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State v. Kirk

October 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT F. KIRK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 28-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2009

Before Judges Axelrad, Fisher and Espinosa.

In this appeal we consider whether the Court's directives in State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), regarding the timing of inspection and calibration of Alcotest devices, should be applied retroactively. We reject that contention by adhering to our recent decision in State v. Pollock, 407 N.J. Super. 100 (App. Div. 2009), and affirm.

The record reveals that, on September 9, 2007, defendant was arrested in Lacey Township and charged with driving while intoxicated, N.J.S.A. 39:4-50, and other motor vehicle offenses.

On January 15, 2008, pursuant to an agreement with the State, and in accordance with the Supreme Court's initial order in State v. Chun, supra, 194 N.J. at 67-68, defendant entered a conditional guilty plea to driving while intoxicated with the reservation of the right to appeal if the Supreme Court later determined Alcotest to be unreliable. The State agreed to dismiss the other motor vehicle charges. The municipal judge found a factual basis for defendant's guilty plea from evidence of a 0.16 Alcotest reading, derived through the use of a device that had not been calibrated during the seven months prior to defendant's arrest. The judge imposed a fine of $306, court costs of $33, and other monetary assessments; the judge also ordered a seven-month revocation of defendant's driving privileges and defendant's attendance for twelve hours at an Intoxicated Driver Resource Center. Sentence was stayed pending the Court's decision in Chun.

Chun was decided on March 17, 2008. Defendant filed a motion questioning how Chun should apply in this case. He argued that relief from the guilty plea was warranted because the Alcotest was performed on a device that had not been calibrated for seven months whereas the Supreme Court held that calibration should occur every six months, Chun, supra, 194 N.J. at 153. In short, defendant argued that Chun's holding should be applied retroactively to his case.

The municipal judge rejected defendant's contention, as did the Law Division judge in ruling on defendant's de novo appeal.

Defendant appeals the judgment of conviction entered in the Law Division, raising the following arguments for our consideration:

I. CONDITIONAL PLEAS AND STAYS: THE SUPREME COURT CREATED A PROTECTED CLASS OF DEFENDANTS WITH ITS DECEMBER 10, 2006, ORDER IMPLEMENTING CONDITIONAL PLEAS AS AN INTERIM PROCEDURE BALANCING THE INTERESTS OF DEFENDANTS, THE STATE, AND THE MUNICIPAL COURTS.

II. RETROACTIVE APPLICATION: WITH ITS DECISION IN STATE V. CHUN, THE SUPREME COURT FOR THE FIRST TIME EXPRESSED A RULE OF LAW INTENDED TO PROTECT ALL DEFENDANTS WHOSE CASES WERE PENDING WITH STATE V. CHUN.

III. PROTECTING A DEFENDANT'S RIGHTS: THE SUPREME COURT'S PRINCIPAL AIM -- TO PROTECT DEFENDANT'S RIGHTS IN THE WAKE OF THE IMPLEMENTATION OF NOVEL SCIENTIFIC ALCOTEST EVIDENCE -- WARRANTS RETROACTIVE APPLICATION OF ITS DIRECTIVES, EXCEPT WHERE IT EXPRESSLY DIRECTED PROSPECTIVE APPLICATION.

IV. RETROACTIVE APPLICATION REVISITED: THE COURT'S ROLE, THE STATE'S INCOMPETENCE, AND EQUAL PROTECTION WARRANT RETROACTIVE APPLICATION OF THE ...


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