State v. Hunter.
| Decision Date | 01 September 1949 |
| Docket Number | No. A-86.,A-86. |
| Citation | 68 A.2d 274 |
| Parties | STATE v. HUNTER. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Clayton L. Hunter was convicted for the second time of operating a motor vehicle while under influence of intoxicating liquor and sentenced to 90 days in jail and permanent revocation of his driver's license.
The City Court of the City of Plainfield denied his motion for a new trial on ground of newly discovered evidence that a torsion instead of an analytical balance was used in conducting the Harger breath test and defendant appeals.
The Superior Court, Appellate Division, William J. Brennan, Jr., J.S.C., reversed the order and remanded the case for a new trial, holding that failure to discover until after judgment that torsion instead of analytical balance was used in conducting test on which conviction depended did not show lack of due diligence. It further held that evidence as to type of scale used entitled defendant to a new trial on ground of newly discovered evidence.
Before Judges JAYNE, DAVIDSON and WILLIAM J. BRENNAN, J.
John F. Ryan, Elizabeth, for appellant.
Edward J. McDonough, Plainfield, for respondent (Salvador Diana, Corporation Counsel of the City of Plainfield, Plainfield, and Edward Cohn, Prosecutor of Union County, Elizabeth, on the brief).
The opinion of the court was delivered by
Defendant appeals his conviction for drunken driving and the ninety-day jail sentence and permanent revocation of his driver's license imposed as penalties under the mandate of R.S. 39:4-50, N.J.S.A. because this was his second conviction for violation of that statute. He also appeals from an order denying him a new trial for which he had applied on the ground of newly discovered evidence.
We find it unnecessary to consider the appeal from the judgment of conviction as we think the trial court erred in denying defendant a new trial.
It appears from the statement of the case that the trial court would have acquitted the defendant except for the evidence produced by a device known as the Harger Breath Test or Drunkometer, upon which evidence the city physician predicated his testimony as to defendant's blood alcohol concentration.
Settled medical opinion apparently is that any person is unfit to drive when his blood alcohol concentration is at or in excess of fifteen-hundredths of one per cent. When the concentration is less than this, a person may or may not be unfit to drive depending upon individual characteristics and reaction to alcohol. The city physician determined defendant's concentration to be over sixteen-hundredths of one per cent and solely on this finding, testified that defendant was unfit to drive at the time of his arrest.
The test made by the physician was not a blood analysis but a breath test. The Harger Drunkometer determines the weight of alcohol in one cubic centimeter of breath. Two thousand times this weight represents the alcohol concentration in one cubic centimeter of blood.
The Harger instrument is ingeniously contrived. Its important components are a rubber balloon and two tubes containing certain chemicals. One tube contains alcohol sensitive chemicals and the other, called an ascarite tube, contains a carbon dioxide absorbent.
The breath of the person tested is captured in the ballon by his voluntary inflation of it. The breath is released into the tubes and a color change appears in the tube sensitive to alcohol when one hundred sixty-nine thousandths of a milligram of alcohol has been absorbed by the chemicals in it. A third or control tube contains a liquid for color comparison. Simultaneously the carbon dioxide from the breath passing through the system is absorbed by the ascarite tube. The weight of the absorbed carbon dioxide represents five and one-half per cent of the weight of the breath from which the stated quantity of alcohol is absorbed. Thus the breath alcohol concentration is arrived at by simple arithmetic when the weight of the absorbed carbon dioxide is known.
The key step in the process is the determination of the weight of the absorbed carbon dioxide. This is done by weighing the ascarite tube before and after it absorbs the carbon dioxide. The difference in weight is so minute as that its detection requires the use of a scale of great sensitivity, ‘an analytical balance, to a very fine degree, down to a tenth of one milligram,’ was the testimony of the state's expert witness.
One ounce avoirdupois is the equivalent of 28,350 milligrams. A scale sensitive to one-tenth of a milligram must be capable of resolving a weight change of that part of an ounce expressed by the fraction 1 over 283,500.
The physician testified that he conducted the test in the ‘approved’ manner. He said he used a pharmacist's scale at a local drug store, but did not otherwise describe it. He seems also to have exhibited at the trial a pamphlet of instructions outlining the Harger test and in which was a photograph of an analytical balance. His testimony was completed on May 21, 1948, at which time the trial judge reserved a ruling as to its admissibility pending the production of expert testimony on the Harger device itself. This was received July 29, 1948. The expert several times in the course of his testimony emphasized that the weights of the ascarite tube before and after absorption of the carbon dioxide must be determined ‘to a very accurate degree’ ‘on an analytical balance’; ‘to complete this test we must have an analytical balance available,’ ‘it is not furnished as part of the (Harger) apparatus.’
The defendant's counsel discovered after the judgment of conviction that the druggist's scale used by the physician was not an analytical balance but of torsion balance design. The State conceded at the oral argument on the appeal that a torsion balance was used. Its sensitivity does not appear, but it seems that commercially available pharmaceutical torsion balances are not sensitive below two milligrams. See Modern Laboratory Appliances, Eimer and Amend (1942), pages 39 and 60. Such a scale is capable of resolving a weight change of only that part of an ounce which is expressed by the fraction 1 over 14,175. An analytical balance sensitive to onetenth of a milligram has twenty times more resolving power.
Defendant promptly moved for a new trial, which was denied by the order on appeal made February 11, 1949.
Motions for new trials for newly discovered evidence are not favored and are properly entertained with caution by trial courts. But when the elements justifying a new...
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...26 N.J.Super. 268, 271, 97 A.2d 715 (App.Div.1953), rev'd on other grounds, 24 N.J. 128, 130 A.2d 809 (1957); State v. Hunter, 4 N.J.Super. 531, 536, 68 A.2d 274 (App.Div.1949). These guidelines are equally applicable to motions made within ten days of the court's judgment under R. 4:49-1. ......
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...recognized in this State, even before the adoption of the statute by Judge (now Mr. Justice) Brennan in State v. Hunter, 4 N.J.Super. 531, 534, 68 A.2d 274 (App.Div.1949). See also State v. Protokowicz, 55 N.J.Super. 598, 602, 151 A.2d 396 (App.Div.1959). The experts testifying at the Senat......
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