On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Simonelli.
After a trial de novo in the Law Division, defendant Nicola Bevacqua appeals from his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). We affirm.
Defendant was charged with DWI based on the February 8, 2008 Alcotest Influence Report (AIR), indicating breath test readings of .18. The Alcotest machine had not been recalibrated since April 10, 2007, consistent with then-existing guidelines requiring annual recalibration.
At trial before municipal court, defendant moved to exclude the AIR on the grounds that the machine had not been recalibrated within the six-month period prior to the date of his test as required by State v. Chun, 194 N.J. 54, 153 (2008). Defendant argued that Chun's semiannual-recalibration requirement should be applied retroactively. The court concluded that Chun applied prospectively and denied the motion. Defendant then entered a conditional guilty plea to a per se violation of N.J.S.A. 39:4-50 based on readings from the AIR report. Because this was defendant's first DWI conviction, the judge suspended his driving privileges for seven months, and imposed the appropriate fines, penalty and surcharge, and directed defendant to attend twelve hours at the Intoxicated Drivers Resource Center.
On appeal to the Law Division, defendant again argued that Chun's semiannual-recalibration requirement should be applied retroactively. He also raised equal protection and due process arguments. Judge Manahan concluded that Chun applied prospectively. He convicted defendant of DWI, and imposed the same sentence imposed by the municipal court.
We reject defendant's contention on appeal that Chun's semiannual-recalibration requirement applies retroactively. The semiannual-recalibration requirement applies prospectively only. State v. Pollock, 407 N.J. Super. 100, 107 (App. Div. 2009). Because the Alcotest machine used in this case had been recalibrated in conformity with pre-Chun requirements, defendant's conviction is affirmed. Ibid.
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