November 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS J. SCHOONMAKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2007-048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2009
Before Judges Grall and Messano.
Defendant Thomas J. Schoonmaker appeals from the denial of his motion to suppress and his subsequent judgment of conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. The salient facts and procedural history are not disputed.
On February 23, 2007, defendant was arrested by the Port Authority police at Newark Liberty International Airport. A breathalyzer test administered at 9:45 p.m. recorded a blood alcohol level (BAC) of.10. A second test was administered twenty minutes later, at 10:05 p.m.; the same reading was reported. Defendant was charged with DWI.*fn1
Defendant moved to suppress the results of the breathalyzer test in Newark municipal court.*fn2 That motion was denied. Defendant then entered a conditional guilty plea to the charge, Rule 7:6-2(c), and appealed to the Law Division.*fn3
In the Law Division, defendant argued that because the two breathalyzer tests were administered twenty minutes apart, the Supreme Court's holding in State v. Downie, 117 N.J. 450, cert. denied, 498 U.S. 819, 111 S.Ct. 63, 112 L.Ed. 2d 38 (1990), compelled the conclusion, as a matter of law, that the results were unreliable. In a brief written opinion, Judge Nancy Sivilli rejected defendant's argument, and denied his motion to suppress.
Before us, defendant asserts in a single point heading that Judge Sivilli erred in denying his motion. We have considered this argument in light of the record and applicable legal standards. We affirm.
In Downie, the Supreme Court considered "yet another challenge to the scientific reliability of breathalyzers...." Id. at 451. After remanding four consolidated cases to the trial court for development of a more extensive record and for factual findings, the Court determined that its "review of the record on remand [wa]s in conformity with the conclusions of fact determined by the trial court." Id. at 463. It concluded "that the breathalyzer [wa]s a reliable and indispensable tool for law-enforcement purposes." Ibid.
Defendant in this case focuses specifically upon one of those "conclusions of fact," i.e., finding number six which reads as follows:
6. The breathalyzer does not overestimate alcohol in the blood at the.10% level to the detriment of the accused. That is clearly so in the post-peak stage. In the pre-peak stage the breathalyzer reading is more accurate in predicting the amount of alcohol affecting the brain than is a venous blood sample and it cannot be empirically demonstrated that it is in error, so long as two breath readings are taken within fifteen minutes of each other, do not differ by more than.01%, and the lower of the two is used for proof purposes. [Id. at 455 (emphasis added).]
Defendant urges us to conclude that having stated its agreement with a specific proposition, the Court was implicitly accepting the converse of the proposition to be true. In other words, if the results of all breathalyzer tests administered within fifteen minutes of each other in the "pre-peak stage" are presumptively reliable, all reliable results must be the product of tests administered no more than fifteen minutes apart. Defendant contends that since the two readings in this case resulted from tests administered twenty minutes apart, the readings are inherently unreliable. We find the argument unpersuasive.
There is nothing in the Downie decision that supports defendant's extension of the Court's holding. Defendant argues that "the Downie Court clearly established a necessary protocol...." However, at no point did the Court mandate that breathalyzer tests must be administered within fifteen minutes of each other. And, at no point did the Court conclude that tests administered more than fifteen minutes apart yield inherently unreliable results, or perhaps more accurately, results that overestimate a defendant's BAC.
Instead, the Court listed a series of factors, all of which insure that the breathalyzer will "render many more results on the low side than on the high side." Id. at 460. One such consideration was that "law-enforcement officials will count only the lower of two breathalyzer results, obtained fifteen minutes apart[.]" Ibid. Defendant can point to no case in the nearly two decades since Downie was decided that supports his argument, and we have not found any in our independent research.
To the extent defendant now argues that Judge Sivilli failed to consider the reports of his two experts, both of whom generally commented on the twenty-minute gap between the two tests and concluded that the results were unreliable for various reasons, we note that defendant never produced either expert at the time the motion was heard. As we have already observed, for reasons that are not fully explained, defendant asked the municipal court judge to decide the motion solely on the legal issue presented, i.e., that results from breathalyzer tests administered more than fifteen minutes apart were scientifically unreliable.*fn4 He urged Judge Sivilli to reach the same conclusion, and he again urged us to do so during oral argument, acknowledging that this was the essential point of his appeal. In light of those circumstances and representations, we view any argument regarding defendant's experts' reports and their purported consequence to be of no merit. R. 2:11-3(e)(2).