On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 33-08-C-T13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Payne and C.L. Miniman.
Defendant Barbara Doyle appeals from her conviction of refusing to submit to a breath test, contrary to N.J.S.A. 39:4-50.2, and the sentence imposed of a seven-month suspension of defendant's driver's license and twelve hours attendance at the Intoxicated Driver Resource Center (IDRC). We now affirm in all respects.
On October 31, 2006, defendant was observed driving her vehicle erratically at approximately 12:20 a.m. Officers Christopher Kennedy and Michael McMahon of the Hillsborough Police Department responded to a report of the erratic driving and, after stopping defendant's vehicle, administered five field sobriety tests. Based on the tests, McMahon determined defendant was driving while intoxicated, placed her under arrest, and brought her to police headquarters. Defendant was issued a citation for driving while intoxicated.
Upon arriving at police headquarters, defendant, after being read an eleven-paragraph statement by McMahon, assented to a breath test on the Alcotest(r) 7110 MKIII-C device. The Alcotest(r) is a breath-testing device used to assist in determining the blood-alcohol concentration (BAC) of a person suspected of driving while intoxicated. State v. Chun, 194 N.J. 54, 64, 74-75, cert. denied, U.S. , 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008). The readings generated by the device from the breath samples taken are reported on the Alcohol Influence Report (AIR) during administration of the test by a certified Alcotest(r) operator. Id. at 79. The Alcotest(r), however, is not operator-dependent; it performs its analysis according to a sequence through a computerized program that gives visual prompts to the operator. Ibid.
Prior to administration of the test, the operator must wait twenty minutes to avoid inflated readings attributable to the effects of mouth alcohol. Ibid. During those twenty minutes, the Alcotest(r) prohibits testing and the operator must observe the individual to ensure no alcohol has entered the person's mouth. Ibid. Afterwards, the testing process begins with the operator typing identifying information into the machine. Id. at 80. The machine then starts and automatically samples the room air to check for the presence of chemical interferents (the blank air test). Ibid. Assuming there are none, the machine conducts a control test. Ibid. If the control test is valid, which it was in this case, a second blank air test is performed and then the operator may administer the test. Ibid.
The device first prompts the operator to collect a breath sample. Ibid. The operator then attaches a mouthpiece, removes electronic devices from the testing area, and reads this instruction to the test subject: "I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?" Id. at 80-81. The test subject then provides a breath sample. Id. at 81. After a proper breath sample is taken, the Alcotest(r) notifies the operator via an LED display, performs a third blank air test to purge the first sample, and locks out for a two-minute period in which it prohibits another test. Ibid. After the two-minute lock-out period, a second sample is taken. Ibid. If either sample is outside the minimum requirements for a valid sample, additional tests up to a maximum of eleven may be administered until two valid samples are obtained. Ibid.
The Alcotest(r) gives the operator three minutes to conduct each test. Ibid. If the three minutes expire without a sample, the device allows the operator to terminate the test, report a refusal, or perform an additional test. Ibid. If all eleven tests fail to produce two valid samples, the device permits the operator only to terminate the test or report a refusal. Ibid.
An acceptable, valid sample is one that meets four minimum criteria: "(1) minimum volume of 1.5 liters; (2) minimum blowing time of 4.5 seconds; (3) minimum flow rate of 2.5 liters per minute; and (4) that the [infrared] measurement reading achieves a plateau (i.e., the breath alcohol does not differ by more than one percent in 0.25 seconds)." Id. at 97. If any of the four criteria is not met, the device will return an error message, report how much air was submitted on the AIR, and make no calculations. Id. at 82-83. If two results are acceptable, the AIR calculates BAC values for the two samples and a report is generated. Id. at 83.
A breath sample that falls short of the required 1.5-liter volume requirement is unacceptable and the Alcotest(r) will return an error message of "minimum volume not achieved." Id. at 99. The Alcotest(r) will return other messages in the event of an invalid sample, such as "blowing not allowed," which indicates a test where the subject blows, stops, and blows again. Special Master's Findings & Conclusions Submitted to the Supreme Court 136 (Feb. 13, 2007) ("Master's Findings"), adopted as modified by Chun, supra, 194 N.J. at 149. If two valid samples are not obtained, the operator has the option of terminating the test and issuing a summons for refusing to submit to a breath test pursuant to N.J.S.A. 39:4-50.2. Chun, supra, 194 N.J. at 99. However, "[c]harging an arrestee with refusal remains largely within the officer's discretion." Ibid.
Prior to administering each test, McMahon advised defendant that "she would have to take a deep breath and blow into the mouthpiece with one long continuous breath in order for the test to [be] properly administered." In starting the first test, McMahon testified defendant took a small breath, blew slowly into the machine, stopped, and appeared to attempt to inhale and start again. Defendant blew 1.9 liters in 8.4 seconds but the machine returned a message of "Blowing Not ...