July 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN TRAINOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. 009-21-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2008
Before Judges Coburn, Fuentes and Chambers.
Defendant Kevin Trainor appeals from his third conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. This case has an unusual procedural history.
On August 9, 2004, defendant appeared with counsel before the Hackensack Municipal Court and pled guilty to DWI. At the sentencing hearing, the municipal prosecutor informed the court that defendant had two prior DWI convictions, the first on May 10, 1991, and the second on December 20, 2002. Thus, because more than ten years had lapsed between the first and second convictions, defendant should be sentenced as a second offender. The municipal court judge agreed, and defendant was sentenced accordingly.
Thereafter, defendant appeared before the Rochelle Park Municipal Court on a charge of driving while suspended. Upon reviewing defendant's driving abstract, the Rochelle Park municipal judge realized that under State v. Burrows, 349 N.J. Super. 225 (App. Div.), certif. denied, 174 N.J. 43 (2002), defendant should have been sentenced in Hackensack as a third DWI offender. In a letter dated September 26, 2005, the Rochelle Park municipal judge informed his Hackensack colleague of his discovery, and suggested that defendant be brought back for re-sentencing.
On November 16, 2005, defendant appeared before the Hackensack Municipal Court. After overruling defense counsel's objection, the judge applied our holding in Burrows and re-sentenced defendant as a third DWI offender. Specifically, the court sentenced defendant to serve 180 days in the Bergen County Jail, suspended his driver's license for a period of ten years, and imposed the mandatory fines and penalties.
On appeal, the Law Division vacated defendant's original 2004 guilty plea, and remanded the matter to the Hackensack municipal court for trial. After vacating defendant's guilty plea and reinstating the original charges of DWI, reckless driving and crossing over yellow lines, the case was tried before the Hackensack Municipal Court. The court found defendant guilty of DWI and crossing the yellow lines, and not guilty of reckless driving.
The court sentenced defendant, as a third DWI offender, to serve a 180 day term of incarceration, suspended his driving privileges for ten years, suspended his registration for two years, and ordered him to pay the mandatory fines and penalties. For crossing the yellow lines, the court ordered defendant to pay a $100 fine, and assessed two points.
Acting on defendant's petition, the Law Division considered the matter de novo, and found defendant guilty on both charges. The sentence imposed for the third DWI conviction was the same in all respects but one. The Court increased the registration suspension from two to ten years and merged the sentence for crossing the yellow lines.
We summarize the following facts from the evidence presented at trial. While on patrol on February 12, 2004, at approximately 10:30 p.m., Hackensack Police Officers Justin Delabruyere and Brian Corcoran saw a blue Chevrolet van, heading westbound on Essex Street, cross over the double yellow line into oncoming traffic; this occurred on two separate occasions. The officers stopped the van and asked its driver (defendant) for his driver's license, registration, and insurance identification card, which he produced.
At this point, Delabruyere smelled alcohol emanating from the van, and asked defendant to get out of the vehicle. As defendant got out of the van, he used the vehicle to support himself. In response to a question from Corcoran, defendant stated that he had had a few beers. Based on these observations, Corcoran directed defendant to submit to field sobriety tests, including the one legged stand. Corcoran testified that defendant was unable to stand on one leg for more than one or two seconds; he was also unable to walk in a straight line or in a heel-to-toe manner.
Defendant was arrested at the scene and transported to police headquarters. While at headquarters, Corcoran read defendant the standard drinking/driving questionnaire. During this exchange, defendant indicated that he had his first beer at 7:00 P.M. and his last one at 9:30 P.M. He could not recall, however, the number of beers he had consumed, and he indicated that he had not eaten during this time period. Corcoran also apprised defendant of his rights under Miranda,*fn1 and read to him the breathalyzer consent form. Defendant agreed to submit to the breathalyzer tests.
Corcoran, a certified breathalyzer operator since March 14, 2003, conducted the two tests performed on defendant. He testified, in detail, about his training and experience, and described the procedural steps he took to prepare and administer the tests. The first test was conducted at 11:14 P.M. and yielded a reading of .14% blood alcohol content (BAC); the second test, conducted at 11:24 P.M., also yielded a .14% BAC.
Against these facts, defendant now appeals from the order of the Law Division raising the following arguments.
RE-SENTENCING DEFENDANT AFTER HIS ORIGINAL SENTENCE WAS NEARLY COMPLETE VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION AND IS CONTRARY TO FUNDAMENTAL FAIRNESS.
THE STATE FAILED TO PROVE THAT THE BREATHALYZER WAS PROPERLY ADMINISTERED AND THEREFORE SAME SHOULD HAVE BEEN FOUND INADMISSIBLE AT TRIAL.
A. NO PROOF WAS PRESENTED THAT THE AMPOULE USED IN THE SECOND TEST ADMINISTERED TO DEFENDANT WAS FROM THE SAME LOT AS THE REFERENCE AMPOULE AND THE FIRST TEST AMPOULE.
B. NO PROOF WAS PRESENTED THAT THE BREATHALYZER ADMINISTRATOR OBSERVED DEFENDANT FOR AT LEAST TWENTY MINUTES BEFORE ADMINISTERING THE TESTS TO INSURE THE ABSENCE OF "MOUTH ALCOHOL."
POLICE HAD INSUFFICIENT PROBABLE CAUSE TO ARREST DEFENDANT FOR DWI.
THE STATE FAILED TO PROVE ITS CASE AGAINST DEFENDANT BEYOND A REASONABLE DOUBT.
THE PLEA TO THE PRIOR OFFENSE WAS NOT MADE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AND, THEREFORE, CANNOT BE USED TO ENHANCE THE PENALTIES IN THE INSTANT MATTER.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that the trial court had the legal authority to resentence defendant. Defendant's argument that this sentence was illegal because he had begun (and perhaps was coming to the end of) serving his original illegal sentence is unavailing. Furthermore, defendant's reliance on State v. Laird, 25 N.J. 298 (1957) is misplaced, because the holding expressed therein is no longer legally viable.
In State v. Baker, 270 N.J. Super. 55 (App. Div.), aff'd o.b., 138 N.J. 89 (1994), we specifically rejected the Laird holding as inconsistent with modern sentencing and constitutional principles. The Supreme Court thereafter confirmed this conclusion in State v. Murray, 162 N.J. 240, 247 (2000) by stating that "[r]egardless of whether a sentence is illegal because it exceeds the statutory maximum penalty authorized for such an offense or because it was not imposed in accordance with law, it may be corrected at any time before it is completed."
With respect to the evidence presented at trial, the testimony of the arresting officers established that there was probable cause for the initial motor vehicle stop. The record shows that the breathalyzer machine was operable and the test was conducted properly. Defendant's BAC reading of .14% on both tests ends any further inquiry.