summarized by two quotations, the latter limits the scope of the former. It was stated in State v. Miller, 64 N.J.Super. 262, 165 A.2d 829 (App.Div.1960), while discussing the predecessor to the more modern breathalyzer:

The Drunkometer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test, without any need for antecedent expert testimony by a scientist that such reading is a trustworthy index of blood alcohol, or why. (at 268, 165 A.2d at 832)

The requirements for use of such tests were spelled out in State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964):

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing). (at 171, 199 A.2d at 823)

In this case the breathalyzer was certified as in proper operating condition on dates prior to and after defendant was tested, and there was testimony of the operator who checked the machine that he found it functioning properly before he used it. This is certainly Prima facie proof that the machine was in proper order. The coordinator would not add significantly to this under the circumstances. In fact, the evidence, whether by the inspection certificates, coordinator, or both, is, and perforce must be, largely circumstantial--unless it is to be a requirement that the coordinator must be present during the actual administration of each test. The acceptance of the breathalyzer as a scientifically reliable and accurate device makes additional testimony unnecessary in the usual case unless there is some special circumstance requiring a full scientific hearing on the accuracy of a particular machine. Cf. State v. Salup, 128 N.J.Super. 209, 319 A.2d 739 (App.Div.1974); State v. Finkle, 128 N.J.Super. 199, 319 A.2d 733 (App.Div.1974) (taking judicial notice of scientific accuracy of VASCAR).

But such a determination is not always required. For instance, in State v. DeVito, 125 N.J.Super. 478, 311 A.2d 753 (App.Div.1973), the Appellate Division held the use of a random test sample of the ampoule used in the administration of a breathalyzer test was sufficient Prima facie proof that the chemicals in anyone ampoule were of the proper kind and mixed to the proper proportion. Although the DeVito case indicates that the State had proved the breathalyzer was in proper working order, it is not clear from the opinion whether the state trooper coordinator testified.

That these machines are not often inaccurate or prone to failure was discussed in State v. Lanahan, 110 N.J.Super. 578, 266 A.2d 323 (Cty.Ct.1970), which approved the Attorney General's administrative order changing the periodic testing of breathalyzer instruments from monthly to bimonthly. The court there made reference to the experience of accuracy and reliability of the instrument and the lack of malfunctioning as warranting the change in the time period. Such testimony was given in Lanahan by the state testing coordinator for breathalyzers and drunkometers. The conviction was upheld although the machine had been testd and was found in operating condition eight days before the defendant was tested, but the next test had not been conducted before the time of the trial. 110 N.J.Super. at 581--583, 266 A.2d 323. Thus, the only relevant...