On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 030-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Graves, J. N. Harris, and Newman.
Defendant Douglas Hanna appeals from an order of the Law Division finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to attend the Intoxicated Driver's Resource Center for twelve hours, and his driver's license was suspended for seven months. In addition, he was required to pay a total monetary sanction of $664: a $306 fine, $33 for court costs, a $200 DWI surcharge, a $50 VCCB assessment, and a $75 SNSF penalty.
Defendant entered a conditional guilty plea to a per se violation of N.J.S.A. 39:4-50, which was based upon the administration of the Alcotest 7110 MKIII-C system (Alcotest) following his arrest and its subsequent reading of 0.18% blood alcohol concentration (BAC). The Supreme Court has concluded that the Alcotest is generally scientifically reliable and, with the implementation of specified modifications, a properly administered Alcotest provides BAC readings admissible in court to support a per se violation of N.J.S.A. 39:4-50. State v. Chun, 194 N.J. 54, 65, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008); see also State v. Mustaro, 411 N.J. Super. 91, 96 (App. Div. 2009).
Defendant argues that the trial court erred in denying his motion to exclude the Alcohol Influence Report (AIR) because the Alcotest used to analyze his breath samples had not been calibrated during the prior six months as required by Chun. Defendant further argues that the court also erred in denying his motion to vacate his conviction because he was entitled to discovery of downloaded Alcotest results from either a centralized database or from the local municipality, and because the officer allegedly did not continuously observe him for twenty minutes before administering the test as required. Finally, he claims that he was deprived of the right to fully confront the State's only witness during cross-examination. Because we find none of defendant's arguments persuasive, and we are in substantial agreement with the written opinion of Judge Robert Neustadter dated April 27, 2009, we affirm.
On November 21, 2007, at approximately 1:45 p.m., Egg Harbor Township Police Sergeant Marc A. Romantino arrested defendant for DWI.*fn1 While en route to police headquarters, defendant told Romantino that he felt like he was having a heart attack. Romantino arranged to have defendant transported by ambulance to the Atlantic City Medical Center, Mainland Division.
Defendant arrived at the hospital at 2:02 p.m. Romantino immediately met defendant in the emergency room and remained constantly in his presence until defendant was released at 3:49 p.m. Romantino testified that defendant did not burp, belch, or ingest anything during that entire time.
Before leaving the hospital, Romantino handcuffed defendant's hands behind his back. He then escorted defendant to the patrol car and helped him get into the rear seat, positioning him on the driver's side. The rear passenger section of the patrol car was separated from the front by a clear partition attached to a steel roll bar. There was a small sliding window in the center of the divider to facilitate communication. According to Romantino, defendant was "under my constant care and observation from the time we left the hospital to the time we arrived at my patrol vehicle."
On the trip to police headquarters, defendant, who Romantino described as "being a gentleman at the time," engaged in a "general, nice conversation" about defendant's ability to drive prior to being placed into custody, the Alcotest device, the procedure about to take place at police headquarters, and about defendant's residence in Florida. Romantino said he could hear defendant clearly, and did not detect defendant belch, burp, regurgitate, or vomit. Romantino did, however, notice that defendant, who had put his face "in that little plexiglass window area . . . as far as he could - as far as he could lean," had what "smelled like two-day old raw Jack Daniels alcohol bad breath." Later, Romantino explained that he did not want to "get pinned down" and described the odor as "[i]t's just bad breath.
It was bad. It was nasty." While driving, Romantino occasionally looked back at defendant and glanced at him through the rear view mirror.
Upon arrival at police headquarters at 4:04 p.m., Romantino assisted defendant in exiting the patrol car and ultimately escorted him into a DWI processing area located in the main building. At 4:12 p.m., Romantino, who was a certified Alcotest operator, administered the breath test using the device. He obtained two breath samples from defendant, the first at 4:12 p.m., and the second at 4:15 p.m. As previously noted, the Alcotest determined defendant's BAC to be 0.18%. Romantino said that just prior to the test, defendant did ...