May 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ESHRI JAIRAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 17-7-C-T-24.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges Reisner and Sapp-Peterson.
Defendant, Eshri Jairam, appeals from his conviction after a trial in the municipal court, and in the Law Division, following a trial de novo on the record, for driving while under the influence. N.J.S.A. 39:4-50. Defendant claims (1) that the breathalyzer operator failed to follow appropriate procedures before administering the breathalyzer test, (2) the State failed to prove the accuracy of the breathalyzer readings by clear and convincing evidence, and (3) his conviction was against the weight of the evidence. We reject each of these contentions and affirm.
The evidence presented before the municipal court and before the Law Division, de novo, was as follows. On October 21, 2005, defendant was stopped at a red traffic light on Rock Avenue at its intersection with Route 22 in North Plainfield. Before the light turned green, defendant proceeded through the light. North Plainfield Police Officer Richard Dow was stopped behind defendant's vehicle. After witnessing defendant proceed through the red light, he activated his overhead lights and stopped defendant's vehicle approximately 100 yards away from the intersection.
Once defendant's vehicle was stopped, Officer Dow approached and asked defendant to produce his credentials. When defendant handed his credentials to the officer, his hand shook. Officer Dow told defendant that he had witnessed him drive "across the red light and crossed [sic] 22." Defendant responded that he thought the light had turned green. In response to Officer Dow's inquiry from where he had been traveling, defendant stated that he was coming from Charlie Brown's, a restaurant. Defendant also admitted to having had a couple of beers. During this colloquy with defendant, Officer Dow detected an odor of alcohol emanating from defendant's mouth.
At Officer Dow's request, defendant exited his vehicle and attempted to perform a number of field sobriety tests that Officer Dow requested. The officer testified that defendant was unable to satisfactorily perform the tests and that he was of the opinion that defendant "was not able to drive the vehicle, and [he] placed [defendant under] arrest for driving while intoxicated." Defendant was then taken to police headquarters where he received Miranda*fn1 warnings and a certified breathalyzer officer administered a breathalyzer test. The test results reported two readings of .14 breath alcohol content (BAC). Defendant was issued summonses charging him with DWI. He was also charged with failure to observe a traffic control device. N.J.S.A. 39:4-81.
At trial, defendant presented three expert witnesses. Dr. Gary Lage, a toxicologist, testified that defendant, who is a mechanic, had been exposed to volatile chemical compounds in brake cleaning fluids and fuel injector cleaner while working thirteen to fifteen hours on the day of his arrest. He identified the volatile compounds in the fluids as isopropyl alcohol, naphtha, methanol, and acetone. He opined that as a result of defendant's exposure to these volatile chemicals for hours prior to his arrest, the breathalyzer, which he opined is an indirect measurement of blood alcohol content and which is unable to distinguish the various chemicals, gave a false reading.
Dr. Clark Miller, an expert in podiatry and podiatric surgery, testified that he performed a visual and computerized gait analysis of defendant and determined that defendant suffered from flat-footedness, a one-quarter inch right shoulder drop, and a short Achilles tendon. In his opinion, defendant, without any alcohol consumption and under optimum conditions, would be unable to perform standardized field sobriety tests.
Finally, Herbert Leckie, a former New Jersey State Trooper and expert in field sobriety examination, testified that Officer Dow failed to conduct the field sobriety testing in accordance with the National Highway Traffic Safety Administration guidelines. Specifically, based upon Officer Dow's testimony, Leckie testified that defendant was not placed in the proper starting position for the one-leg-stand test, but rather in the heel-to-toe position with his arms down, which is the stance for the walk-and-turn test. He explained that in doing so, defendant was placed in an unbalanced position that affected his ability to perform the one-leg-stand test.
Additionally, Leckie testified that defendant was never told to look down at the raised foot, which Leckie believed makes the test easier because the defendant would not have been "distracted by either movements of other motor vehicles passing by, movements of the police officer, [or] the overhead lights flashing." Leckie opined that the last deficiency in the administration of the leg raising test occurred when Officer Dow "never informed the defendant to keep his arms down at his sides." He explained that because one of the scoring factors for the test involves consideration of whether a driver raises his arms more than six inches above the waist during the test, unless told not to do so, "defendant would not know that he is not allowed to raise his arms away from his sides during the administration of this test."
With respect to the walk-and-turn test, Leckie testified defendant started the test with his feet next to one another rather than heel-to-toe, was not told to look down as he performed the exercise, which would have minimized any distractions, and was not advised to keep his arms at his sides.
Leckie reiterated that defendant would not have known that raising his arms would be scored against him for purposes of evaluating his performance on this test. Leckie also testified that the degree of reliability of the one-leg-stand test and the walk-and-turn test would be affected by any medical condition that impacted defendant's balance.
Finally, Leckie testified that the breathalyzer test results were unreliable. He explained that because defendant had not been subjected to the requisite twenty-minute observation period prior to administering the breathalyzer test, the test results could not be treated as reliable.
At the conclusion of the testimony, Municipal Court Judge Richard M. Sasso found that the breathalyzer test was properly administered and that Officer Dow's observations of defendant both before and after his vehicle was stopped convinced the court, beyond a reasonable doubt, that defendant operated his motor vehicle while under the influence both by test results and observation. The court also found defendant guilty of disregarding the red traffic signal. Fines, costs and penalties were imposed, as well as a loss of his driving privileges for two years, the required installation of an ignition interlock device for one year, and forty-eight hours of Intoxicated Drivers Resource Center participation.
Defendant appealed his conviction and sentence to the Law Division where the court conducted a trial de novo on the record. Following oral argument, Judge Edward M. Coleman found defendant guilty of both charges and sentenced defendant, imposing the same fines, penalties, costs, and conditions imposed by the municipal court judge. The present appeal followed.
Defendant raises the following points for our consideration.
THE COURT ERRED IN ADMITTING THE BREATHALYZER READINGS INTO EVIDENCE BECAUSE THE BREATHALYZER OPERATOR FAILED TO OBSERVE THE DEFENDANT FOR 20 MINUTES PRIOR TO THE BREATH TEST.
THE COURT ERRED IN CONSIDERING THE BREATHALYZER READINGS BECAUSE THE STATE FAILED TO PROVE THEIR ACCURACY BY CLEAR AND CONVINCING EVIDENCE.
THE CONVICTION OF THE DEFENDANT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT.
Our standard of review on an appeal from a trial de novo in the Law Division is to determine whether there is "'sufficient credible evidence'" in the record to support the findings by the Law Division judge. State v. Locurto, 157 N.J. 463, 470-71 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
Defendant contends the court erred in admitting the BAC test results because the breathalyzer operator failed to observe him for twenty minutes before administering the test. Judge Coleman, in rejecting this argument, reasoned:
. . . It's clear from [the] officer's testimony that the 20 minutes had passed when the defendant was in the station under observation before he was placed on the breathalyzer. It is listed here, [assistant prosecutor]'s report. Downey [sic] does not stand for the proposition that the breathalyzer operator must make the sole observation of defendant, nor does it stand for the proposition that the defendant not belch. Rather, it speaks to the ingestion of alcohol. Defendant, once stopped, did not ingest any further alcohol that night.
Thus, defendant's argument with regard to burping is without merit.
We agree with the Law Division judge's reasoning. In State v. Downie, 117 N.J. 450, cert. denied, 498 U.S. 819, 111 S.Ct. 63, 112 L.Ed. 2d 38 (1990), the trial court made seven findings of fact, one of which included, "for the breathalyzer to give readings that can be used with confidence, the operator must be sure that at least twenty minutes have expired since the last ingestion of alcohol to avoid the presence of 'mouth' alcohol, which can give a falsely high reading." Id. at 455-56. The Court agreed with that finding. Id. at 457. Its later discussion of the twenty-minute observation period was in the context of ensuring that there was no further ingestion of alcohol within a reasonable period of time in advance of the test being administered in order to avoid compromising the test results with the presence of mouth alcohol rather than from the breath. Id. at 466. Here, there is no indication that during the time period between the stop of defendant on Rock Avenue at approximately 1:50 a.m. and the administration of the BAC test more than thirty minutes later, defendant ingested any alcohol, other substances or burped. We therefore find no legal basis to disturb the trial court's findings and the legal conclusions flowing from those findings. Locurto, supra, 157 N.J. at 471.
Defendant's remaining points that the State failed to prove the accuracy of the BAC test with clear and convincing evidence and that his conviction was against the weight of evidence are without sufficient merit to warrant lengthy discussion in a written opinion. R. 2:11-3(e)(2). We add the following comment related to defendant's claim that his exposure to workplace chemicals resulted in a false BAC reading.
In State v. Carey, 263 N.J. Super. 377 (App. Div.), certif. denied, 134 N.J. 475 (1993), the defendant raised a similar defense to the BAC test results. We stated:
State v. Hammond, 118 N.J. 306 (1990), clearly indicates that involuntary intoxication is not a defense to a charge of driving while under the influence. Indeed, it has long been the law in this State that contributing factors of medication or physical or nervous condition which render a defendant more susceptible to alcohol or narcotics are not a defense if the alcohol or narcotics cause or contributed to the impairment of faculties. State v. Glynn, 20 N.J. Super. 20 (App. Div. 1952). See also
State v. Tamburro, 68 N.J. 414 (1975) (use of methadone in a treatment program would not constitute a defense where intoxication resulted)[.] [Id. at 380-81.]
Moreover, even if involuntary exposure to volatile chemicals could be advanced as a defense, the requisite evidence to proffer such a defense was not demonstrated. Defendant's expert conducted no tests of the workplace, had never visited the workplace, and could not quantify the amount of volatile chemicals present in the area where defendant worked. Nor did he provide any testimony relative to the ventilation system at defendant's workplace.
To summarize, Judge Coleman's factual findings and legal conclusions are well supported by substantial, credible evidence in the record. We discern no basis to intervene.