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State v. Howard

June 1, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS R. HOWARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Salem County, Docket No. MCA-10-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2007

Before Judges Winkelstein and Baxter.

Defendant Thomas Howard appeals from a conviction on a charge of driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. After being found guilty in the municipal court of Alloway Township, defendant appealed to the Law Division, where a trial de novo again resulted in his conviction. Because that infraction represented defendant's third driving while intoxicated conviction, Judge Forester sentenced him to a mandatory 180-day jail term and a mandatory ten-year loss of driving privileges. Appropriate fines and penalties were also assessed. The custodial portion of the sentence was stayed pending appeal.

On appeal, defendant argues:

I. UNCONTROVERTED EXPERT TESTIMONY CONCERNING THE IMPACT A DEFENDANT'S MEDICAL CONDITION HAD ON THE RELIABILITY OF BREATHALYZER TEST RESULTS IS ADMISSIBLE UNDER N.J.R.E. 703 WHEN SUCH TESTIMONY IS BASED ON THE EXPERT'S REVIEW OF THE DEFENDANT'S MEDICAL RECORDS, DISCOVERY, IN-COURT TESTIMONY OF OTHER WITNESSES AND AN IN-PERSON INTERVIEW OF THE DEFENDANT.

II. THE GUTH LABORATORIES CERTIFICATE OF ANALYSIS AND THE SIMULATOR SOLUTION CERTIFICATE SHOULD NOT BE ADMISSIBLE WHEN A DEFENDANT TIMELY OBJECTS TO THEIR ADMISSION AND IS DENIED EVEN THE MERE OPPORTUNITY PURSUANT TO CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004) AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION TO CONFRONT THE ANALYSTS WHO PREPARED SAID CERTIFICATES.

III. THERE SHOULD BE A RIGHT TO INDEPENDENTLY TEST AMPOULES FROM A SPECIFIC "LOT NUMBER" WHEN EXPERT TESTIMONY DEMONSTRATES THAT PREVIOUSLY TESTED AMPOULES FROM TEN DIFFERENT LOT NUMBERS HAD SIGNIFICANT VARIATIONS IN THEIR PHYSICAL AND CHEMICAL COMPOSITION IN MORE THAN FIFTY PERCENT OF THE AMPOULES TESTED.

Each of these claims lacks merit, and we affirm defendant's conviction and sentence.

I.

On September 11, 2004, Trooper James Kopko was on routine patrol in Alloway Township when he stopped defendant's vehicle after observing it cross over the center line approximately three times. Defendant appeared dazed and had difficulty producing his license and registration. Kopko testified that defendant had bloodshot eyes, slurred and slow speech, and an odor of alcohol emanated from his breath. Kopko directed defendant to step out of the vehicle so that he could administer field sobriety tests. According to Kopko's testimony, defendant was unable to perform the heel-toe test or the one-leg stance. Defendant's inability to properly complete the field sobriety tests combined with the odor of alcohol caused Kopko to arrest him for driving while intoxicated. Kopko transported defendant to the Woodstown State Police Barracks so that a breathalyzer test could be administered.

Kopko testified that he followed the fifteen prescribed steps for administration of the breathalyzer test. Defendant's first breathalyzer examination resulted in a reading of 0.12%, and the second, conducted fourteen minutes later, resulted in an identical reading.

The State called Trooper William Cross, the coordinator for the Alcohol Drug Test Unit of the State Police in Salem and three other counties, who testified regarding the reliability of the machine. Cross explained that he had tested the particular Breathalyzer Model 900 located at the Woodstown Barracks that had been used to measure defendant's alcohol consumption on the night in question. He had tested the machine both before and after defendant's arrest for DWI on September 11, 2004, with those two tests occurring on August 18, 2004 and September 30, 2004. On each of those two occasions, Cross performed six tests to determine the accuracy ...


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