SUPERIOR COURT OF NEW JERSEY COUNTY OF MONMOUTH LAW DIVISION-CRIMINAL PART MUNICIPAL APPEAL NO. 09-069
STATEMENT OF REASONS PURSUANT TO R.
2:5-1
STATE OF NEW.JERSEY,v.
NICOLE HOLLAND,
Defendant,
Decided on Record: April 16, 2010 Statement of Reasons: May 25, 2010
Luis A. Valentin, Monmouth County Prosecutor, for State-(Monica Do Outiero, Assistant prosecutor).
Alexander M. Iler, for defendant (Law Offices of Alexander M. Iler, attorney).
RICHARD W. ENGLISH, J.S.C.
This
matter comes
to
this court by' way
of
Municipal
Appeal
number
09-069
filed
by
the
defendant,
Nicole
Holland.
The issue .raised in the defendant's Municipal Appeal requires this court to determine whether the State's production in discovery of a certificate of a digital temperature probe manufactured by Control Company, contrary
1
to the requirement in State v. Chun,l which explicitly provides that the State shall produce a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, renders the results of the Alcotest unreliable and, thus, inadmissible against the Defendant to prove that she was Driving While Intoxicated.
I. Procedural History
On June 24, 2009, the Defendant was arrested in Neptune City, Monmouth County, and charged with Driving While Intoxicated (DWl), contrary to N.J.S.A. 39:4-50; Reckless Driving, contrary to N. J. S .A. 39:4-96; and Possession of Open, Unsealed Alcoholic Beverage Container, contrary to N.J.S.A. 39:4-51b.
On September 30, 2009, the Defendant appeared before the Honorable Mark T. Apostolou, J.M.C., in Neptune City Municipal Court for a motion to suppress the results of the Alcotest, which was administered to the Defendant following the motor vehicle stop. The defendant's position in arguing the suppression motion was to challenge the admissibility of the Alcotest results based on the State's use of a temperature probed manufactured by Control
194 N.J. 54, 135 (2008).
2
1
Company, Inc., 2 instead of a temperature probe manufactured by the Draeger Safety company. The Defendant claimed that the Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, is required to be provided under State v. Chun, 3 as opposed to the Control Company Certificate4 that was provided.
After preliminary arguments from counsel, the hearing was adjourned so defense counsel had an opportunity to subpoena Wallace Berry, Technical Manager· of Control Company, Inc., located in Texas. Mr. Berry was apparently in charge of calibrating the Control Company, Inc. temperature probe that was used in the calibration of the Alcotest device.
On November 4, 2009, Judge Apostolou again heard arguments from counsel regarding the State v. Chun foundational documents requirement and the temperature probe, without the. presence of Mr. Berry. Mr. Berry, a resident of Texas, refused to comply with the defense counsel's subpoena. The main issue on appeal and presently before this court was argued before Judge Apostolou in pertinent part as follows:
2 Exhibit J-3. 3 194 N.J. at 135. 4 Exhibit J-3.
3
Mr. 1ler: Chun requires the
State to produce 12 foundational documents in discovery. Whether they have to become part of the case in chief to prove the admissibility as a result.
The Court: See, I was anticipating that your argument is also that the State has to produce them for a foundation, which I don't think is accurate...
[See Transcript of Hearing, November 4, 2009, 31-18 to 31-24] . After hearing the arguments, Judge Apostolou denied the Defendant's motion and stated the following:
"I think that in accordance with Judge King, clearly, as long as [the device is] N1ST traceable and subjected under Footnote 47 to the analysis that we did attempt to provide to Mr. 1ler, that he couldn't take advantage of, but we did attempt to provide it, that satisfies all of the due process needs with
4
regards to [Chun], and I therefore rule
that I will not throw out these
readings. "
[See Transcript of Hearing, November 4,
2009, 42-23 to 43-4] .
Immediately thereafter, the Defendant entered a conditional guilty plea to the DWI charge. At this time, counsel indicated to Judge Apostolou that the Defendant' s Alcotest results showed a blood alcohol concentration (BAC) of 0.15 to 0.16. The municipal prosecutor moved to dismiss the motor vehicle summons 69150, Reckless Driving, and 69151, Open Container. Judge Apostolou then sentenced Defendant on her first DWI to: a $308 fine i $33 court costs; $50 VCCB; $75 SNSP; a $200 surcharge; 210 days
(seven months) driver's .license suspension; and forty-eight
(48) hours at the Intoxicated Driver Resource Center. The Defendant's sentence was stayed pending the filing of this appeal.
On November 13, 2009, the Defendant filed a Notice of Appeal in New Jersey Superior Court, County of Monmouth.
On April 16, 2010, this court heard the defendant's Municipal Appeal. This court reviewed the following: the brief submitted by the defendant on March 11, 2010; the
5
brief submitted by the State on March 18, 2010 i and the
supplemental brief submitted by the defendant on April 7, 2010. This court also reviewed the municipal court transcripts dated September 30, 2009, and November 4, 2009. This court incorporates into this statement by way of reference its findings on the record on April 16, 2010.
This statement of reasons is submitted for amplification of this court's opinion on April 16, 2010.
II. The Defendant Submits that the Failure to Calibrate the Alcotest Machine using the Digital Measuring Device Approved in State v. Chun Requires Exclusion of the
Alcotest Results.
The
Defendant
argues
that
the
municipal
court
judge
erred
in
finding
that
the
Traceable
Certificate
of
Calibration
for
the
Digital
Thermometer
satisfied
the
requirements
under
State
v.
Chun
because
the
digital
thermometer was not manufactured by the company that was approved in Chun.
In the present case, "the Draeger Safety Ertco-Hart Calibration Report was not supplied.. indicating that the Ertco-Hart Digital Temperature Measuring System was not used during the· calibration of the Alcotest used for the
6
defendant's
tests."5
"Instead, a report
for
a different
device,
a
digital
thermometer
manufactured
by
Control
Company,
was
provided.,,6
The Defendant submits that \\ [o]ur Supreme Court approved of the methods employed by [Drager Safety] after hearing testimony from representatives of that company during the Special Master hearings in Chun." 7 "No such testimony was ever elicited concerning Control company."s
The defendant also points out that there are differences in calibration between the Control Company probe and the Ertco-Hart probe. 9 The Ertco-Hart temperature probe is tested every twelve (12) months, compared to the Control Company temperature probe which is tested every two
(2) years. 10 Defense counsel argued that, "[e] ven if the two devices were identical with regard to their ability to accurately measure simulator solution temperatures during Alcotest calibration, the Control Company device has not been subjected to the requisite approval by our Appellate
5 Defendant's Br. at lB. G Defendant's Br. at lB. 7 Defendant's Br. at 3. B Defendant's Br. at 3. 9 Defendant's Br. at 3. 10 Defendant's Br. at 3.
7
Division or Supreme Court for judicial notice purposes
following a Frye hearing."11
The Defendant further argues that "[t]he [t] rial [j]udge erroneously relied on the supposition that the Special Master's Report in [Chun] did not specify the use of Ertco-Hart temperature probe.,,]'2 "[T]he Special Master's Report does identify the Ertco-Hart probe on pages 119-120, while only referring to it generically on Page 40. ,,],3 However, "[t] he [Chun] opinion chose to specifically name the twelfth (12th) foundational document as an Ertco-Hart calibration certificate, not simply a generic NIST traceable temperature probe calibration certificate. flu
III. The State Submits that the Use of a Digital Measuring Device Manufactured by Control Company, Inc., does not in and of itsel,f Render the Calibration Procedures Flawed
Contrary to the defendant's position, the· State maintains that the Supreme Court's holding in Chun does not require the use "of only an Ertco-Hart probe" nor does it
11 Defendant's Br. at 4 (referring to Frye v. United States, 293 F.3d
1013 (D.C. Cir. 1923).
12 Defendant's Br. at 12.
13 Defendant's Br. at 12 (quoting the Special Master's Findings, 40,
119-120 (submitted to Supreme Court Feb. 13,
2007).http://www.judiciary.state.nj.us/mcs/mcsmemo/state_v_chun_special
masters report.pdf». 14 Defend~nt's Br. at 12 (referring to Chun, supra, 194 N.J. at 135).
8
bar "the State from substituting an equivalent device. 15
Instead, "the [Supreme] Court uses the term Ertco-Hart merely as an identifier when explaining the firmware revisions and foundational documents that it held were required, after review and adoption of the Special Master's findings. ,,16
The State. submits that the Special Master's report confirms the State's position because it states that the firmware \\ shall require that the Ertco-Hart digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and
Technolgy. ,,17
The State maintains that \\ [t] he mere fact that the State now uses a device equivalent to, but not manufactured by Ertco-Hart, does not in and of itself render the calibration procedures flawed, affect the scientific reliability of the Alcotest device, or render the Control Company, Inc. Calibration Report insufficient to satisfy the foundational document requirement of Chun.,,18
IV. Analysis under State v. Chun
15 State's Br. at 6.
16 State's Br. at 6.
17 State's Br. at 6 (quoting SEecial Master's Findings at 234) .
18 State's Br. at 7-8 (referring to Chun, sUEra, 194 N.J. at 135) .
9
The Supreme Court of New Jersey "has recognized that
certain breath testing devices, commonly known as breathalyzers, are scientifically reliable and accurate instruments for determining blood alcohol' concentration
(BAC) . and that drivers whose breathalyzer test results demonstrate the requisite statutorily-imposed BAC are guilty per Se of driving while intoxicated (OWl) ."19
\\Since devices for determining blood alcohol concentration have become technologically' outdated, the Attorney General's office selected an alternative device ,to use for breath-test purposes: the Alcotest 7110 MKlll-C
(the Alcotest) ."20
\\ [T] he Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but [] certain modifications are required in order to' permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. 1121 "Some of these cOhditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain of the device's mechanical and technical shortcomings. 1122
19 Chun, supra, 194 N. J. at 64.
20 Id.
21 Id. at 65.
22 Id.
10
"The analysis of the general scientific reliability of the Alcotest is grounded, in part, on the expectation that there will be proof that the particular device that has generated an AIR {Alcohol Influence Report)23 being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test."24 "This . requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since [our Supreme Court] decided Romano." 25
Our Supreme Court in Romano held that, "as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and
(3) the test was administered according to official procedure. ,,26
Here, the Defendant submits that there is no dispute with the second and third conditions. The Defendant only disputes the first condition in this case.
23 Chun, supra, 194 N. J. at 82-83 (describing that the "results of the
test sequence are printed out from the device in a sequentially
numbered document referred to as an AIR") .
24 at 134 .
25 Id. (quotting Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
26 Id. (quotting Romano, supra, 96 N.J. at 81 (1984».
11
Under the first condition, the Special Master, retired
Appellate Division Presiding Judge Michael Patrick King, in
his Master's Report recommended that the State produce
during discovery twelve foundational documents relating to
. the working order of the Alcotest device. 27 . Chun set forth
in detail the twelve foundational documents as follows:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operatorI s credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more
relevant
NJ
Calibration
Records
(including
both
Parts
I
and
II
are
offered));
(6)
Calibration
Check
(including
both
control
tests
and
linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis
0.10 Percent Solution (used in Calibration-Control); (S)Certificate of Analysis 0.04, 0 . OS, and 0.16 Percent Solution (used in CalibrationLinearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, O.OS, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in
27 Chun, supra, 194 N.J. at 134.
12
the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature .Measuring System Report of Calibration, NIST traceability. [Chun, supra, 194 N.J. at 135.] These are the same documents in the Special Master's Report. 29 In this case, the defendant is challenging foundational document number twelve,· the Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability". 29 In the Special Master's Report, the report states the following when discussing administrative safeguards for defendants: "[t] he revised firmware shall require that the Ertco-Hart Digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and Technology is in proper operating condition.... ,,30 The New Jersey Supreme Court did "not adopt the Special Master's recommendation" which "require[d] that [the foundational documentsl all be offered into evidence routinely. ,,31 "Many of the documents on the Special Master' s list of foundational proofs are tests of tests
28 Special Master's Findings at 244-45. 29 Chun, supra, 194 N.J. at 135. 30 Special Master's Findings at 234. 31 Chun, supra, 194 N.J. at 144.
13
and, therefore, are too attenuated to require that they be
admitted as part of the evidence."32
The Supreme Court included in that category "all of
the' documents relating to the working order of the simulator, the reports of the solutions used during simulation and calibration, .the certificate of accuracy of the .simulator used to calibrate the device, and the temperature probe documents. ,,33 "AIthough... these documents .should continue to be produced in discovery, they are not fundamentally a part of demonstrating that the particular
device was in good working order. 11 34
Our Supreme Court also did not adopt the Special
Master's language that "the revised firmware shall require
that the Ertco-Hart Digital Temperature Measuring System or
other similar device traceable to the National Institute of
Standards and Technology is in proper operating
condition.... ,,35 The Supreme Court specifically left out of
it's opinion \\or other similar device."
Furthermore, "in the event that any defendant
perceives of an irregularity in any of these [foundational]
documents that might affect the proper operation of the
device in question, timely issuance of a subpoena will
32 Id.
33 at 145.
34
3S Special Master's Findings at 234.
14
suffice for purposes of protecting that defendant's
rights. II The Supreme Court in Chun does not explain the action a trial court should take if a witness is not produced to testify about the operation of the device; nor does it explain how a trial court should proceed even with testimony from a witness.
The State has the burden of proving that the Alcotest device is in good working order, and has been properly inspected. 36 Although these documents are not fundamental,37 they are "part and parcel of ensuring that the machine is in good working order. 11 38 Additionally, the Chun Court ordered that "the State shall forthwith... [p] roduce in discovery the twelve foundation documents identified by the Special Master.... II Again, there is no mention of "or other similar device" in the order.
In this case, the State produced as foundational document number twelve a Traceable Certificate of Calibration for Digital Thermometer showing that .the digital temperature probe was produced by Control Company, Inc. 39 In Chun, foundational document number twelve is described as a Draeger Safety, Ertco-Hart Dl.gital
Temperature Measuring System Report of Calibration, NIST
36 Chun, supra, 194 N. J. at 134.
37 Id. at 144-45.
38 Id. at 142.
39 See Exhibit J-3.
15
traceability.40 The clear difference between the two
documents is the manufacturer of the digital temperature probe.
During the motion to suppress hearing, the municipal court .judge found that because the document in question stated the device was NIST traceable, the results of the test did not render the Alcotest results inadmissible. 41
This Court disagrees. This court does not find any evidence in the record below to show that the digital temperature probe manufactured by Control Company, Inc., is the same or similar to the Ertco-Hart digital temperature probe manufactured by Draeger Safety. Furthermore, this court does not have any evidence showing that NIST traceable means that the digital temperature probe properly tested the Alcotest machine and showed it was in good working order.
In fact, the evidence before this court shows that there are differences between the two temperature probes. First, Control Company, Inc. requires that the temperature probe be tested every two years, 42 while the Draeger Safety temperature probe requires testing every twelve months. Second, the certificate from the Control Company states the
40 Chun, supra, 194 N.J. at 135.
41 Record at 42-23 to 43-4, November 4, 2009.
42 Exhibit J-3; see also Defendant's Br. at 3.
16
following: II ••• there is no exact way to determine how long calibration will be maintained.". However, the Draeger Safety certification for the digital temperature probe does not contain this language. This court finds that the differences stated above in conjunction with the fact that there was no expert testimony regarding its functionality, leaves this court to question whether this device can properly test the operating capabilities of the Alcotest machine.
Without sufficient testimony offered at a ~43 hearing from an expert witness who could explain the similarities and differences between the digital temperature probe manufactured by Control Company and the· probe manufactured by Draeger Safety, and without guidance from the Supreme Court stating that the State may use a Control Company digital temperature probe in addition to the Supreme Court approved Draeger Safety temperature probe, this court finds that the foundational document submitted by the State in this case does not show that the machine was in good working order.
In light of the above legal analysis, this court finds that the dictates of Chun were not satisfied, andj accordingly, the results of Ms. Hollandts Alcotest readings
43 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
17
were suppressed and her municipal court conviction for Driving While Intoxicated was vacated in accordance with this court's amended order dated May 18, 2010. This matter was then remanded to the Neptune City Municipal Court for
trial,
to
consider
the
issue
of
the
Defendant's
psychophysical
testing
and
other
poten
tial
evidence
of
Driving
While
Intoxicated.
This court is aware of the opinion of Mercer County Superior Court Judge Mitchel E. Osterer, dated December 17, 2009, wherein he ruled that the Chun Court implicitly authorized the use of substitute temperature probes. Considering the divergent opinions, it is clear that an appellate court should render an opinion as to whether a substitute temperature probe can be utilized by the New Jersey State Police and local police departments throughout this State for the testing of the Alcotest device.
Accordingly, this court granted the Monmouth County Prosecutor's Office written request for a Stay of Appeal of this court's amended order dated May 18, 2010.
SUPERIOR COURT OF NEW JERSEY
CHAMBERS OF MONMOUTH COUNTY COURT HOUSE RICHARD W. ENGLISH 71 MONUMENT PARK Superior Court Judge P.O. BOX 1266 FREEHOLD, NEW JERSEY 07728-1266 TELEPHONE (732) 677-4139
May 25,2010
Appellate Division Clerk's Office
P.O. Box 006 Trenton, New Jersey 08625
Attn: Anita Toldo
Re: State v. Nicole HoZZand Docket No. AM-000644-09-T3 Municipal Appeal No. 09-069
Ms. Toldo:
I am enclosing a copy of the Court's Statement of Reasons dated May 25, 2010 in regard to the above captioned matter.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
RICHARD W. ENGLISH, J.S.C.
RWEjjao Enclosures
CC: Monica Do Outiero, Assistant Monmouth County Prosecutor Alexander M. Her, Esq.
,: .
