(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 25, 1996 -- Decided June 27, 1996
O'HERN, J., writing for a unanimous Court.
At approximately 10:20 p.m. on January 25, 1992, a Spring Lake Police Officer on routine patrol
stopped John Garthe on Ocean Avenue for speeding. The officer observed Garthe fumble for his license and he
detected a strong odor of alcohol on Garthe's breath. The officer asked Garthe to step out of the car. When the
officer inquired about the contents of two red plastic cups on the car's console, Garthe replied that they
contained vodka and soda. Garthe showed poor balance during roadside tests; therefore, the officer placed
Garthe under arrest for driving while intoxicated (DWI). At police headquarters, Garthe consented to a
breathalyzer test. The arresting officer, a certified breathalyzer operator, performed tests at 11:31 p.m. and 11:41
p.m., using a Smith and Wesson Model 900 breathalyzer. Both tests indicated a .13 percent blood alcohol
content (BAC). Following the tests, Garthe admitted to having had six beers since 6:30 p.m. Based on the
breathalyzer readings and Garthe's admission of drinking, the officer charged him with DWI and other motor
vehicle offenses.
To establish at the municipal court trial that the breathalyzer was in proper operating order, the State
planned to offer a certified copy of a Breath Test Inspector's Inspection Certificate (BTIIC or Inspection
Certificate). Before trial, Garthe moved to exclude the breath test readings, contending that the State had failed
to comply with the procedural and substantive due process requirements of the Administrative Procedure Act in
establishing its breathalyzer testing procedures. Garthe also argued that in the absence of promulgated inspection
procedures, a court could not take judicial notice of any facts that would clarify the meaning of certain
conclusory language on the face of the Inspection Certificate, such as "OK" or "within acceptable tolerances."
Garthe claimed that the opinions and conclusions of the State Police Inspector on the face of the Inspection
Certificate would be hearsay statements, not probative of the working condition of Garthe's breathalyzer
instrument, and would fall under no exception to the hearsay rule.
The municipal court rejected Garthe's arguments and found him guilty of DWI. After a new trial
before the Law Division, Garthe's conviction was reimposed. The trial court also rejected Garthe's argument
that the Inspection Certificates were inadmissible as hearsay because Inspection Certificates used to certify that
the machines were in working order require discretionary conclusions rather than objective and quantifiable
findings based on defined standards. The trial court stayed Garthe's sentence pending his appeal to the Appellate
Division.
The Appellate Division reversed, holding that although the Inspection Certificates certifying the
machine's calibration before and after Garthe's testing were admissible as business records, the absence of any
identifiable standards used by the officer certifying the proper functioning of the breathalyzer instrument
rendered the Certificates useless to establish by clear and convincing proof that the machine was in proper
working order at the time of Garthe's breath test.
The Supreme Court granted the State's petition for certification.
HELD: Absent evidence that the test protocols established by the Division of State Police and the State are not
scientifically reliable to establish that breathalyzer machines are in proper operating order, the State
may, subject to the requirements of the New Jersey Rules of Evidence (N.J.R.E. 803(c)(6), 803(c)(8),
807 and 901) offer in admission at DWI trials a copy of Breath Test Inspector's Inspection Certificate.
1. When determining whether an agency action constitutes rulemaking, a court must consider several factors,
including: 1) the segment of the public to be affected by the administrative action; 2) the generality of
application of the agency action; 3) the prospectiveness of the result; and 4) the novelty of any legal standard
announced. The Court is satisfied that, giving proper weight to these factors, the action of the State Police in
setting forth procedures to test breathalyzer machines is more like an intra-agency memorandum than rulemaking.
Although this agency action (promulgation of test procedures) ultimately affects the general public, it does not
shape the conduct of the public. Nor did the test procedures set forth a legal standard or directive that is not
otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization.
The legal standards and directives for testing breathalyzers stem from a previous court decision that held that a
machine must be in proper working order at the time of the test. And, several prior decisions have referred to
the standards and procedures used to test breathalyzer machines. (pp. 6-8)
2. In a municipal court proceeding, a defendant is entitled to due process of law. Due process requires that
parties have adequate notice and opportunity to know the State's evidence and to present evidence in argument
and response. In this case, the Court deals with only the first of the three preconditions to the admissibility of
breathalyzer evidence, namely, that the instrument itself be in proper working order at the time of the test. The
procedures of protocol established by the State must be designed to ensure that the machine will produce reliable
results. If Garthe had reason to put in issue the nature and specifics of the test protocols employed, he would
have been entitled to discovery. However, there is nothing in the record that questions the circumstantial
probability of the BTIIC's trustworthiness. It is fair to take judicial notice of the case law that has described the
substance of those test procedures that lend objective reliability to the BTIICs. (pp. 8-14)
3. Because a DWI conviction has serious consequences, the Court examines and will continue to examine any
scientifically-sound challenge to the reliability of breathalyzer test results, and New Jersey will continue to
update its technology in this field. Nevertheless, there is no evidence that the machine itself is unreliable if
properly operated. Garthe did not directly challenge the reliability of the breathalyzer test procedures employed
by the Division of State Police. His challenge was procedural, not substantive. The actual test procedures
employed meet the Matulewicz standards for admissibility in terms of objectivity, regularity, routine quality, and
the absence of any motive to single out a specific analysis for the purpose of rendering a untrustworthy report.
There was no evidence to suggest that a combination of tolerances would cause a distortion in test results other
than that presently acknowledged to exist. (pp. 14-16)
Judgment of the Appellate Division is REVERSED and the judgment of conviction is REINSTATED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and
COLEMAN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
120 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN M. GARTHE,
Defendant-Respondent.
Argued March 25, 1996 -- Decided June 27, 1996
On certification to the Superior Court,
Appellate Division.
Mark P. Stalford, Assistant Prosecutor,
argued the cause for appellant (John A. Kaye,
Monmouth County Prosecutor, attorney; Paul J.
Feldman, Senior Staff Attorney, of counsel).
John Menzel argued the cause for respondent.
Boris Moczula, Special Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Deborah T.
Poritz, Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
The principal question in this appeal is whether the
standards and procedures for testing the breathalyzers used in
the prosecution of drunk driving cases must be set forth in
regulations adopted pursuant to the Administrative Procedure Act,
N.J.S.A. 52:14B-1 to -24. The related questions are whether the
testing protocols promulgated by the Division of State Police
after the decision below were those followed in this case, and
whether those protocols are sufficiently reliable and objective
so that the working condition of a breathalyzer may be
established without the testimony of the State Police Inspector
who examined it.
At approximately 10:20 p.m. on January 25, 1992, a Spring Lake Police Officer on routine patrol stopped defendant John Garthe on Ocean Avenue for speeding. After observing defendant "fumble through his wallet," the officer detected "a strong odor of alcohol" on defendant's breath. Suspecting that defendant was under the influence of alcohol, the officer asked the defendant to step out of the car. Defendant experienced some difficulty climbing out of the car. When the officer inquired about the contents of two red plastic cups on the car's console, defendant replied that they contained vodka and soda. By that time another officer had arrived on the scene. When defendant exhibited poor balance during roadside tests, that officer placed Garthe under arrest for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50.
At police headquarters, defendant consented to a breathalyzer test. The arresting officer, a certified breathalyzer operator, performed tests at 11:31 p.m. and 11:41 p.m. using a Smith and Wesson Model 900 breathalyzer.See footnote 1 Both
tests indicated a .13 per cent blood alcohol content (BAC).
Following the tests, defendant admitted to drinking six beers
since 6:30 p.m. at the Belmar Fishing Club. Based on the
breathalyzer readings and defendant's admission of drinking, the
officer charged defendant with driving while intoxicated and
other motor vehicle offenses.
To establish at the municipal court trial that the
breathalyzer was in proper operating order, the State planned to
offer a certified copy of a Breath Test Inspector's Inspection
Certificate (BTIIC or Inspection Certificate). Before trial,
defendant moved to exclude the breath test readings on the basis
that the State failed to comply with the procedural and
substantive due process requirements of the Administrative
Procedure Act in establishing its breathalyzer testing
procedures.
Defendant also argued that in the absence of promulgated
inspection procedures, a court could not take judicial notice of
any facts that would clarify the meaning of certain conclusionary
language on the face of the inspection certificates, such as "OK"
or "within acceptable tolerances." Thus, defendant argued that
the opinions and conclusions of the State Police inspector on the
face of the inspection certificates would be hearsay statements,
not probative of the working condition of Garthe's breathalyzer
instrument, and would fall under no exception to the hearsay
rule.
Rejecting defendant's arguments that the certificates were
inadmissible as business or official records, the municipal court
found defendant guilty of a per se violation of DWI. N.J.S.A.
39:4-50(a) provides that "[a] person who operates a motor vehicle
. . . with a blood alcohol concentration of 0.10" or more by
weight of alcohol in the defendant's blood" is guilty of DWI and
subject to the punishments established for that offense. The
court fined defendant $250.00, directed that he serve twelve to
forty-eight hours in an Intoxicated Driver Resource Center over a
two-day period, and, in addition to imposing other costs and
fees, revoked his license for six months.
The Law Division reimposed defendant's conviction after a
trial de novo. That court again rejected defendant's argument
that the inspection certificates were inadmissible as hearsay
because the certificates of inspection used to certify that the
machines were in working order required discretionary conclusions
rather than objective and quantifiable findings based on defined
standards. The court stayed defendant's sentence pending appeal
to the Appellate Division.
On appeal, the Appellate Division reversed in an unreported
opinion. It held that although inspection certificates
certifying the machine's calibration before and after the
defendant's testing were admissible as business records, the
absence of any identifiable standards used by the officer
certifying the proper functioning of the breathalyzer instrument
rendered the certificates useless to establish by clear and
convincing proof that the machine was in proper working order at
the time of defendant's breath test. In the absence of such
standards, the court believed that it "was being asked to accept
on blind faith the subjective conclusions of the inspector." It
reasoned that "[i]f there were published regulations setting
forth what standards or deviations from such standards would
constitute proper working order or acceptable tolerances, perhaps
the abbreviated report of the results might be acceptable." It
thus concluded:
The present certificates, properly in
evidence as an exception to the hearsay rule,
only placed before the court the conclusion
of the breathalyzer inspector that in the
inspector's opinion the machine tested within
"acceptable tolerances" and that the various
working systems in the instrument functioned
"O.K." The court, however, had no way of
knowing what that meant.
We granted the State's petition for certification to review the
reversal of defendant's conviction.
143 N.J. 321 (1995).
Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984), sets forth the test to apply when determining whether an agency action constitutes rulemaking:
[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.
All of those factors need not be present for an agency
determination to constitute rulemaking and are to be balanced
according to weight, not number.
Obviously, not every action of a State agency, including
informal action, is subject to the formal notice and comment
requirements of N.J.S.A. 52:14B-4. In making this qualitative
determination, we have generally considered: (1) the segment of
the public to be affected by the administrative action; (2) the
generality of application of the agency action; (3) the
prospectiveness of the result; and (4) the novelty of any legal
standard announced. George Harms Constr. Co. v. New Jersey
Turnpike Auth.,
137 N.J. 8, 18 (1994) (citation omitted).
We are satisfied that, giving proper weight to the factors,
the action of the State Police in setting forth procedures to
test breathalyzer machines is more like an intra-agency
memorandum than rulemaking. Regulations generally are needed
when the affected public must conform its conduct with the
governmental directive. Although this agency action
(promulgation of test procedures) ultimately affects the general
public, the agency action does not, in any sense, shape the
conduct of the public. The conduct of the public is fully
circumscribed by the provisions of N.J.S.A. 39:4-50 to -51(a),
the drunk driving statutes.
Nor do we view those test procedures as setting forth "a
legal standard or directive that is not otherwise expressly
provided by or clearly and obviously inferable from the enabling
statutory authorization." Metromedia, supra, 97 N.J. at 331.
The legal standards and directives for testing breathalyzers stem
from this Court's decision in Romano v. Kimmelman, supra, that
the machine must be in "proper working order" at the time of the
test. 96 N.J. at 82. We are informed that the test procedures
were derived from the manufacturer's recommendations. A number
of prior decisions had referred to the standards and procedures
used to test breathalyzer machines. E.g., State v. Maure,
240 N.J. Super 269 (App. Div. 1990), aff'd,
123 N.J. 457 (1991);
State v. Slinger,
281 N.J. Super. 538 (App. Div. 1995).
An almost identical issue of rulemaking was presented to the
Washington Supreme Court in State v. Straka,
810 P.2d 888 (1991).
Washington law requires that the state toxicologist approve
methods to test the devices in use there for breath alcohol
analysis. Although operating under a slightly different
administrative framework, the Washington court held that its
state toxicologist was not required to promulgate through formal
administrative rulemaking the methods to be used for evaluating
and certifying the operability of its devices for measurement of
a person's BRAC. The court reasoned that the toxicologist's
establishment of test procedures did not constitute "rules" that
"establishe[d], alter[ed], or revoke[d]" a citizen's enjoyment of
driving "benefits or privileges conferred by law." Id. at 892.
We agree with that reasoning.
Compliance with the Administrative Procedure Act, however, does not exhaust the sum of constitutional due process. A municipal court proceeding is a quasi-criminal proceeding in which a defendant is entitled to due process of law. The essence of due process certainly requires that the parties have adequate
notice and opportunity to know the State's evidence and to
present evidence in argument and response.
In Romano, supra, we held that the results of a Smith &
Wesson breathalyzer test generally would be admissible in
evidence in DWI prosecutions
when the breathalyzer instrument is in proper
working order, is administered by a qualified
operator and is used in accordance with
accepted procedures, and that such results
may, upon the establishment of these
conditions, form the basis upon which a
conviction of violating N.J.S.A. 39:4-50 may
be obtained.
We further held that "the responsibility for establishing all
conditions as to the admissibility of the breathalyzer results is
properly allocated to the State." Id. at 91. Those conditions
must clearly be established by the standard conventionally
referred to as "clear and convincing proof." Id. at 90.
In this case, we deal only with the first of the three
preconditions to the admissibility of breathalyzer evidence,
namely, that the instrument itself be in proper working order at
the time of the test. We agree that the procedures or protocols
established by the State must be designed to ensure that the
machine will produce reliable results.
To meet its burden to establish by clear and convincing
proof the conditions for admissibility of the breathalyzer
results, the State offered a breathalyzer inspection certificate
in the form set forth in Appendix "A" of this opinion. Actually
there were two such certificates--one covering an inspection
before Garthe was tested and one after. As noted, defendant
objected to the admissibility of those certificates as business
or official record exceptions to the hearsay rule. See N.J.R.E.
803(c)(6) and 803(c)(8) for the current versions of those rules.
In State v. Matulewicz,
101 N.J. 27 (1985), we discussed the
scope of the official or business records exceptions in the
context of criminal forensic proofs. Matulewicz involved the
admissibility of a State Police laboratory report to establish
that substances were drugs. We held that more data on the manner
of the report's preparation was required to validate the
admissibility of the report without producing the laboratory
technician.See footnote 3 We noted that the official or business records
exception is founded upon the theory
"that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence." Mahoney v. Minsky, 39 N.J. 208, 218 (1963). However, this general acceptance of reliability will not attach if "the trial court, after examining them . . . and hearing the manner of their preparation
explained, entertains serious doubt as to
whether they are dependable or worthy of
confidence." Ibid.
[Matulewicz, supra, 101 N.J. at 29-30.]
Among the factors to consider in determining reliability are
the relative degrees of objectivity and
subjectivity involved in the procedure; the
regularity with which these analyses are
done; the routine quality of each analysis;
the presence of any motive to single out a
specific analysis for the purpose of
rendering an untrustworthy report, and the
responsibility of [the technician] to make
accurate and reliable analyses.
We noted that "`there is a presumption, absent contrary
testimony, that those responsible for services to the public will
carry out their duties in a proper, careful and prudent manner.'"
Id. at 31 (quoting State v. Hudes,
128 N.J. Super. 589, 602 (Law
Div. 1974) and citing State v. McGeary,
129 N.J. Super. 219 (App.
Div. 1974) (holding that there is no basis for conceiving that
State Police Inspector would violate duty and certify that
breathalyzer was functioning properly when truth was to the
contrary)) (other citation omitted).
Following the 1974 McGeary decision, municipal courts
received in evidence the inspection certificates prepared by the
State Police Inspector assigned to the machine. In his Guide to
Hearing Drunk Driving Cases, Nathan S. Kirsch wrote:
In State v. McGeary . . . the court
ruled that the working condition of the
[breathalyzer] machine could be proved
without the testimony of the State Trooper
who examined it. A certificate of inspection
could be introduced under our Rules of
Evidence 63(13) as a business record of the
police department, or it could be admitted
under our Rules of Evidence 63(15) as a
report or finding of a public official
subject to the authentication of the
trooper's signature (under Rule 67) and
subject to timely notice being given to the
defendant of the State's intended use of the
inspection certificate (Rule 64).See footnote 4
[Nathan S. Kirsch, J.M.C. (Ret.), New Jersey
Department of Health, Guide To Hearing Drunk
Driving Cases, 29 (Revised September 1993)
(citation omitted).]
As noted, at the municipal court level the objection to the
admissibility of those certificates was that the report was based
on "discretionary conclusions rather than objective,
quantifiable, observable standards." The Appellate Division
reversed, not because the conclusions of the testing officer were
discretionary, but, rather, because it had no way of knowing
whether they were discretionary or routine.
If defendant had reason to put in issue the nature and
specifics of the test protocols employed, he would have been
entitled to discovery. See Richard Zylman et al., Defending the
Drinking Driving Charge in New Jersey 94-96 (1985).See footnote 5 We were
informed at oral argument that the Superintendent of the State
Police had once published the test protocols but withdrew the
specifications because they had not been properly approved.
Following the Appellate Division's decision in this case, they
were republished and are set forth in Appendix "B" of this
opinion. There is no genuine dispute in this case that those
were the standards and protocols that were followed.
Defendant has raised a number of concerns about the
reliability of the State Police test procedures. For example,
there is no requirement that the officer conducting the test
record certain actual readings of the machine under test
circumstances. One test requires that the breathalyzer's
internal temperature should be 50 degrees Celsius (122 degrees
Fahrenheit), plus or minus 3 degrees Celsius. Instead of
recording the machine's temperature, the officer reports "OK."
Defendant contends that the police should be required to record
the machine's actual temperature. Similarly, if the machine
reads the simulated breath alcohol percentage within the
acceptable parameters, the test operator is instructed to note
that "6 tests [were] within acceptable tolerance," that is,
within 0.0l0 of each other and within the range of 0.090 and
0.105. Defendant has suggested that the actual readings would be
relevant to challenge the reliability of the machine because the
combination of tolerances might demonstrate a flaw in the
machine. However, there is nothing in the record that questions
the "circumstantial probability of [the BTIIC's]
trustworthiness." Matulewicz, supra, 101 N.J. at 29-30. We
consider it fair to take judicial notice of the case law that has
described the substance of those test procedures that lend
objective reliability to the BTIICs. We also note that New
York's procedures for testing breathalyzer machines and method of
recording the results of such tests on certificates of
calibration are substantially similar to New Jersey's. See Peter
Gerstenzang, Handling The DWI Case In New York, 427 (Appendix 42)
(West 1988).
What undoubtedly concerned the Appellate Division is that in an earlier decision it had ordered the Division of State Police to adopt its breathalyzer testing procedures in accordance with the New Jersey Administrative Practice Act. The proper procedure to challenge that order would have been to appeal the order.
The Legislature has made an enormous commitment of the public's trust to the reliability of the Smith & Wesson breath testing device. A citizen's right to drive, and sometimes to liberty, will depend on the verdict of a machine. Like the Legislature, we acknowledge, however, that "[e]very method of ascertaining blood alcohol carries inherent problems. No method is 100" accurate." State v. Downie, supra, 117 N.J. at 468. "All mechanical and scientific devices have some degree of tolerance within which they are accurate. Breath test devices are no exception." E. John Wherry, Jr., The Rush to Convict DWI Offenders: The Unintended Constitutional Consequences, 19 U. Dayton L. Rev. 429, 448 (1994); see also State v. Downie, supra,
117 N.J. at 462 (acknowledging, however, that "in only 2.3" of
cases does the breathalyzer materially overestimate the blood
alcohol level potentially to the detriment of the accused").
Because of the magnitude of the consequences of a DWI
conviction, we have examined, and will continue to examine, any
scientifically-sound challenge to the reliability of breathalyzer
test results. See generally Romano, supra,
96 N.J. 66; Downie,
supra,
117 N.J. 450 (entertaining challenges and ordering remands
for fact finding to assess possible effect on test results of
radio frequency interference of blood-breath ration deviations
among DWI suspects).
Despite the scientific validation of the breathalyzer, some
continue to question the fairness of the application of the DWI
statute. See generally Russell J. Carbone and Stanley J.
Broskey, Why Courts Should Allow DWI Defenses,
144 N.J.L.J. 243
(April 15, 1996) (observing that New Jersey is among the few
states in which the breathalyzer machine does not itself record
the BRAC, leaving it to the operator to read the gauge and that
other states have adopted infrared devices or automatic printing
breath detectors). We are certain that New Jersey will continue
to update its technology in this field but there is no evidence
that the machine itself is unreliable if properly operated.
In this case, defendant did not directly challenge the
reliability of the breathalyzer test procedures employed by the
Division of State Police. His challenge was procedural, not
substantive. Because defendant did not seek to discover before
trial the test procedures employed, he was able to pose a
hypothetical absence of objectivity in the test procedures. The
actual test procedures employed meet the Matulewicz standards for
admissibility in terms of "objectivity . . . regularity . . .
routine quality," and absence of any "motive to single out a
specific analysis for the purpose of rendering an untrustworthy
report." 101 N.J. at 30. There was no evidence to suggest that
a combination of tolerances would cause a distortion in test
results other than that presently acknowledged to exist. Absent
any such evidence that the test protocols established by the
Division and State are not scientifically reliable to establish
that breathalyzer machines are in proper operating order, the
State may, subject to the requirements of N.J.R.E. 803(c)(6),
803(c)(8), 807 and 901, offer in admission at DWI trials
inspection certificates in the form annexed hereto.
The judgment of the Appellate Division is reversed and the
judgment of conviction is reinstated.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN join in JUSTICE O'HERN's opinion.
NO. A-120 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JOHN M. GARTHE,
Defendant-Respondent.
DECIDED June 27, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1The breathalyzer is essentially a light balancing device. The machine contains a source of light positioned between two
photoelectric cells that measure the intensity of the light. The light directed to each of the cells is filtered through two chemical cells (the ampoules). A needle on the machine indicates when the current from both cells is equal and opposite. To conduct a test of a suspected drunk driver, one of the ampoules is broken and the driver's breath sample is bubbled through the chemicals in the ampoule. Alcohol in the breath lightens the color of the ampoule. This in turn increases the light passing through the ampoule, causing the current from that ampoule's cell to increase and the needle measuring the energy output to move. To measure the alcohol in the breath, the operator moves the light until the needle again reads zero. The distance traveled by the source of light is calibrated to measure the alcohol in the breath. Romano v. Kimmelman, 96 N.J. 66, 79-80 (1984). The concentration of alcohol in the breath (BRAC) is correlated by a scientific formula to the alcohol concentration in the brain (BAC). State v. Downie, 117 N.J. 450, 451, cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed.2d 38 (1990). Footnote: 2Because the Model 900A Smith and Wesson breathalyzer was potentially subject to radio frequency interference, the Court imposed additional safeguards for the use of that model. Footnote: 3N.J.S.A. 2C:35-19 now requires a defendant to object to a proffer of a State Police laboratory report of drug testing within ten days of receiving notice that the State intends to rely on the certificate. Footnote: 4The Evidence Rules cited correspond now, respectively, to N.J.R.E. 803(c)(6), 803(c)(8), 901 and 807. Footnote: 5The authors of that treatise suggest to those defending DWI cases in New Jersey that they rely on Evidence Rule 64 (now 807) to exclude the test certificates. That Rule gives discretion to courts to exclude evidence if the State has not given fair notice of intent to rely on the official records exception. Suggested discovery materials did not include the breathalyzer test procedures. Defending the Drinking Driving Charge, supra, at 98.