On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. L-210-08.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Ashrafi.
Defendant Geoffrey A. Pollock appeals his conviction for a per se violation of N.J.S.A. 39:4-50, driving with a blood alcohol concentration of 0.08 percent or more. In this appeal, we are called upon to determine whether the semiannual- recalibration requirement for Alcotest machines, established by the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), is applicable to cases in which the test was administered prior to Chun and in compliance with the then existing annual- recalibration protocol. Because we determine that the change mandated by Chun was not intended to be applied to pending cases, we affirm Pollock's conviction.
Pollock was arrested on February 16, 2008, in Carney's Point. He was charged with driving while under the influence of alcohol, N.J.S.A. 39:4-50, and other offenses not relevant on this appeal. He was administered a breath test to determine his blood alcohol content using the Alcotest 7110 MKIII-C (Alcotest) machine. The resulting Alcohol Influence Report (AIR) determined that his blood alcohol content was 0.17 percent.*fn1
The Alcotest machine used for Pollock's test had been recalibrated approximately seven months earlier, which was consistent with the then existing protocol established by the State.*fn2
On March 17, 2008, the Supreme Court issued its decision in Chun, which generally upheld the reliability and admissibility of Alcotest results, subject to certain modifications and conditions. The Court included a requirement that the Alcotest machine be recalibrated semiannually, rather than annually. Chun, supra, 194 N.J. at 123.
Pollock then filed a motion in the Carney's Point Municipal Court, seeking to exclude his AIR report on the grounds that the machine had not been recalibrated within the six-month period prior to the date of his test as required by Chun. On April 25, 2008, the municipal court judge held a hearing pursuant to N.J.R.E. 104 and determined that the semiannual-recalibration requirement in Chun was not applicable to cases in which the test had been administered prior to Chun. After the judge denied his motion, Pollock entered a conditional guilty plea, R. 7:6-2(c), to a per se violation of N.J.S.A. 39:4-50, based on the 0.17 percent reading from the AIR report.
Pollock then appealed his conviction to the Law Division in Salem County, again arguing that Chun's semiannual-recalibration requirement was applicable retroactively. On June 13, 2008, Judge William L. Forester heard the matter de novo on the municipal court record. R. 3:23-8. Judge Forester delivered an oral decision on July 25, 2008, concluding that the new recalibration requirement was prospective only and convicting Pollock of violating N.J.S.A. 39:4-50. He signed the resulting order on August 1, 2008, but stayed the sentence and driver's license suspension until August 15, 2008.*fn3 This appeal followed.
On appeal, Pollock again contends that his AIR report was inadmissible because the Alcotest machine used to analyze his breath samples had not been recalibrated during the prior six months as required by Chun. In support of his position, he argues that retroactive application is required by Chun itself and also by the general principles used to ...