State v. Laurick

• Decision Date: 28 February 1989
• Citation: 555 A.2d 1133,231 N.J.Super. 464
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. David J. LAURICK, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 464

231 N.J.Super. 464

555 A.2d 1133

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. David J. LAURICK, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Dec. 6, 1988.

Decided Feb. 28, 1989.

Jay G. Trachtenberg argued the cause for defendant-appellant and cross-respondent (Barbara A. Nyquist on the briefs).

Stephen H. Monson, Deputy Atty. Gen., argued the cause for plaintiff respondent; Larry R. Etzweiler, Deputy Atty. Gen., argued the cause for cross-appellant (Cary Edwards, Atty. Gen. of New Jersey, attorney; Stephen H. Monson and Larry R. Etzweiler on the brief).

Before Judges ANTELL, DREIER and HAVEY.

The opinion of the court was delivered by

HAVEY, J.A.D.

After defendant's motion to suppress the results of his breathalyzer tests was denied, he entered a conditional guilty plea in the Superior Court, Law Division, to driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. In a reported opinion at 222 N.J.Super. 636, 537 A.2d 792 (Law Div.1987), Judge Haines found that defendant was a first offender and sentenced him to a six-month revocation of his driving privileges together with a fine of $250.

On appeal, defendant claims that his breathalyzer test results should have been suppressed because the breathalyzer utilized by the State Police, a National Draeger, Model 900, has not been certified pursuant to N.J.A.C. 13:51-3.2 as an approved method of breath testing. He also argues that the applicable regulations for testing and certifying methods and instruments for breath testing are void for vagueness. Finally, he contends that the trial court abused its discretion in denying his discovery demand that the State produce "relevant and material" evidence pertaining to the Breathalyzer, Model 900. On its cross-appeal, the State asserts that the trial court erred in not sentencing defendant as a second offender. We now affirm.

Defendant was arrested in 1985 in North Hanover Township for driving while under the influence. He was transported to the Fort Dix Police Barracks where the State Police administered two breath tests utilizing the Draeger Breathalyzer, Model 900. Defendant stipulated that the results of these tests revealed a blood-alcholol level in excess of 0.10%. See N.J.S.A. 39:4-50(a).

Defendant moved to suppress the breath test results, contending that the State failed to have the Draeger machine tested and certified as required by N.J.A.C. 13:51-3.2. At the hearing, it was determined that Draeger had purchased the patent and manufacturing rights to the "breathalyzer" from Smith & Wesson Corporation, which had acquired the rights from Stephenson Corporation. Defendant initially stipulated that the Draeger machine was identical to the machine manufactured by Smith & Wesson. Because N.J.A.C. 13:51-3.5 and N.J.A.C. 13:15-3.6 approve the "Breathalyzer, Model 900" as an instrument and method for chemical breath testing, the trial court concluded, based in part on defendant's stipulation, that independent testing and certification of the Draeger Model 900, were not required "merely because of a change of manufacturer." The trial court therefore denied the motion to suppress.

Defendant moved for reconsideration, arguing that he had "new evidence" that there were differences between the Draeger and Smith & Wesson machines. He also moved for discovery, demanding that the State produce all records of its testing and certification of the Smith & Wesson and Stephenson Model 900's, and of all records of repairs, malfunctions, and "retirements" of Model 900 machines. The trial court denied this request, but ordered the State to produce any schematic drawings of the Draeger machine and further ordered that the breathalyzer utilized to test defendant be made available for inspection by defendant's expert.

On the trial date, defendant repeated his principal contention that the State's failure to retest and recertify the Draeger Model 900 compelled suppression of the breath test results. However, defendant was unable to produce any evidence, expert or otherwise, demonstrating a difference between the Draeger and Smith & Wesson machines. Concluding that defendant failed to rebut the presumptive validity afforded the Attorney General's actions, the trial court again denied the motion to suppress.

Defendant thereupon entered a conditional plea of guilty to a violation of N.J.S.A. 39:4-50(a). Prior to sentencing, he testified that in 1982 he had entered a guilty plea without counsel to a driving while under the influence charge. He stated that the municipal court did not then advise him of his right to retain counsel and thus he was unaware of that right when he entered the plea. Concluding that defendant had met his burden of proving the absence of counsel at the time of his first conviction, Judge Haines, sitting as a municipal court judge, found that the first conviction could not be considered for sentence enhancement purposes under N.J.S.A. 39:4-50(a)(2). See State v. Laurick, supra, 222 N.J.Super. at 640, 537 A.2d 792.

Defendant again argues before us that while the Smith & Wesson Breathalyzer, Model 900, may be an approved instrument and method of breath testing, the Model 900 manufactured by Draeger has never been independently tested and approved by the State Police and Attorney General, and thus cannot be considered "valid" as a breath testing technique.

N.J.S.A. 39:4-50.3 provides that chemical analysis of a person's breath, "to be considered valid under the provisions of this act," must be performed "according to methods approved by the Attorney General, and by a person certified for this purpose by the Attorney General." Rules promulgated by the Attorney General regulating chemical breath testing are codified at N.J.A.C. 13:51-1.1, et seq. Specifically, N.J.A.C. 13:51-3.5(a), as amended in 1982, states, in relevant part, that:

The Breathalyzer, Model 900, is an instrument approved by the Attorney General ... and this subchapter, for the testing of a person's breath by chemical analysis. [Emphasis supplied].

The Breathalyzer, Model 900, is also an approved method for performing chemical analysis of a person's breath. See N.J.A.C. 13:51-3.6(a).

Approval of instruments utilized for breath testing is governed by N.J.A.C. 13:51-3.2, which designates the Superintendent of State Police as the official to test the instrument and method for "specificity, precision and accuracy." Upon completion of testing, the Superintendent recommends approval to the Attorney General, who, upon review, may certify the instrument or method pursuant to law. N.J.A.C. 13:51-3.2(d).

Defendant notes that Draeger's acquisition of Smith & Wesson's patent right to the Model 900 simply protects Draeger from competitors producing the same machine, but does not prohibit Draeger from altering or modifying the instrument and making the Model 900 less reliable. He therefore argues that separate testing and certification of the instrument produced by each manufacturer is required under N.J.A.C. 13:51-3.2 to assure the requisite "specificity, precision and accuracy." To require less, defendant contends, violates N.J.S.A. 39:4-50.3 and his due process rights under the Fourteenth Amendment.

Defendant's argument ignores the fact that the regulations certify the "Breathalyzer, Model 900" as an approved instrument and method for breath testing without reference to specific manufacturers of the instrument. The apparent legislative intent of the regulations was to approve a generic instrument and method for the testing of a person's breath as developed and perfected by Robert F. Borkenstein, as originally approved by the Attorney General in 1966. See State v. Yerkes, 189 N.J.Super. 147, 150, 458 A.2d 1345 (Law Div.1983). The Breathalyzer, Model 900, was the first Borkenstein machine used in New Jersey and approved by the Attorney General. Id. at 151, 458 A.2d 1345. The clear and unambiguous language of the present regulations, approved in 1982, adopts this instrument and method without reference to a name of the specific manufacturer.

The legislative history of N.J.A.C. 13:51-3.5 and N.J.A.C. 13:51-3.6 supports this conclusion. In September 1966, the Attorney General approved as a method of chemical analysis of breath for determining blood-alcohol content "[t]he breathalyzer as developed and perfected by Robert F. Borkenstein." See State v. Yerkes, supra, 189 N.J.Super. at 150, 458 A.2d 1345. In 1969, N.J.A.C. 13:51-21, now repealed, listed "approved methods and instruments" as including "[t]he breathalyzer as invented by Professor Robert Borkenstein...." As published in February 1980, N.J.A.C. 13:51-3.5 included the following "approved methods and instruments":

(a) The Breathalyzer as invented by Professor Robert Borkenstein[.]

* * *

(b) The Dominator Albreath manufactured by the Stephenson Company[.]

(c) The Alco-Tector as manufactured by Decatur Electronics[.]

(d) The Breathalyzer, Model 100, manufactured by Smith & Wesson/General Ordinance Equipment Company.

In 1982, N.J.A.C. 13:51-3.5 was amended as follows:

Approved instruments for performing chemical analysis of a person's breath

(a) The Breathalyzer, Model 900[.]

(b) The Breathalyzer, Model 900A[.]

(c) The Dominator Albreath[.]

(d) The Alco-Tector[.]

(e) The Breathalyzer, Model 1000[.]

Summarizing reasons for the proposed 1982 amendment, the Attorney General stated:

The proposed rule deletes the existing text of N.J.A.C. 13:51 and replaces it with new language to accomplish necessary revision, up-dating and clarification of the terms and conditions applicable to ... forms and methods by which the Attorney General certifies chemical breath test equipment and the methods for the use of these devices.

The new language will also assist the various courts in this State by providing definitions and clearer application of these rules and regulations thus avoiding...