New Jersey DWI Lawyer

SUPERIOR COURT OF NEW JERSEY        APPELLATE DIVISION
DOCKET NO.  A-4384-09T3
A-4775-09T3 

STATE OF NEW JERSEY,   Plaintiff-Appellant, 

v. 

NICOLE M. HOLLAND,  Defendant-Respondent.

 

___________________________ 

 

STATE OF NEW JERSEY,   Plaintiff-Respondent, 

v. 

KENNETH S. PIZZO, JR.,   Defendant-Appellant.

___________________________ 

APPROVED FOR PUBLICATION 

December 20, 2011 

APPELLATE DIVISION

Argued February 8, 2011 - Remanded  Re-argued November 7, 2011 - Decided 

Before Judges Parrillo, Alvarez and Skillman.

On appeal from Final Decision of Superior Court, Law Division, Monmouth County, Municipal Appeal Nos. 09069 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). 
December 20, 2011 April 5, 2011

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; Mr. Iler, on the brief).

The opinion of the court was delivered by

 PARRILLO, P.J.A.D. 

We had granted leave to appeal in these two matters

(Holland and Pizzo) 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) digital thermometer, instead of

the Ertco-Hart digital thermometer referenced in State v. Chun ,

194 N.J.  54, 89, 135, 152-53, cert. denied, 555 U.S. 825, 129 S.

Ct. 158, 172 L. Ed. 2d 41 (2008).  State v. Holland, 422 N.J.

Super. 185 (App. Div. 2011).  We held that the "Ertco-Hart

references in Chun  are merely identifiers explaining the

necessary firmware modifications and foundational documents

required with respect to one [digital thermometer,]" id. at 196,

and therefore "the use of another manufacturer's [digital

thermometer] to calibrate the Alcotest does not alone  compel

exclusion of test results . . . ."  Id.  at 197.

Because "the State still bears the burden of demonstrating

'the proper working order' of the device[,]" id.  at 197, and

because questions were raised "[b]ased upon the foundational

document itself," id. at 198, we remanded the consolidated cases

"for a hearing before a single judge to be designated by the

Assignment Judge 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."  Id.  at 200. 

Specifically, the remand court was asked to determine "whether

and how the differences in the [digital thermometers] had any

impact at all" on the performance of the singular function

required, namely to accurately read and report the temperatures

of the simulator solutions during the Alcotest calibration

process, id.  at 198; whether the Control Company certificate

suffers from any "facial irregularity" that would render the use

of its digital thermometer improper, id.  at 199; and whether the

Alcotest calibrations at issue in both cases occurred during the

period of time covered by the certificate for the digital

thermometer used, id.  at 199-200. 

On remand, the Law Division conducted a three-day hearing

during which it heard expert testimony adduced by the State on

the comparability of the Control Company and Ertco-Hart digital

thermometers and the validity of the Control Company's

certificate establishing National Institute of Standards and

Technology (NIST) traceability.  Following that hearing, the

judge, in a thorough, detailed and well-reasoned sixty-seven

page written decision, concluded that the Control Company

digital thermometer is comparable in all material respects to

the Ertco-Hart digital thermometer previously used during the

Alcotest calibration process; that the Control Company

certificate is facially valid, establishes NIST traceability

comparable to the Ertco-Hart certificate, and satisfies the

requirements as a foundational document as required in Chun ; and

that the calibration of the Alcotests in the Holland and Pizzo

matters were both completed within the two-year period of the

thermometer's certification.  These findings, in which we

concur, find ample support in the facts and law.

The procedural and factual background of these matters was 

set forth in our earlier opinion and need not be repeated here

save for a brief description of the calibration process, through

which a breath test coordinator certifies that an Alcotest is in

proper working condition.  The calibration process involves the

running of three sets of tests, which results in the printing of

three reports: the Calibration Record, the Part I Control Test,

and the Part II Linearity Tests.  Prior to commencing these

tests, the testing coordinator will prepare several alcohol

solutions.  The first is a 0.10% alcohol solution for the

control test.  The others are 0.04%, 0.08% and 0.16% alcohol

solutions for the linearity tests.  Each of these solutions must

be heated to 34.0 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. 

To do so, the coordinator will allow each solution to heat for

approximately one hour and then ensure that they have reached

the appropriate temperature using an external NIST-traceable1

temperature probe.

As noted, a Control Company digital thermometer was

utilized during the calibration of the separate Alcotests which

yielded the BAC results at issue here.  The Control Company

digital thermometer was used to measure the temperature of the

various simulator solutions as part of the control and linearity

tests during the respective calibrations of the Alcotests in                     

1 The Court in Chun required production of a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST-traceability as a foundational document certifying the reliability of the temperature probe used to ensure the appropriate temperature of the solutions prior to the commencement of calibration of the Alcotest machine.  194 N.J.  at 135.  The Court, however, did not require its admission into evidence because the document is "not fundamentally a part of demonstrating that the particular device was in good working order."  Id.  at 144-45.   

Neptune City (Holland) and Sea Girt (Pizzo).  The Control

Company digital thermometers are employed for the sole purpose

of insuring that the temperature of the various simulator

solutions is 34.0 degrees Celsius at the time the control and

linearity test portions of the calibrations process are

conducted.  There is a permissible tolerance of 0.2 degrees

Celsius.  As such, the temperature of the various simulator

solutions used during the various stages of the calibration

process must be between 33.8 and 34.2 degrees Celsius.  After

confirming a simulator solution is at the correct temperature,

the coordinator turns the digital thermometer off, removes it

and returns it to its padded plastic container.  

Once the coordinator has determined that the alcohol

solutions have reached their appropriate temperatures, the

coordinator will begin the actual calibration process, which, we

emphasize, does not involve the Control Company probe.  First,

the 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.  Upon completion of this

process, the Calibration Record is printed.  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, digital thermometer during pre-

calibration preparations.  Chun , supra, 194 N.J. at 106 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 and the Alcotest's internal thermometer.  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 temperatures of the

three solutions as measured during the test — again separate

from that measured by the Control Company digital thermometer

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

report.

Against this background, at the remand proceeding, Dr.

Howard J. Baum, who is the Director of the New Jersey State

Police's Office of Forensic Sciences and who qualified without

objection as an expert in the State's Breath Testing Program and

in scientific measurement, first explained the process of

replacing the Ertco-Hart digital thermometer.  According to

Baum, the replacement needed to satisfy several requirements

including that the instrument provide a precise temperature,

with an accuracy of at least 0.01 degrees Celsius between the

freezing and boiling points of water — "0.0 to 100.0" degrees

Celsius2; be traceable to the NIST to ensure that the thermometer

would give an accurate result; be calibrated properly by a

laboratory that was accredited and complied with international

standards for the calibration of thermometers, to ensure both

external and independent inspections of the laboratory; and

useable only for an Alcotest calibration during the period

between its "calibration date" and its "calibration due date"

(i.e. , the date on which the calibration of the digital

thermometer expires).  Baum concluded that the Control Company

thermometer satisfied all these requirements and no evidence to

the contrary was adduced by defendants Holland and Pizzo.

Dr. Baum also compared the relevant characteristics of the

Control Company and Ertco-Hart thermometers and identified the                     

2 While the calibration of the Alcotest permitted a range for the simulator solutions of between 33.8 to 34.2 degrees Celsius, Baum required that the replacement thermometer read to the onehundredth of a degree.  This would enable it to distinguish between, for example, 33.99 degrees and 34.00 degrees.

differences between the two, ultimately concluding that they are

comparable in all material aspects and identical in the

performance of the singular function required.  They both

accurately read and report the temperatures of the simulator

solutions during the Alcotest calibration process.  In this

connection, differences in size, weight and power source

actually favor use of the Control Company thermometer, which is

easier to use, smaller, more portable and does not require a

nearby electrical outlet.  Most significant, there is no

meaningful difference in accuracy.  In fact, conditions

identified as having the potential to affect accuracy of both

instruments are almost identical.  Moreover, no evidence was

presented that the digital thermometers operate differently

under divergent ambient humidity conditions.

On this score, "accuracy" is determined by how close a

temperature reading is to what it actually should be.  The

accuracy for the Control Company thermometer, as noted, is to

one hundredth (0.01) of a degree Celsius.  While the Ertco-Hart

digital thermometer is more "accurate," namely, to six

thousandths (0.006) of a degree, the difference in accuracy is

not scientifically significant for purposes of Alcotest

calibrations because the breath test coordinators measure in

tenths of a degree, and not in the thousandths of a degree.3

Lastly, no evidence was adduced that the difference in the

calibration time periods had any impact on the operation or

accuracy of the thermometers.  The Ertco-Hart digital

thermometer requires calibration annually whereas the Control

Company device is calibrated every two years by an accredited

scientific laboratory that makes this determination based on

available information and is subject to inspection, analysis and

examination as part of the accreditation process.4  In any event,

here the calibration of the Alcotests in the Holland (May 26,

2009) and Pizzo (March 6, 2009) matters took place within one

                    

3 As noted, the breath test coordinators utilize a permissible range of 33.8 degrees to 34.2 degrees when taking the temperatures of the simulator solutions.  As a result, it is irrelevant if the temperature might be at 33.806 degrees (which could be determined with accuracy by the Ertco-Hart digital thermometer) or 33.80 degrees (which can be determined with accuracy by the Control Company digital thermometer).

4 The reliability and accuracy of the Control Company digital thermometer was established by testimony setting forth its calibration by an accredited laboratory, which is regularly evaluated on the quality of its procedures, personnel, and work product in accordance with international standards.  Accreditation of a manufacturer's laboratory is regularly relied upon by scientists, providing assurances of accuracy and reliability of the scientific equipment purchased without the need for time-consuming personal investigation.  It is this accreditation that assured Baum and the coordinators that the Control Company digital thermometer will maintain its calibration for two years, as represented by the manufacturer.  

year of the calibration of the Control Company digital

thermometer (November 18, 2008).

 We are satisfied that sufficient credible evidence supports

the Law Division's finding that the two digital thermometers are

substantially equivalent in all respects necessary to the

performance of their singular functions.  The differences noted

are neither scientifically significant nor relevant to the use

of the thermometer in the Alcotest calibration process.

 Having found comparability, the Law Division then

considered whether the Control Company's Traceable Certificate

of Calibration constituted a proper foundational document for

the calibration of its digital thermometers, as required by

Chun .  Based on the undisputed expert proofs, the court found

that the Control Company certificate "provides substantially

more . . . relevant information [than the Draeger Certificate]

regarding the calibration process, the 'due dates' for the

equipment used during the calibration process and other

pertinent scientific data . . . ."  For instance, the Draeger

certificate makes no representation as to an accreditation of

Draeger at all and thus it cannot be determined on its face

whether the one-year period for the certification of the Ertco-

Hart thermometer is supported by the scrutiny and independent

approval that accreditation provides.  In contrast, the Control

Company certificate confirms that Control Company is accredited

as a calibration laboratory.  The certificate also establishes

that the Control Company digital thermometer was calibrated

prior to its use in the calibration of the Alcotests in the

Holland and Pizzo matters and prior to its expiration date, in

other words, while the certificate was valid and effective. 

Moreover, the remand court found no "facial irregularity" on the

certificate that would render use of the Control Company digital

thermometer improper, as claimed before the municipal court in

the Holland matter.

 Most significant, the certificate, labeled a "Traceable

Certificate of Calibration . . .," establishes that the Control

Company digital thermometer at issue here was calibrated with

instruments traceable to NIST, a characteristic it shares with

the Ertco-Hart digital thermometer and which is the only

"discernable characteristic" emphasized by the Chun  Special

Master in his findings and conclusions.  Holland , supra, 422

N.J. Super.  at 194-96.  Yet despite its comparability to the

Draeger certificate found acceptable in Chun , defendants contend

that to prove the validity of the Control Company certificate,

the State must also demonstrate that the measurements made by

the digital thermometer are NIST traceable in accordance with

requirements listed, described and published on a May 13, 2011

website admitted into evidence in the remand proceeding.  Chun,

however , imposes no such obligation on the State.  On the

contrary, the singular requirement imposed upon the State by

Chun with regard to the Ertco-Hart digital thermometer was the

production, as a foundational document, of the "Draeger Safety

Ertco-Hart Calibration Report" during discovery.  Chun, supra,

194 N.J.  at 153.  That document certified the digital

thermometer had "been tested for accuracy with instrumentation

that is traceable to" the NIST, and contains no representation

that its measurements  were NIST traceable.  The Control Company

certificate provides an identical certification, representing

that the digital thermometer "was calibrated using Instruments

Traceable to National Institute of Standards and Technology."

 Simply put, the Chun  Court did not require a certificate

representing that the digital thermometer's measurements were

NIST traceable.  Defendants' attempt to import and apply a

website's definition of "NIST traceable measurements" fails as

it seeks to impose a burden on the State beyond the production

in discovery of the certificate of calibration required by Chun . 

Nor does Chun  require, as defendants suggest, production of

documentation proving the underlying NIST traceability of the

instruments used by Control Company to calibrate its digital

thermometer.  Chun , supra, 194 N.J. at 144 (noting that the

"temperature probe documents" document "tests of tests"); see

also State v. Maure, 240 N.J. Super. 269, 283 (App. Div. 1990)

("Beyond such tests lie tests of the devices used to test other

measuring devices. These tests must end somewhere . . . .  We do

not doubt defendants' sincerity in attacking the adequacy of

these procedures.  However, the oft-heard layman's opinion that

the enforcement of the law can be frustrated by a 'legal bag of

tricks' must not be encouraged by slavish adherence to hyper-

technical requirements of myriad testings"), aff'd , 123 N.J. 457

(1991).

Lastly, defendant Holland contends for the first time on

this appeal after remand that the State's decision to switch to

the Control Company digital thermometer was made without the

"careful consideration" required by N.J.A.C.  13:51-3.2.  Not

only was this issue never raised below and therefore not

reviewable on appeal, Neider v. Royal Indem. Ins. Co. , 62 N.J.

229, 234 (1973), it is also without substantive merit, Rule 

2:11-3(e)(1)(E), inasmuch as the internal action of the State

Police in procuring instruments peripheral and incidental to

breath testing devices does not constitute rulemaking that is

subject to the provisions of the administrative code.  See  State

v. Garthe, 145 N.J. 1, 7-8 (1996); State v. Cleverly, 348 N.J.

Super. 455, 460-61 (App. Div. 2002).

In conclusion, we are satisfied that sufficient credible

evidence supports the remand court's findings that the Control

Company digital thermometer is comparable in all material

respects to the Ertco-Hart digital thermometer previously used

during the Alcotest calibration process, and that the Control

Company certificate is facially valid and satisfies the

requirements as a foundational document as required by Chun . 

Accordingly, we reverse the order of the Law Division in the

Holland matter suppressing the Alcotest results for failure to

provide a Draeger certificate as a requisite foundational

document.  We affirm that portion of the Law Division's order in

the Pizzo matter holding that the Alcotest results are not

inadmissible solely because the State used a Control Company

digital thermometer.  We remand both matters to the Law Division

for further proceedings consistent with this opinion.

 Affirmed in part; reversed in part; and remanded for