On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal, Docket No. 4773.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2009
Before Judges Carchman, Lihotz and Ashrafi.
On February 6, 2008, defendant, David Rivera, was arrested for driving while intoxicated (DWI), N.J.S.A. 39:4-50.
Defendant had submitted to a breath test, which was administered using the Alcotest 7110 MK III-C system with Firmware Version 3.11 software (Alcotest). The Supreme Court has concluded the Alcotest is "generally scientifically reliable" and, with the implementation of specified modifications, a properly performed test provides blood alcohol concentration (BAC) readings admissible to support a per se violation of N.J.S.A. 39:4-50. State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008); see also State v. Mustaro, __ N.J. Super. __ (App. Div. 2009) (slip op. at 4-5).
The Alcotest is an embedded system, which utilizes two separate methods of measurement on each provided breath sample: electric chemical oxidation sensing (EC) and infrared sensing (IR). Chun, supra, 194 N.J. at 78. A test subject provides two breath samples, resulting in four separate BAC measurements. Ibid. The IR and EC readings are reported on a printed Alcohol Influence Report (AIR). Id. at 79.
After defendant's first attempted breath sample was rejected for insufficient breath volume, the next test recorded an EC of .109 and an IR of .107. A third test recorded an EC of .117 and an IR of .114. Following the municipal court's denial of his motion to exclude the Alcotest results as invalid, defendant entered a conditional guilty plea. The municipal court sentenced defendant, a first-time offender, for a per se violation, suspended his driving privileges for seven months, required him to spend twelve hours at the Intoxicated Driver's Resource Center, and imposed a $300 fine, $33 in court costs, a $50 Victims of Crime Compensation Board assessment, a $200 DWI surcharge, and a $75 Safe Neighborhood Fund penalty. The municipal court judge stayed execution of that sentence pending appeal. After de novo review, the Law Division denied defendant's motion to suppress the Alcotest results and again convicted defendant of DWI, imposing the same sentence, which was stayed pending our review.
In his appeal defendant relies upon an interpretation of Chun, asserting:
THE LOWER COURT'S ALLOWANCE OF A FOUR DECIMAL PLACE AVERAGING METHODOLOGY IN COMPLETING WORKSHEET A IN RIVERA'S CASE IS CONTRARY TO THE REMEDIAL PURPOSES OF WORKSHEET A AS SET FORTH IN STATE V. CHUN.
THE RULE OF LENITY SUPPORTS RIVERA'S METHOD OF CALCULATING WORKSHEET A AND IS NOT LIMITED ...