Today the New Jersey Appellate Division opined that the Original Manufactured Ertco-Hart Temp prob was not necessary and if some other brand was used (namely because it's cheaper) that is okay.
Copy of the decision is provided for your review. In other words, the New Jersey Appellate Court opined that BAC results derived from an Alcotest device are not per se inadmissible solely because the device was calibrated using a temperature probe other than the Ertco-Hart temperature probe validated in State v. Chun
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4384-09T3
A-4775-09T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
NICOLE HOLLAND,
Defendant-Respondent.
___________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH PIZZO, JR.,
Defendant-Appellant.
Argued February 8, 2011 - Decided
Before Judges Parrillo, Yannotti and Skillman.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal Nos.
09-069 and 09-078.
Monica do Outeiro, Assistant Prosecutor, argued the
cause for State of New Jersey, appellant in Docket No.
A-4384-09T3 and respondent in Docket No. A-4775-09T3
(Peter E. Warshaw, Jr., Monmouth County Prosecutor,
attorney; Ms. Outeiro, of counsel and on the brief).
APPROVED FOR PUBLICATION
April 5, 2011
APPELLATE DIVISION
April 5, 2011
2 A-4384-09T3
John Menzel argued the cause for appellant Kenneth
Pizzo, Jr.
Alexander M. Iler argued the cause for respondent
Nicole Holland (Law Offices of Alexander M. Iler,
attorneys; Robert W. Ruggieri, of counsel; Mr. Iler,
on the brief).
The opinion of the court was delivered by
PARRILLO, P.J.A.D.
We granted leave to appeal in these two matters,
consolidated for the purposes of this opinion, to resolve a
common issue: whether blood alcohol concentration (BAC) results
derived from an Alcotest 7110 MKIII-C (Alcotest) breath-testing
device are admissible against defendants in driving while
intoxicated (DWI) prosecutions when the device has been
calibrated with a Control Company, Inc. (Control Company)
temperature probe, or thermometer, instead of the Ertco-Hart
temperature probe referenced in State v. Chun, 194 N.J. 54, 89,
135, 152-53, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L.
Ed. 2d 41 (2008).
Defendants Nicole Holland and Kenneth Pizzo were convicted
in the municipal courts of Neptune City and Sea Girt,
respectively, of per se violations of N.J.S.A. 39:4-50, among
other motor vehicle offenses. Holland had moved to exclude the
results of the Alcotest used to measure her BAC at 0.16% because
the Alcotest was calibrated with a temperature probe
3 A-4384-09T3
manufactured by a company other than Ertco-Hart. In the other
matter, in anticipation of a similar motion, Pizzo requested a
N.J.R.E. 104 hearing on the State's foundational proofs —
specifically the various reports relating to calibration of the
Alcotest machine, and further requested that the State provide
missing documentation on the Alcotest device, which in his case
produced a BAC reading of .15%. In both instances, the
municipal court judge denied the motions, concluding in
Holland's case that the Chun decision mandates the use of a NIST
traceable thermometer and not necessarily one manufactured by
Ertco-Hart, and in Pizzo's case that the State had complied with
Chun's requirements. Holland subsequently entered a conditional
guilty plea to DWI and Pizzo was convicted after a bench trial
of a per se violation of N.J.S.A. 39:4-50.
Both defendants appealed their municipal court convictions
to the Law Division, where de novo reviews were conducted by
different judges. In the Holland matter, the judge suppressed
the Alcotest results for failure to provide a Draeger Safety,
Ertco-Hart Digital Temperature Measuring System Report of
Calibration, NIST traceability as a requisite foundational
document, and remanded the matter to municipal court for
proceedings limited to observational proof of Holland's alleged
intoxication. The Law Division judge further ruled that, before
4 A-4384-09T3
the State could use a temperature probe manufactured by a
company other than Ertco-Hart, it was required to seek
permission from the Supreme Court and submit proof of
comparability in a Frye1 hearing.
The judge in the Pizzo matter reached the opposite
conclusion, rejecting the defendant's argument that the Alcotest
results were inadmissible solely because the State used a
Control Company temperature probe, but remanded to the municipal
court to conduct a N.J.R.E. 104 hearing on the State's failure
to produce additional Alcotest device data previously requested
by Pizzo and to determine whether the Control Company
temperature probe was comparable to the Ertco-Hart probe.
We granted leave to appeal in both cases in the interest of
justice. R. 2:2-4. However, before addressing the common issue
raised in the State's and defendant Pizzo's appeals, we first
review basic concepts regarding admissibility of Alcotest
results as set forth in Chun, and the role of the NIST traceable
temperature measuring system in calibrating a particular
Alcotest device.
It has long been recognized that breath-testing devices,
known as breathalyzers, are scientifically reliable and accurate
instruments used for determining BAC. Chun, supra, 194 N.J. at
1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
5 A-4384-09T3
64. In fact, drivers whose breathalyzer test results exceed the
statutory maximum BAC limit are guilty per se of DWI. Ibid. In
order to admit the breathalyzer test results into evidence, the
Court has required foundational proofs relating to the operation
of the breathalyzer machine. Ibid. Over the years, the
breathalyzer has become technologically outdated, resulting in
the introduction of the Alcotest. Ibid. The Alcotest generates
an Alcohol Influence Report (AIR), which provides an
individual's BAC. Id. at 79, 82-83. The Alcotest is
manufactured and marketed by Draeger Safety Diagnostics, Inc.
(Draeger). Id. at 66.
Chun held that the novel Alcotest, utilizing New Jersey
Firmware version 3.11, is "generally scientifically reliable,"
subject to certain conditions established by the Court. Id. at
65. Thus, "as a precondition for admissibility of the results
of a breathalyzer, the State [is] 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." Id.
at 134. The State must "clearly establish" these preconditions
to admissibility. Id. at 92.
Having deemed the instrument reliable in general, the Court
then explained how to determine whether the device was in
6 A-4384-09T3
"proper working order" in a particular case. Id. at 154. To
that end, the State must enter into evidence three core
foundational documents, none of which pertain to the temperature
measuring device at issue here:
(1) the most recent Calibration Report prior
to a defendant's test, including control
tests, linearity tests, and the credentials
of the coordinator who performed the
calibration; (2) the most recent New
Standard Solution Report prior to a
defendant's test; and (3) the Certificate of
Analysis of the 0.10 Simulator Solution used
in a defendant's control tests.
[Ibid.]
Calibration of the Alcotest during installation, and periodic
re-calibration to ensure good working order, is a core element
of proof in the accuracy determination, id. at 134, 153, and
thus the Chun Court has required introduction of the most recent
calibration report prior to admitting Alcotest results into
evidence. Id. at 142, 145.
Chun described the calibration process as follows:
Calibration of the machines involves
attaching the machine to an external
simulator which uses a variety of solutions
of known alcohol concentrations to create
vapors that approximate human breath. By
exposing the . . . mechanisms to these
differing concentrations, and by analyzing
the device's ability to identify accurately
each of those samples within the acceptable
range of tolerance, referred to as a
linearity test, the coordinator is able to
7 A-4384-09T3
ensure that the machine is correctly
calibrated.
[Id. at 84.]
In its description of the calibration process, the Court did not
specifically consider the Ertco-Hart temperature probe.
However, the Special Master explained the calibration process in
greater detail, Findings and Conclusions of Remand Court, Feb.
13, 2007, reprinted in 2007 N.J. Lexis 39 (Special Master's
Report), noting that "[t]o measure the temperature of the
simulator solution, the [State Police] coordinator uses an
Ertco-Hart digital NIST thermometer." Id. at 139.
Specifically, the calibration process involves the running
of several sets of tests, which results in the printing of
related reports: the Part I Control Tests, the Part II Linearity
Tests, the Solution Change Report and the Calibration Record.
Prior to commencing these tests, the testing coordinator will
prepare several alcohol solutions. The first is a 0.10% alcohol
solution for the control tests. Id. at 45. The others are
0.04%, 0.08% and 0.16% alcohol solutions for the linearity
tests. Ibid. Each of these solutions must be heated to thirtyfour
degrees Celsius (plus or minus 0.2 degrees), the average
range of human breath, which will create vapors that approximate
human breath and provide for successful calibration. Id. at 45,
286. To do so, the coordinator will allow each solution to heat
8 A-4384-09T3
for approximately one hour and then ensure that they have
reached the appropriate temperature using an external NIST
traceable temperature probe.2 Id. at 45, 138-39. Thus, the
temperature probe is used to ensure the appropriate temperature
of the solutions prior to the commencement of calibration of the
Alcotest machine. Id. at 45-46.
Once the coordinator has determined that the alcohol
solutions have reached their appropriate temperatures, the
coordinator will begin calibration. Again, neither the Ertco-
Hart nor Control Company probe is a part of the Alcotest device
— it is used only to determine the temperature of the solutions
before they are put into the Alcotest machine.3 First, the
2 NIST refers to the National Institute of Standards and
Technology, which is responsible for establishing, maintaining
and publishing basic standards of measurement consistent with
their international counterparts. Special Master's Report,
supra, at 45.
3 Significant for present purposes, there are other temperature
probes, distinct from the temperature measuring device — whether
made by Ertco-Hart or Control Company — used by the coordinator
in initial calibration, see Special Master's Report, supra, at
138-39, that are integral to the calibration process itself and
are not here in issue. One such probe is the "black key
temperature probe" used by the testing coordinator to gain
access to the calibration process. Id. at 138; see also Chun,
supra, 194 N.J. at 83. Additionally, the Alcotest device itself
contains a temperature probe within the machine. Special
Master's Report, supra, at 35; Chun, supra, 194 N.J. at 105 n.24
("There are several temperature devices related to the Alcotest.
One, which is an integral part of each device, and the report of
which is included on the AIR, heats the simulator solution in
(continued)
9 A-4384-09T3
coordinator will gain access to the Alcotest with the
coordinator's black key temperature probe and conduct a control
test with the 0.10% simulator solution. Id. at 45, 138. If the
results of this test are not within the requisite range, the
Alcotest will prompt the coordinator to repeat the control test
with a new 0.10% simulator solution. If, on the other hand, the
results are acceptable, the Part I Control Test certificate is
printed. This document records the temperature of the 0.10%
simulator solution as measured during the test — separate from
the temperature recorded by the coordinator with the Control
Company, or Ertco-Hart, probe during pre-calibration
preparations. Chun, supra, 194 N.J. at 105 n.24.
The coordinator will then conduct two linearity tests on
each of the three different simulator solutions of 0.04%, 0.08%
and 0.16% by again using the coordinator's black key temperature
probe. Special Master's Report, supra, at 45-46. If the
results of the linearity tests are not acceptable, the Alcotest
is placed out of service. If, on the other hand, the results
are acceptable, the Part II Linearity Tests certificate is
printed. Also contained on this certificate are the
(continued)
the control test both in the device and, by extension, in the
calibration process. Another heats the breath tube, but not the
subject's actual breath sample, to prevent condensation.").
10 A-4384-09T3
temperatures of the three solutions as measured during the test
— again separate from that measured by either the Ertco-Hart or
Control Company probe during pre-calibration preparations.
Lastly, the coordinator uses a solution to generate a Solution
Change Report, which will complete the calibration test sequence
and print a calibration record. Id. at 46.
In order to enable a defendant to challenge the
functionality or operability of the device, the State must also
disclose in discovery, in addition to the three "core" documents
admitted into evidence, certain other "foundational" documents,
which "might reveal some possible flaw in the operation of the
particular device." Chun, supra, 194 N.J. at 148. The twelve
non-core foundational documents, some of which pertain to the
accuracy of the temperature probes, consist of:
(1) Calibrating Unit, New Standard Solution
Report, most recent change, and the
operator'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
11 A-4384-09T3
Calibration-Control); (8) Certificate of
Analysis 0.04, 0.08, and 0.16 Percent
Solution (used in Calibration-Linearity);
(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, 0.08, and 0.16 percent solutions
when conducting the Calibration-Linearity
tests; (11) Draeger Safety Certificate of
Accuracy Alcotest 7110 Temperature Probe
used in the Calibration tests; and (12)
Draeger Safety, Ertco-Hart Digital
Temperature Measuring System Report of
Calibration, NIST traceability.
[Id. at 134-35, 153.]
These documents, including, most notably for present
purposes, the Draeger Safety, Ertco-Hart Digital Temperature
Measuring System Report of Calibration, NIST traceability4 "are
not fundamentally a part of demonstrating that the particular
device was in good working order." Id. at 144-45.
Characterized as "tests of tests and, therefore . . . too
attenuated[,]" they are not essential to establish
admissibility. Id. at 144. Rather, they are produced in
discovery to allow a defendant to challenge the "accuracy of the
device used and the chemical composition of solutions used to
4 Specifically, the Chun Court requires that a State Police
coordinator re-calibrate the Alcotest device once every six
months as evidenced by a "Draeger Safety, Ertco-Hart Calibration
Report," certifying the reliability of the temperature probe,
which must be produced during discovery as one of numerous
foundational documents prior to admission of the Alcotest
results. Id. at 153.
12 A-4384-09T3
routinely test and calibrate the machine." Id. at 142, 144
n.47. To that end:
[I]n the event that any defendant perceives
of an irregularity in any of these documents
that might affect the proper operation of
the device in question, timely issuance of a
subpoena will suffice for purposes of
protecting that defendant's rights. Were
the use of the subpoena power to become
routine, we would commend to the parties,
with the assistance of our municipal courts,
the use of pretrial de bene esse depositions
or video conferencing technology to reduce
the burden on the State or any independent
testing laboratories.
[Id. at 144 n.47 (emphasis added).]
However, "[a]bsent a pre-trial challenge to the admissibility of
the AIR based on one of the other foundational documents
produced in discovery, [the Court] perceive[d] of no reason to
require that they be made a part of the record routinely." Id.
at 145.
The present issue arises because testing coordinators in
these two matters used a Control Company probe to confirm the
appropriate temperature of the alcohol solutions, rather than
the Ertco-Hart device referred to in Chun.5 Thus, in both cases,
5 In Holland's case, the Alcotest 7110 MKIII-C was successfully
calibrated on May 26, 2009 by a certified State Police Breath
Test Coordinator, and produced a BAC reading of 0.16% on June
24, 2009. As for Pizzo, the Alcotest 7110 MKIII-C was
successfully calibrated on March 6, 2009 by a certified State
(continued)
13 A-4384-09T3
instead of producing in discovery a "Draeger Safety Ertco-Hart
Calibration Report" as set forth in an order appended to the
Chun opinion, the State produced a Control Company "Traceable
Certificate of Calibration for Digital Thermometer," which is
the manufacturer's own certification of the measuring system's
accuracy. Consequently, both defendants argued that the results
rendered by the Alcotest machine in their respective cases
should have been excluded because a condition established in the
Chun order was not satisfied. The Law Division judge in the
Holland matter agreed, concluding that only Draeger's Ertco-Hart
Calibration report — a non-core document — could satisfy the
Chun Court's foundational requirements for admission of Alcotest
results. We disagree. In our view, the AIR is not rendered
inadmissible as an automatic consequence of the State's failure
to produce a non-core foundational document.
Granted, the Chun Court mentioned "Ertco-Hart" several
times in requiring foundational documents identifying the
temperature probe by serial number in the calibration reports,
inclusion of that serial number in the firmware of the
temperature measuring system, and production of the temperature
(continued)
Police Breath Test Coordinator, and produced a BAC reading of
0.15% on May 25, 2009.
14 A-4384-09T3
probe's NIST traceable certification.6 We do not read these
references too strictly or literally as a mandate that only the
6 Specifically, there are four such references:
[T]he parties agree . . . that future
calibration, certification and linearity
reports should include the serial number of
the Ertco-Hart digital temperature measuring
system utilized in performing those testing
and maintenance operations (Special Master's
Finding 2(i)).
. . . .
. . . [T]he Special Master recommended that
certain documents, which he referred to as
the "foundational documents," be produced
during discovery and that they be admitted
into evidence as part of the State's casein-
chief. The documents in question can be
described as follows: . . . (12) Draeger
Safety, Ertco-Hart Digital Temperature
Measuring System Report of Calibration, NIST
traceability.
. . . .
G. The firmware shall be programmed to
include the serial number of the Ertco-Hart
digital temperature measuring system
utilized as a part of each calibration,
certification and linearity report;
. . . .
3. ORDERED that the State shall forthwith .
. . [p]roduce in discovery the twelve
foundation documents identified by the
Special Master as follows: . . . (12)
Draeger Safety Ertco-Hart Calibration
Report.
(continued)
15 A-4384-09T3
Ertco-Hart device be used, but rather as a facile means of
identifying the temperature probe used to calibrate the Alcotest
machine in Chun, and as distinguished from the other
thermometers employed in the calibration process.
Nowhere in Chun or its accompanying order did the Court
expressly state that only the Ertco-Hart device, to the
exclusion of all others, was acceptable. On the contrary, the
Chun Court adopted as modified the Special Master's Report,
which described the calibration process as involving a "NISTtraceable
temperature probe monitor[ing] the temperature of the
simulator solution." Special Master's Report, supra, at 45
(emphasis added). Indeed, the Special Master advised the Court
that "[t]he revised firmware shall require that the Ertco-Hart
Digital Temperature Measuring System or other similar devices
traceable to the National Institute of Standards and Technology
is in proper operating condition and that the serial number of
such devices be listed on all reports where . . . relevant."
Id. at 272. (emphasis added).
There is no discussion in Chun of the uniqueness or
significance of Ertco-Hart as the manufacturer of the
(continued)
[Chun, supra, 194 N.J. at 89, 134-35, 152-53
(emphasis added).]
16 A-4384-09T3
temperature probe, and its only discernable characteristic
appears to be certification of NIST traceability, which the
Control Company probe also possesses. In other words, the
emphasis is on NIST traceability as opposed to brand name. See
ibid. Thus, we conclude that the Ertco-Hart references in Chun
are merely identifiers explaining the necessary firmware
modifications and foundational documents required with respect
to one temperature probe (the one used to determine the alcohol
solution temperatures during the calibration process), separate
and apart from the Alcotest machine's internal temperature probe
and the coordinator's black key probe.
We have in the past embraced a practical application of the
requirements for admission of breath-test results so as not to
"create an unduly and . . . unintended restriction on the
State's ability to prosecute DWI cases." State v. Ugrovics, 410
N.J. Super. 482, 488-89 (App. Div. 2009), certif. denied, 202
N.J. 346 (2010). There, the defendant claimed that the Court's
use of the term "operator" in Chun prohibited any individual
other than a certified Alcotest operator from observing a driver
during a required "observation" period. Id. at 488-90. We
disagreed, rejecting "a literal, unexamined application of such
language [that] would create an unduly and . . . unintended
17 A-4384-09T3
restriction on the State's ability to prosecute DWI cases based
on the results of an Alcotest." Id. at 489.
Courts have also rejected limiting BAC results to those
obtained using specifically manufactured machines. See State v.
Samarel, 231 N.J. Super. 134, 140 (App. Div. 1989). In Romano
v. Kimmelman, 96 N.J. 66 (1984), the Court upheld the
reliability of the "Smith and Wesson Breathalyzer Model 900."
Id. at 72, 82. Later, after the State began to replace the
Smith and Wesson with a Draeger Breathalyzer Model 900, a driver
charged with DWI challenged the driver's BAC results obtained
using the Draeger breathalyzer machine because it was not
manufactured by Smith and Wesson as referred to by the Romano
Court. Samarel, supra, 231 N.J. Super. at 140. There, we
rejected the "defendant's argument that the Supreme Court has
approved the use of Smith and Wesson's breathalyzer model 900 to
the exclusion of other manufacturers' breathalyzer models 900."
Ibid. Similarly, in State v. Laurick, 231 N.J. Super. 464 (App.
Div. 1989) rev'd on other grounds, 120 N.J. 1, cert. denied, 498
U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), we held that
the Romano Court did not intend to limit its reliability
findings to specific breathalyzer manufactures because such a
reading of Romano would create "an absurd result." Id. at 471
n.1, 472-73.
18 A-4384-09T3
Because the use of another manufacturer's temperature probe
to calibrate the Alcotest machine does not alone compel
exclusion of test results, we reverse the contrary finding of
the Law Division judge in the Holland matter. Of course, the
fact that the Alcotest results are not rendered automatically
inadmissible thereby does not end the inquiry. Although the
Alcotest machine has been found to be generally reliable, the
State still bears the burden of demonstrating the "proper
working order" of the device. As noted, this is accomplished by
introducing into evidence the three core foundational documents,
Chun, supra, 194 N.J. at 154, which the State had done in both
the Holland and Pizzo matters. In other words, the State may
meet its initial burden to support the admissibility of Alcotest
results without reference to the calibration of the temperature
probe. Thus, once the State has introduced the core documents
into evidence and produced the other foundational documents in
discovery, the burden of production shifts to the defendant to
show why the machine was not in working order, namely, apropos
to the present matters, whether and how the differences in the
temperature probes had any impact at all. Absent further
evidence in this regard, we discern no impediment to the
admission of the Alcotest results as the State would have
19 A-4384-09T3
satisfied its ultimate burden of persuasion as to the device's
reliability and accuracy.
Based on the foundational document itself, Holland raised
sufficient questions as to the reliability of the Control
Company's probe to warrant further inquiry. Specifically, the
device was calibrated on May 26, 2009, by a State Police
coordinator using a Control Company temperature probe with a
serial number DDXAP2-149. During discovery, the State provided
the Control Company Traceable Certificate of Calibration for
Digital Thermometer as a foundational document, demonstrating
the reliability of the temperature probe. However, contained on
this certification are numerous serial numbers and "due dates,"
including a March 6, 2009 due date for temperature probe serial
number 149. Although unexplained, the due date may possibly be
the date the probe is due for re-certification.
Holland raised this issue in the municipal court,
contending that the certification and calibration reports
revealed that during the May 26, 2009 calibration, the testing
coordinator used an expired temperature probe, which came due
for re-certification on March 6, 2009. However, the parties
could not explain with certainty the use of the phrase "due
date," nor the existence of a November 18, 2008 "Cal Date" and
November 18, 2010 "Cal Due." Relying on those entries, however,
20 A-4384-09T3
Holland interpreted the Control Company calibration certificate
to require calibration of its temperature probe every two years.
Nevertheless, the municipal court could not determine whether
the certificate's "Cal Date: 11/18/08" and "Cal Due: 11/18/10"
was applicable to the temperature probe, or the due date of
March 6, 2009 for serial number 149 rendered it unreliable.7
Later, on appeal to the Law Division, Holland raised the issue
again, asserting that there were "some questions about what
certain terms meant on [the] calibration certificate . . . [a]nd
certain dates."
Satisfied that the Alcotest results were automatically
excluded by reason alone of the difference in manufacturer, the
Law Division judge left the questions raised by defendant
unanswered. Yet, as part of its ultimate burden to clearly
establish the good working order of the device, the onus of
7 Pursuant to Chun's direction that "in the event that any
defendant perceives of an irregularity in any of [the
foundational] documents that might affect the proper operation
of the device in question, timely issuance of a subpoena will
suffice for purposes of protecting that defendant's rights[,]"
Chun, supra, 194 N.J. at 144, the municipal court judge granted
an adjournment so that Holland could depose Wallace Berry, the
technical manager at Control Company whose signature appears on
the certificate. Prior to the next hearing, Holland subpoenaed
Berry for a video deposition, but Control Company, a Texas
corporation, declined to produce Berry for the deposition. The
municipal court judge ultimately determined that he was unable
to assert jurisdiction over Berry to compel Berry's appearance
as an out-of-state witness.
21 A-4384-09T3
explaining any facial irregularity in the foundational documents
that might affect the proper operation of the device in question
lay with the State. Chun, supra, 194 N.J. at 92, 144 n.47.
Therefore, we are constrained to remand to the Law Division to
determine, among other issues validly raised by defendant
Holland,8 whether the Control Company temperature probe was
properly certified on May 26, 2009, pursuant to the Traceable
Certificate of Calibration for Digital Thermometer.
8 The trial judge cited other differences between the Ertco-Hart
Digital Temperature Measuring System Report of Calibration, NIST
traceability and the Control Company Traceable Certificate of
Calibration for Digital Thermometer:
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, while the
Draeger Safety temperature probe requires
testing every twelve months. Second, the
certificate from the Control Company states
the following: ". . . 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 capability of the Alcotest
machine.
22 A-4384-09T3
We reach the same result, as did the other Law Division
judge, in the Pizzo matter. There, the court found that
although Chun did not preclude the use of any similar digital
thermometer traceable to NIST, "the record below is insufficient
to support a finding that the digital thermometer used in this
matter was in fact comparable to the Ertco-Hart thermometer."
Consequently, the judge remanded the case to the municipal court
for a N.J.R.E. 104 hearing on the reliability of the Control
Company temperature probe and, separately, on a discovery issue
involving missing Alcotest machine data not produced by the
State and previously raised by the defendant below. The State
did not cross-appeal from that remand order. In fact, the State
has represented that it will be able to demonstrate that its
change of manufacturer "holds no significance" and that "the
Control Company, Inc., temperature probe is comparable to its
Ertco-Hart-manufactured counterpart and meets the Special
Master's requirement of traceability to internationallyrecognized
NIST standards."
We, therefore, agree for reasons previously stated with
regard to the Holland matter that a remand is also indicated as
to defendant Pizzo. We direct, however, that these two matters
be consolidated and remanded to the Law Division for a hearing
before a single judge to be designated by the Assignment Judge
23 A-4384-09T3
of Monmouth County to establish the reliability of the Alcotest
results and the validity of the Traceable Certificate of
Calibration for Digital Thermometer at the time of the
Alcotest's calibration in each case. We further direct that the
hearing is to be conducted within sixty days, with notice to the
Attorney General, and findings of fact and conclusions of law
rendered forthwith thereafter. We retain jurisdiction.
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