On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant Frank Toffoloni appeals his conviction following a conditional guilty plea to driving under the influence of alcohol (DWI), in violation of N.J.S.A. 39:4-50. He contends that the Alcotest reading of his blood alcohol concentration should have been suppressed because the Alcotest machine had not been calibrated within six months of the testing, as required by State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008).
Defendant was arrested in Hanover Township on January 17, 2007, and charged with DWI and other traffic offenses. The Alcotest showed his blood alcohol concentration to be.12. The machine had last been calibrated in April 2006, approximately nine months before defendant's arrest, which was in compliance with the protocol requiring annual calibration established by the manufacturer of Alcotest machines.
On September 7, 2007, defendant pleaded guilty to a per se violation of DWI pursuant to an agreement with the State that execution of his sentence would be stayed pending the Supreme Court's anticipated decision in Chun regarding admissibility of Alcotest evidence. At defendant's plea hearing, there was no discussion of any other issue being the subject of the conditional guilty plea.
The Supreme Court issued its decision in Chun on March 17, 2008, holding that the Alcotest machine was reliable and its readings admissible provided that certain conditions were satisfied. Relevant to this appeal, the Supreme Court ordered that: "the State shall forthwith:... Commence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program." Id. at 153.
On September 26, 2008, defendant moved before the municipal court to withdraw his guilty plea on the ground that the Alcotest evidence in his case did not comply with the requirement for semi-annual calibration. The municipal court denied the application. On de novo review, the Law Division of the Superior Court also denied defendant's application to withdraw his guilty plea and to suppress the Alcotest results.
After defendant filed his notice of appeal to this court, we issued our decision in State v. Pollock, 407 N.J. Super. 100, 107 (App. Div. 2009), holding that the order in Chun for semi-annual calibration did not apply retroactively to bar Alcotest results obtained before the date of the Chun decision. We see no reason in this appeal to depart from the holding of Pollock. We reject defendant's contention that his Alcotest reading was not admissible because the machine had been calibrated some nine months earlier.
Defendant also argues that failing to apply the semi-annual calibration requirement retroactively denies him the equal protection of the laws. Defendant has not cited any cases that applied the equal protection clause of the Fourteenth Amendment, or the analogous State provision, article 1, paragraph 1, of the New Jersey Constitution, in the context of prospective application of a change in criminal or quasi-criminal law. Our courts routinely announce new rules of law that do not apply retroactively. See, e.g., State v. Purnell, 161 N.J. 44, 64 (1999); State v. Burstein, 85 N.J. 394, 410-11 (1981). See also Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 1780, 16 L.Ed. 2d 882, 891 (1966) (the protections against self-incrimination announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), would not apply retroactively). We find no merit in defendant's equal protection argument.
Finally, defendant argues that the State spoliated evidence by destroying the videotape of his arrest. We reject defendant's spoliation argument because: (1) defendant never requested the videotape in discovery before his guilty plea in September 2007, (2) he has not said how the videotape might affect his per se conviction, and (3) his conditional guilty plea did not include preservation of a claim based on alleged spoliation of evidence.