On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. 78-02.
Before Judges Kestin, Cuff and Lario.
The opinion of the court was delivered by: Lario, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2003
Upon de novo review of defendant's conditional plea of guilty to a per se violation of driving while intoxicated, N.J.S.A. 39:4-50, the Law Division judge suppressed the results of the breathalyzer test administered to defendant. The reviewing judge held that the absence of the initial breathalyzer training course completion date on the test operator's breathalyzer certification card rendered the card invalid. Therefore, the certification card was inadmissible as proof that the operator was qualified to administer the test, warranting the exclusion of the test results. Romano v. Kimmelman, 96 N.J. 66, 90-91 (1984); State v. Johnson, 42 N.J. 146, 171-172 (1964). The judge"reversed" the conviction of the municipal court and entered a judgment of"not guilty". He stayed his order pending appeal. The State appeals the judgment of the Law Division. We reverse and remand to the Municipal Court.
Prior to trial in the Southampton Township Municipal Court, defendant's attorney moved to exclude the results of the breathalyzer test. He argued that the Administrative Code (N.J.A.C. 13:51-1.3(a)) required proof of a valid operator's breathalyzer certification card as a condition precedent to the administration of the test and the subsequent admission of the test results into evidence at trial. The prosecutor advised the court that he was prepared to introduce the trooper-operator's original card*fn1 that"shows it was issued on June 24, 1988." On the back of the card are the dates of the trooper's attendance at the recertification courses, commonly referred to as"refresher courses". The prosecutor represented, without dispute, that the trooper"remained current with his qualifications," as the card demonstrated.*fn2 The card was properly completed and certified except for the date of the trooper-operator's initial course instruction completion date when he first was qualified as a breathalyzer operator. That line, which is on the back of the card, is blank.
The prosecutor argued to the municipal court:
The back of the card course dates, where there's a line for course dates that is blank, but the front of the card, again, this is the original card *fn3, shows it was issued on June 24, 1988. And, of course, the State's position is that the original course dates do not need to be listed on the back of an original card. It's only when a replacement card is issued when the original course dates are then inserted. But if we have the original card which also shows all the refresher courses that that is sufficient to establish a foundation that the trooper was properly trained and qualified to operate the breathalyzer with[out] any question.
Defendant's counsel disagreed and requested the opportunity to brief his position. The municipal judge stated:"Well, let me put it this way. I'm not going to exclude the breathalyzer reading because... course dates were not on his card.... I don't need a brief to make that decision." Defendant's attorney responded:
With your permission, if that's the court's ruling on our motion in limine to exclude based on that without briefs, then with the prosecutor's consent, we'll enter a conditional plea and respectfully request an opportunity to appeal to the Superior Court.
The prosecutor consented to defendant's request to enter a conditional guilty plea. A conditional plea was entered upon an appropriate fact basis. The judge noted defendant's breath test reading of.20%, and defendant's counsel advised the court that defendant was a second offender. Sentence was imposed of a $501 fine, $30 costs, $200 surcharge, $50 violent crime penalty, $75 safe street assessment, two-year driver's license suspension, thirty days jail, suspended, upon condition that defendant complete forty-eight hours in an intoxicated driver resource center program, and thirty days community service.
Defendant's argument in the Law Division, with which the Law Division judge agreed, was as follows:
(1) N.J.A.C. 13:51-1.7(a) provides:
Initial certification of an operator will be documented by the issuance of a certificate and replica which shows that the operator has completed the required course of training, including the date of the initial course completion and type of approved instrument, or instruments, upon which the operator has been certified. Said certifications, as evidenced by the certificate and replica, shall become valid upon satisfactory completion of training for initial certification... and shall remain valid throughout the remainder of ...