On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 32-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant Brian T. Millar appeals from an order of the Law Division denying his motion to withdraw his conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.
On December 11, 2005, defendant was driving to Plainsboro. His blood-alcohol concentration, as measured by an Alcotest instrument, was.16 percent. He was charged with DWI as well as six other motor vehicle offenses, including DWI in a school zone, N.J.S.A. 39:4-50(g). On March 29, 2006, defendant entered a guilty plea in municipal court to the DWI charge, conditioned upon the outcome of State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008),*fn1 which would determine the scientific reliability of the Alcotest machine. In exchange, the State agreed to dismiss the balance of the charges and to accept a non-guilty verdict on the school zone offense. Defendant was then sentenced, as a third DWI offender, to a driver's license suspension of ten years, forty-eight hours in the Intoxicated Drivers Resource Center for evaluation, 180 days in the county jail*fn2 and various fines, penalties and costs. With the exception of the latter, the sanctions were stayed pending the outcome of Chun.
On March 17, 2008, the Court decided Chun, supra, holding that the Alcotest machine was "generally scientifically reliable[.]" 194 N.J. at 65. Specifically, the Court ordered that:
For all pending prosecutions, including all prosecutions in which imposition of sentence has been stayed by our January 10, 2006 Order, and in all future prosecutions based on tests conducted prior to the implementation of our directives through creation of and implementation of revised firmware, Alcotest 7110 MKIII-C with New Jersey Firmware 3.11 is sufficiently scientifically reliable, and the Alcohol Influence Report (AIR) which sets forth the results of the breath tests is admissible as evidence of blood alcohol content (BAC).... [Id. at 150.]
For purposes here relevant, the Court, in describing the admission of a breath test, stated that an operator must wait twenty minutes from the time of arrest to obtain a breath sample, and for those minutes, the suspect must be observed to insure that he did not, for example, regurgitate and thus increase the level of mouth alcohol, which would taint the reading. Id. at 79.
This portion of the opinion formed the basis of defendant's subsequent application to withdraw his guilty plea. On April 23, 2008, after the Chun decision, defendant again appeared before the municipal court judge for sentencing, at which time he moved to vacate his guilty plea, arguing that his plea was conditioned upon the Alcotest's reliability, and its reliability, in turn, depended on the operator's correct administration of the test. The judge denied the motion and imposed the original sentence.
On appeal, based on its de novo review of the record, the Law Division also denied defendant's motion to withdraw his conditional guilty plea, reasoning:
Here, the defendant argues that Chun made the twenty minute observation period the foundation for the admissibility of any Alcotest instrument result. Further, the defendant argues that since there was no proof that the twenty minute rule was not enforced in this case, defendant should be permitted to withdraw his conditional guilty plea as that would, in his opinion, significantly undermine the reliability of the Alcotest results in his case. Additionally, defendant notes that since the State noted below its inability to proof [sic] defendant's guilt on an observation case, the strong reliance on defendant's Alcotest reading in proving his guilt strongly warrants allowing the defendant to withdraw the conditional guilty plea.
As noted above, the Supreme Court of New Jersey did not create the existence of the twenty minute rule in Chun. By all indications, the Supreme Court's goal in mentioning the rule was in the context of a broad discussion of the already-existing procedures employed in conducting a breath test analysis. The contextual analysis supports a conclusion that the Supreme Court was not seeking to write the twenty minute rule into the law; the rule is not mentioned in any of the provisions that were to apply to pending and future Alcotest prosecutions.
Even if the Supreme Court were giving such weight to the twenty minute rule, there is likewise no indication that the Supreme Court intended that as a basis for similarly situated defendants who entered conditional guilty pleas to retroactively attack the factual bases of those pleas. Additionally, the record indicates neither defendant nor counsel made any issue of a twenty minute rule violation at any time. Thus, it is the finding of this Court that the defendant's guilty plea was supported by a sufficient factual basis, and that the defendant is not now permitted to go back and attack that basis based on proofs that ...