On appeal from the Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. 11-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges Sabatino and Chambers.
Defendant Francis Osei-Afriyie, pro se, appeals the Law Division's order dated November 17, 2008. The order in question sustained the municipal court's rejection of defendant's application to withdraw his plea of guilty of refusing to submit to a breath test, N.J.S.A. 39:4-50.2, and to vacate his associated conviction and sentence for that offense. We affirm.
The pertinent chronology is as follows. On the evening of May 28, 2007, defendant was involved in a motor vehicle accident on the New Jersey side of the Delaware Memorial Bridge. Perceiving that defendant might have been driving under the influence of alcohol, a State trooper administered field sobriety tests. When defendant failed to perform the field tests to the trooper's satisfaction, defendant was placed under arrest and brought to the State Police barracks in Moorestown.
Once at the barracks, defendant was administered a breath test on the Alcotest device. For a proper reading to be attained, the tested driver must blow at least 1.5 liters of breath into the device for 4.5 seconds. Defendant only produced 0.9 liters for 2.9 seconds and 1.0 liters for 3.0 seconds on his two attempts to blow into the machine. After the second failed attempt, the operator ceased the testing process, perceiving that defendant was purposely refusing to blow sufficient air into the device.
Defendant was charged with refusal to submit to a breath test, in violation of N.J.S.A. 39:4-50.2. He was also issued four additional summonses for driving while intoxicated, N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; driving with an open beverage container, N.J.S.A. 39:4-51b; and following another vehicle too closely; N.J.S.A. 39:4-89. The charges were referred to the municipal court of Carney's Point.
On September 11, 2007, defendant appeared with counsel in the municipal court and entered a guilty plea to the refusal offense. At the same time, the prosecutor dismissed the four other pending charges. Defendant's guilty plea was conditioned on his ability to seek to reopen the matter and withdraw his guilty plea, depending upon the New Jersey Supreme Court's then-anticipated opinion in State v. Chun, 194 N.J. 54 (2008), addressing the validity of the Alcotest device. The municipal judge confirmed with defendant on the record that "based on what happens in the Chun case... there may be something in that opinion from the Supreme Court that would allow your lawyer to come back and argue that you may not have been able to give a full [breath] sample and that that should be considered by [this] [c]court[.]" Defendant acknowledged that he understood that limited condition, affecting the entry of his plea, specifically hinged upon the Chun decision.
During the course of the plea colloquy, defendant provided the following factual basis for a refusal violation:
THE COURT: Mr. Osei-Afriyie, how do you plead to a refusal to take a breath test on May 28th, '07?
THE COURT: And is that plea voluntary, sir?
THE DEFENDANT: Yes, please.
THE COURT: Is anybody forcing you to plead guilty?
THE DEFENDANT: No, no, no.
THE COURT: And you understand that this is going to be stayed in order to get a decision from the New Jersey ...