DWI Breathalyzer Ampoules

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Our office helps people with traffic/ municipal court tickets including drivers charged with driving commercial vehicle while intoxicated, refusal and on driving while suspended with a CDL.
Motor vehicle violations can cost you. You will have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. MVC [Division of Motor Vehicles] or have your license suspended. Don't give up! The Law Office of Kenneth Vercammen can provide experienced attorney representation for motor vehicle violations.
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DWI Cases In the Breathalyzer 900 and 900A, chemical ampoules are used in connection with the testing of breath. The New Jersey Breathalyzer machine uses chemical ampoules to conduct the breathalyzer test on suspect drunk drivers. In these cases, if we are the defense attorney, we will make several motions on behalf of our client. Among the motions are:
1. Test Ampoule. If police used a breath testing instrument in this case, Defendant will move to either dismiss the N.J.S. 39:4 50 complaint or exclude evidence of breath test results because the State destroyed material relevant evidence i.e., test ampoules used in Defendant's breath tests contrary to U.S. Const. Amends. V, VI, IX, and XIV, and N.J. Const. Art.l, paras.1, 10, and 21.
2. Exclude Breath Tests. If police used a breath testing instrument in this case, Defendant will move to exclude evidence( of breath test results because (a) the Attorney General failed to exercise administrative authority and prescribe methods and procedures for periodic inspection of breath testing instruments as required by N.J.S. 39:4 50.3, and (b) without such properly prescribed methods and procedures, the State cannot lay the foun dation needed for admission of breath test results into evidence at trial. See Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
3. For each breath testing instrument ["BTI"] or other analytical device ["AD"] used to test substances seized from Defendant:
a) BTI/AD was not approved, b) analysis method was not approved, c) BTI/AD used is scientifically unreliable, d) analysis method was scientifically unreliable, e) BTI/AD components were not properly inspected, f) BTI ampoules did not contain chemicals of proper quality or quantity to give reliable readings, g) BTI/AD was not properly inspected, h) BTI/AD operator was not properly qualified, i) test conditions, such as temperature and atmospheric pressure, at time of analysis and inspection were not proper, j) BTI/AD inspections were not properly periodic or blanked, k) BTI/AD was not properly inspected for RFI, l) Defendant could not have given them m) BTI/AD test records were not properly used, n) BTI ampoules were not properly gauged, o) BTI/AD operation was not proper, and q) analytical tests were not done within a reasonable time of Defendant's alleged motor vehicle operation.
The law entitles drunk driving defendants to pre trial discovery. R.3:13 3; R.7:4 2(h); State v. Young, 242 N.J. Super. 467, 470 (App. Div. 1990); State v. Ford, 240 N.J. Super. 44, 48 (App. Div. 1990); State v. Utsch, 184 N.J. Super. 575, 579 (App. Div. 1982). Due process requires the State disclose evidence that is material to either guilt or punishment; indeed, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise reasonable doubt about a defendant's guilt. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), United States v. Agurs, 427 U.S. 97, 98 S.Ct. 2392, 49 L.Ed. 2d 342 (1976). A wide variety of materials in the State's possession could constitute exculpatory information to which a defendant is entitled. Ford, supra at 52 A demand for discovery has been served upon the prosecutor who has the responsibility to answer. State v. Tull, 234 N.J. Super. 486, 494 (Law Div. 1989). A defendant's right to discovery is not dependent upon an appraisal of the beneficial value of the material sought to be discovered. State v. Polito, 116 N.J. Super. 552 (App. Div. 1977), Ford, supra at 51). Thus, a prosecutor is expected to act reasonably when responding to a discovery demand. Tull, supra at 496. The prosecutor may not refuse a discovery demand simply because the information or materials sought are not in the municipal offices or within easy reach. Id. at 495. The municipal prosecutor cannot refuse production on the ground that the requested information is not known by the prosecutor personally to be in existence when its existence is either common knowledge of the police department or when the knowledge could be obtained by reasonable inquiry. Id. at 500. The municipal prosecutor must either object to what the prosecutor perceives to be irrelevant discovery requests, or respond within 10 days of the receipt of the defendant's request for discovery. Ford supra at 51; see Tull, supra at 500. The municipal prosecutor may be sanctioned for failing to provide discovery. R.3:13 ; see State v. Audette, 201 N.J. Super. 410 (App. Div. 1985) State v. Polasky, 216 N.J. Super. 549 (Law Div. 1986). A defendant who believes the State has not supplied relevant materials reasonably required for the defense may give notice to the State and the court prior to the date set for commencement of trial where possible. Ford, supra at 52. Information relating to prerequisite conditions establishing reliability is highly relevant, Ford, supra at 52 and extremely material. Id. at 51. Thus, information concerning conditions under which tests were held, the machine operator's competence, the particular machine's state of repair and identification, and documentation of the ampoule used for defendant's breath tests are all relevant inquiries. Id.
What the State Must Automatically Provide
In drunk driving cases, the State typically provides copies of a "drunk driving folio" which usually includes:
> summonses, front and back, > drinking driving report ["DDR"], including a check off list of observations and a narrative of investigation, > alcohol influence report ["AIR"]. including chemical test information and breathalyzer operational checklist ["checklist " ] > assay report for ampoule chemicals ["assay"], > breathalyzer operator certification card ["BOCC"], > certificate of analysis from the N.J. Division of State Police for breath alcohol simulator solution.
The State should also provide the following information, even with a general discovery demand in a DWI case Ford, supra at 52:
> full identification of the instrument used, > the date it was first placed in service by the State, > the type of instrument used, > the manufacturer of the instrument, > the model number of the instrument, > results of coordinator's testing of the instrument for approximately one year before and including the next testing after defendant's tests, > the time of administration of the tests, > the result. > reports and relevant documents signed by defendant, > reports concerning defendant's sobriety, including blood and urine tests. What Else Should be Supplied
The defense has requested, as other discovery, items such as:
> ampoules, > BTIICs for the 12 months preceding the arrest > breath testing instrument inspection procedures, > ampoule random sample testing procedures, > radio frequency interference testing procedures, > FCC licenses for radio frequencies assigned to police radio base.
Reference ampoules may be discoverable. See State v. Maure, 240 N.J. Super. 269 (App. Div. 1990), N.J. 457 (1991); Ford, supra; State v. Dohme, 223 485 (App. Div. 1988) ("Dohme I"); and State v. Dohme, 229 NJ Super. 49 (App. Div. 1988) ("Dohme II"). See also People v Hitch 12 Cal. 3d 641, 527 P.2d 361, 117 Cal.RPtr. 9 (1974). As to test ampoule discoverability in New Jersey, see State v Teare, 129 N.J. Super. 562 (Law Div. 1974), rev'd in part 133 NJ Super. 338 (App Div. 1975), appeal after remand 135 N.J. Super. 19 (Law Div. 1975) and State v. Bryan, 133 N.J. Super. 369 (Law Div. 1974). In seeking reference ampoules, the court may exercise its "discretion to order the turnover of a relevant ampoule in an appropriate case...." State v Young 242 NJ Super. 467 (App. Div 1990) Case law also suggest that defendants may discover breathalyzer operation and inspection procedures. As to operation of the breathalyzer, "[a] defendant .... need not know flawed procedures were used in giving a breathalyzer test in order for the State to disclose information about those procedures." Ford, supra at 49 (emphasis in original); see Tull, BTIIC's for the 12 months before a defendant's breath tests may show recurring or intermittent problems affecting the breathalyzer that would not necessarily show up on BTIIC's before and after the tests. And with BTIIC's since September 1983, the defense can demonstrate how the State has altered breath testing instrument inspection procedures, probably without proper authority, and perhaps changed the reliability procedures refereed to in Romano v. Kimmelman. 96 N.J. 66 (1984); see State v. Klemmer, 237 N.J. Super. Div. 1989), for an example of such a challenge in the context of Intoxicated Driver Resource procedures. The State typically seeks to prove BAC with breath test results obtained by a Breathalyzer Model 900 or 900A. The State must clearly prove certain conditions, among others:
1. The equipment was in proper working order was periodically inspected in accordance with procedures. Romano v. Kimmelman, 96 N.J. 66, 81 and 82 (1984) 2. The operator was qualified i.e., properly certified to administer the instrument. Id.; State v. Ernst, 230 N.J. Super. 238 (App. Div. 1989), cert den. 117 N.J. 40; 3. The test was given correctly-- ie in accordance with official instructions and accepted procedures. Romano, supra at 81 and 82 4.1. As to Breathalyzer Model 900: Hand held transmitters were banned from any area close to the instrument. Romano, supra at 85 4.2. As to Breathalyzer Model 900A: either two readings within 0.01 of each other were obtained, Romano, supra at 87 88 or a determination of radio frequency interference ["RFI"] sensitivity was made in accordance with state police inspection procedures followed in September 1983, and if RFI hand held transmitters and police cars with transmitters were banned from any area close to the instrument and extra care was used to shield it. Romano, supra at 88-89 > whether the lot number in the BTIIC's "simulator solution percentage" box is the same as breath alcohol simulator solution lot number as the certificate of analysis from the state police.
Items Defenses Counsel may be entitled to Discovery Regarding the Breathalyzer machine Who manufactured the breathalyzer used in the defendant's case: Stephenson, Smith & Wesson, National Draeger? When was the instrument placed in service? Breathalyzer operators must set the blood alcohol pointer on a start line. Depending on the manufacturer and date placed in service the start line could he either 0.010 or 0.003. If the defendant was tested on a newer instrument with a 0.010 start line, particularly in the close case, that use of the newer instrument violates due process and the defendant's right to equal protection under the law, and the defendant should at least be given the benefit of the doubt. Manuals about the operation, service, and maintenance of the breathalyzer should be available to defense counsel. They are also needed by defense counsel to prepare an effective cross examination. Defense counsel must prepare cross-examination prior to court, not during a trial.
Discovery Needed for Cross-Examination About Breathalyzer Inspection
Are breathalyzer model at trial numbers on the BTIICs and AIR the same? If not, the breathalyzer tested by the coordinator is probably not the same one the operator used to test the defendant, and there is a serious question of instrument identification. Do consecutive BTIICs ''bracket" (i.e., are they dated before and after) the date of the defendant's breath tests and are they consecutively numbered? If not, the defense cannot know whether the instrument was "in satisfactory working condition" on the day the defendant was tested. And a missing BTIIC may contain important information helpful to the defense. Are the same ampoule control numbers on both bracketing BTIICs and AlR? If not, the State may have difficulty proving that ampoule chemicals were properly constituted from a consistent batch. See Dohme I, supra; Dohme II, supra; and Maure, supra. Is the breathalyzer's assigned location on the BTIIC the same as the police station where tests were given to the defendant? If not, then the instrument may have been moved and its inspection, particularly as to RFI, may be irrelevant or at least questionable. What do BTIIC remarks, if any, say? If they note some complaint about the instrument, demand the complainant's identity and all documents concerning the complaint. If the coordinator wrote an opinion that the particular complaint would have either not affected breath test readings or made testing impossible, argue that such comments are inadmissible and should be excised from the document because they lack foundation and violate the defendant's right to confront this paper witness. State v. Matulewicz , 101 N.J. 27 (1985). If the coordinator removed the instrument from service, readings obtained by the instrument should not be admissible at all. Do frequencies identified in FCC licenses match the frequencies, if any, listed on BTIICs? If not, defense questions whether the instrument was properly and completely inspected for the effects of RFI. What does the certificate of analysis for the simulator solution say anyway? Neither language in the BTIIC ties it to the certificate nor does language in the certificate usually tie it BTIIC. Beyond a reasonable doubt standards prevent the court from raising an inference that breath testing instruments certified as being "in satisfactory working condition" are actually accurate.
Conclusion
It is well established that the prosecution of a defendant for a motor vehicle violation is a quasi-criminal proceeding. In such a proceeding the burden of proof is upon the state to establish all elements of the offense beyond a reasonable doubt. Unfortunately, plea bargaining is not permitted in Municipal Court DWI cases (while it is available in such varied charges as murder, careless driving, or the burning of old tires). Defense counsel must subpoena its necessary witnesses and prepare for trial. Never attempt to represent yourself if you are facing serious charges.
About the Author
Kenneth A. Vercammen is a trial attorney in Edison, Middlesex County, New Jersey. He often lectures for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College on personal injury, criminal / municipal court law, and drunk driving. He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, matrimonial hearings, and contested administrative law hearings.
Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.