Breath Testing Devices

The following are important New Jersey Supreme Court decisions concerning the admissibility of breath test results. In State v. Garthe, 145 N.J. 1 (1996), the Court held that the protocols established by the State police for testing breathalyzer machines must be designed to ensure the machine will produce reliable results, but that the adoption of those protocols is more akin to a State Police intra-agency determination rather than rulemaking. Therefore, adoption or modification of the protocols need not comply with the Administrative Procedure Act.

Furthermore, in the same court decision, the Court established that absent evidence that the test protocols established by the Division of Criminal Justice and State Police are not scientifically reliable to establish that the breathalzyer machines are in proper operating order, the State may, subject to the business records and public records exceptions to the hearsay rule, offer Breath Test Instrument Inspection Certificates as admissible evidence in DWI trials. Id. at 13-14. This remains the norm in New Jersey DWI trials as these inspection certificates are key in establishing the reliability of the breathalyzer readings.

Finally, in Romano v. Kimmelman, 96 N.J. 66 (1984), the New Jersey Supreme Court held that a breathalyzer test result is admissible in a DWI prosecution only if it is first established that “the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures.” The State bears the responsibility for establishing all conditions of admissibility by clear and convincing evidence.