27 A.3d 1212
N.J. Super. Ct. App. Div.2011Background
- Holland and Pizzo were convicted of per se DWI offenses after Alcotest BAC readings (0.16% and 0.15%).
- Holland argued the Alcotest results should be excluded because a Control Company temperature probe, not Ertco-Hart, was used in calibration.
- Pizzo sought a N.J.R.E. 104 hearing on calibration data and missing device data before admitting the BAC result.
- The municipal and Law Division judges split: Holland suppression due to probe issue; Pizzo allowed evidence with remand for reliability questions.
- The Court reversed the automatic exclusion based on the probe manufacturer and remanded for a consolidated 104 hearing to determine reliability of the Control Company probe.
- The decision clarifies that Chun requires core documents but does not mandate Ertco-Hart exclusively; a 104 hearing assesses probe comparability and reliability before final admissibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Alcotest results with different temperature probes | Holland: Control Company probe invalidates reliability | State: probe differences do not compel exclusion | Remand for reliability hearing; not automatic exclusion |
| Role of core documents under Chun | State must prove device in good working order via core docs | Core docs suffice plus discovery for challenges | Core docs admissible; remand to address probe-specific issues |
| Comparability of Control Company vs Ertco-Hart probe | Need verification of comparability to Ertco-Hart | Certification shows traceability; comparable if reliable | Remand to determine whether Control Company probe is comparable |
Key Cases Cited
- Chun v. State, 194 N.J. 54 (N.J. 2008) (establishes foundational documents and requirements for admissibility of Alcotest results)
- State v. Ugrovics, 410 N.J. Super. 482 (App.Div. 2009) (notes flexibility to avoid undue prosecutorial restrictions in DWI prosecutions)
- Romano v. Kimmelman, 96 N.J. 66 (N.J. 1984) (reliability of breathalyzer models not limited to a single manufacturer)
- State v. Samarel, 231 N.J. Super. 134 (App.Div. 1989) (addresses manufacturer-specific limitations in BAC admissibility)
- State v. Laurick, 231 N.J. Super. 464 (App.Div. 1989) (rejects manufacturer-exclusive limits on admissibility)