STATE OF NEW JERSEY v. DONNA M. RAINFORTH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2922-06T52922-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONNA M. RAINFORTH,

Defendant-Appellant.

____________________________________________________________

 

Submitted July 17, 2007 - Decided August 6, 2007

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Docket No.

21-06.

John Menzel, attorney for appellant.

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (Michael McLaughlin,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

On October 22, 2005, at approximately 7:12 p.m., defendant Donna Rainforth was driving a vehicle in the Borough of Bernardsville when she was stopped by the police and charged with driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50, making an illegal left turn in violation of N.J.S.A. 39:4-81, failure to use turn signal in violation of N.J.S.A. 39:4-126, and driving the wrong way on a one-way street in violation of N.J.S.A. 39:4-85.1. At the police station, defendant was administered breathalyzer tests, which indicated her blood alcohol content was .18 percent.

During defendant's municipal court trial on April 18, 2006, the parties stipulated to the admission of a certificate of analysis from Guth Laboratories for ampoule control number 00204 (ampoules with the same control number were used in defendant's breathalyzer tests). The parties also agreed the court could consider a three-page letter from Andrew J. Weber, Ph.D., defendant's expert. In his letter, Dr. Weber stated he tested five ampoules from control number 00204, and he concluded "the Guth laboratories reagent ampoules lot 00204 are out of specification and do not meet the criteria for use in breath alcohol determinations." Based on Dr. Weber's findings, defendant argued the breathalyzer test results were unreliable and inadmissible.

After the municipal court denied defendant's motion to exclude the breathalyzer test results, and denied her motion for a jury trial, she entered a conditional guilty plea to the DWI charge. The court sentenced defendant as a second offender and dismissed the remaining charges. Defendant's sentence was stayed pending appeal.

A trial de novo in the Law Division took place on December 18, 2006. Defendant's request for a jury trial was again denied, and defendant was convicted of DWI based on the results of her breathalyzer tests. Once again, defendant's sentence was stayed pending appeal to this court.

In her present appeal, defendant presents the following argument:

THIS COURT SHOULD EXCLUDE BREATHALYZER RESULTS HERE BECAUSE FIVE RANDOM AMPOULES FROM THE LOT USED IN BREATH TESTS ATTRIBUTED TO DEFENDANT WERE NOT WITHIN MANUFACTURER'S SPECIFICATIONS FOR CHEMICAL COMPOSITION AND, THEREFORE, UNACCEPTABLE FOR ANALYTICAL MEASUREMENTS AS REQUIRED IN STATE V. MAURE[.]

After reviewing the record and applicable law in light of the contentions advanced by defendant, we are convinced the findings by the Law Division judge are firmly supported by sufficient credible evidence, and his conclusions predicated on those findings are legally sound. We therefore affirm defendant's conviction, with only the following comments.

The criteria for admitting breathalyzer test results into evidence were established in State v. Johnson, 42 N.J. 146, 171 (1964), and later reaffirmed in Romano v. Kimmelman, 96 N.J. 66, 81-82 (1984). Admissibility requires proof of three conditions: (1) the breathalyzer instrument was in proper working order; (2) the test was administered by a qualified operator; and (3) the test was administered in accordance with accepted standards. Romano, supra, 96 N.J. at 81. The State must prove each of these requirements by clear and convincing evidence, id. at 90.

In this case, the Law Division judge rejected defendant's claim that the breathalyzer test results were unreliable and, therefore, inadmissible:

That certificate of analysis produced by the manufacturer's ampoule tested batch 00204 and determined that the batch fell within the manufacturing specifications. This [c]ourt finds this to be clear and convincing evidence that the breathalyzer test is valid.

The Defendant could not explain how the variation in Dr. Weber's evaluation would effect the blood alcohol content of the Defendant. This [c]ourt is inclined to agree with the Municipal Court Judge, that "under all the circumstances, I cannot say that the finding[,"] the deviation in potassium dichromate, ["]justifies the declaration that the results of the breathalyzer in this case are inadmissible.["]

. . . .

The fact that a possibility of error exists does not preclude a conclusion that a scientific device is reliable. Romano [v.] Kimmelman, 96 [N.J.] 80 [(1984)]. Thus our reports stated that the Breathalyzer machine may be slightly off specification, without any further explanation, does not prove that the device was not reliable at the time of the Defendant's test.

Therefore, I do not find that the breath test results should be disturbed, or that they are unreliable in anyway.

We have previously noted that the solution contained in ampoules bearing the same lot number is "presumed to be homogeneous." State v. Maure, 240 N.J. Super. 269, 282 (App. Div. 1990), aff'd o.b., 123 N.J. 457 (1991). And we agree that Dr. Weber's letter was insufficient to undermine the reliability of the breathalyzer test results. Thus, we affirm substantially for the reasons stated by Judge Gasiorowski.

Affirmed.

 

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A-2922-06T5

August 6, 2007