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(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).

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.

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).

    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.

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).

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.