32 A.3d 571
N.J. Super. Ct. App. Div.2011Background
- Holland and Pizzo challenged the admissibility of BAC results where the Alcotest was calibrated using a Control Company digital thermometer rather than the Ertco-Hart thermometer referenced in Chun.
- The prior Appellate Division remanded for a single judge to determine the reliability of the Alcotest results and the validity of the Control Company Traceable Certificate of Calibration.
- Remand proceedings produced a three-day evidentiary hearing and a 67-page written decision finding the Control Company thermometer comparable to Ertco-Hart and the certificate facially valid.
- The remand court concluded the calibration in Holland (May 26, 2009) and Pizzo (March 6, 2009) occurred within the thermometer’s two-year certification period and were thus acceptable.
- The court held Chun does not require proof that the thermometer measurements themselves are NIST traceable; rather, it requires a valid foundational document showing a proper calibration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the thermometers comparable in material respects? | Holland contends comparability is not established. | State argues Control Company is comparable to Ertco-Hart for the calibration function. | Yes; thermometers are substantially equivalent for their calibration function. |
| Does the Control Company certificate satisfy Chun as a proper foundational document? | Holland argues the certificate is defective or insufficient. | State asserts the certificate is facially valid and adequate under Chun. | Yes; certificate satisfies Chun’s foundational document requirement. |
| Was the State’s switch to the Control Company thermometer subject to administrative-rule considerations? | Holland claims improper process under related rulemaking provisions. | State maintains no rulemaking applicability; action presumed incidental. | No substantive merit; not reviewable as rulemaking. |
Key Cases Cited
- State v. Chun, 194 N.J. 54 (N.J. 2008) (foundational documents and calibration proof for Alcotest temperature readings)
- State v. Maure, 240 N.J. Super. 269 (App. Div. 1990) (tests and limits on measurements of testing devices)
- State v. Garthe, 145 N.J. 1 (1996) (rulemaking and administrative considerations in criminal prosecutions)
- State v. Cleverley, 348 N.J. Super. 455 (App. Div. 2002) (administrative considerations and evidence in breath testing contexts)