On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 54-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
In 2006, defendant entered a conditional plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, subject to the outcome of State v. Chun, 194 N.J. 54, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008). Once Chun was decided, defendant attacked the sufficiency of her plea in the Medford Township Municipal Court. Following an evidentiary hearing, the municipal judge determined that the twenty-minute observation period discussed in Chun had, in fact, taken place.*fn1 Judge Harold B. Wells, III, reached the same conclusion in ruling on defendant's appeal to the Law Division, and, in reviewing that decision, we agree and affirm.
Specifically, the record reveals that after Chun was decided, the State moved to vacate the stay of defendant's sentence. The proceedings then, according to Judge Wells, "quickly, and, apparently without the benefit of any prior defense motion, morphed into a challenge of defendant's underlying conviction of DUI entered in the same [c]court on May 10, 2006." Despite these procedural deficiencies, the municipal judge considered, on the merits, defendant's two factual contentions regarding the sufficiency of her guilty plea: (1) there was an alleged discrepancy in the alcohol incident report and (2) the evidence allegedly failed to support a finding that the pre-test, twenty-minute observation period occurred.
The municipal judge rejected defendant's first argument; defendant did not raise that issue in the Law Division and has not raised it here. As for the second, defendant claimed that, upon being arrested on February 28, 2006, she was transported by police vehicle and arrived at the police station at 10:12 p.m. Because the Alcotest was performed at 10:20 p.m., defendant claimed the twenty-minute requirement had not been met. The municipal judge found, however, that the arresting officer, who also was the Alcotest operator, first came in contact with defendant at 9:41 p.m., and that he remained with her from the time of the arrest, during the drive to the station, while at the station and throughout the test itself -- a total period of more than thirty minutes. As a result, the judge found Chun's requirements were met and refused to vacate the guilty plea.
Defendant appealed to the Law Division, arguing only that the evidence did not support a finding that the twenty-minute observation period had occurred because the officer, as he conceded during cross-examination, did not constantly have defendant in his view from the time of her arrest until the conducting of the Alcotest.
Judge Wells first considered the impact of Chun on an arrest that occurred two years earlier. He concluded that defendant's factual contention "was as available as a line of attack on test readings in 2006 at it is now." Because defendant did not reserve this argument for future consideration when entering her guilty plea, Judge Wells determined that she could not raise it once Chun was decided, holding:
[O]bservance of the 20 minute period was not among the three narrow exceptions to the reliability of the Alcotest machine; that scientifically it is no more important with the Alcotest than it was with the breathalyzer[;] that absent a very clear record to the contrary it was not [an implicit] condition of the plea[;] and that the only basis for vacating an otherwise valid plea in Chun cases, on which the defendant bears the burden, must rest on the usual and well recognized grounds for doing so.
He further found that none of the three well-recognized grounds applied here. Notwithstanding that determination, and notwithstanding defendant's failure to properly place these matters in issue in the municipal court, Judge Wells also concluded, in deferring to the municipal judge's credibility findings, that the twenty-minute observation period was met.
We affirm substantially for the reasons set forth in Judge Wells's thorough and well-reasoned opinion.