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State v. Reinertsen

July 20, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIMBERLY REINERTSEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-03-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2010

Before Judges Messano and LeWinn.

Defendant Kimberly Reinertsen was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), in the Saddle Brook Municipal Court; on appeal to the Law Division de novo, she was again convicted. The Law Division judge imposed the same sentence as the municipal court judge -- a suspension of defendant's driver's license for two years; suspension of the vehicle's registration for two years; a fine of $757; thirty days of community service; two days at an Intoxicated Driver Resource Center; and other appropriate financial penalties.*fn1 On appeal, defendant raises the following issues for our consideration:

POINT I: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S DENIAL OF REINERTSEN'S MOTION TO SUPPRESS

A. THE STATE FAILED TO PROVE THE "PRESENT INTENT" ELEMENT AS TO FUTURE OPERATION

B. THE STATE FAILED TO PROVE THAT REINERTSEN OPERATED HER VEHICLE WHILE INTOXICATED BEFORE THE VEHICLE ARRIVED AT ITS PARKED LOCATION

C. THE STATE FAILED TO MEET ITS FOUNDATIONAL PROOFS TO ADMIT THE BREATHALYZER READINGS

POINT II: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S DECISION TO PERMIT THE STATE TO INTRODUCE THE BREATHALYZER RESULTS

A. THE BREATH TESTING RESULTS AGAINST REINERTSEN SHOULD HAVE BEEN SUPPRESSED DUE TO THE STATE'S FAILURE TO FOLLOW THE OFFICIAL INSTRUCTIONS FOR THE BREATH TESTING INSTRUMENT

B. THE BREATH TEST RESULTS USED BY THE STATE ARE SCIENTIFICALLY UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED BY THE TRIAL COURT

POINT III: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S FINDING THAT REINERTSEN WAS GUILTY OF DRIVING WHILE INTOXICATED

A. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REASONABLE SUSPICION, LET ALONE PROBABLE CAUSE, EXISTED TO MAKE A MOTOR VEHICLE STOP

B. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REINERTSEN WAS GUILTY OF DRIVING WHILE INTOXICATED

C. GOMEZ'S TESTIMONY WAS WILDLY INCONSISTENT AND THE APPELLATE COURT ERRED IN FINDING THAT PROBABLE CAUSE EXISTED TO JUSTIFY THE ARREST

POINT IV: THE CANADIAN DOCUMENTS WERE NOT PROPERLY AUTHENTICATED AND, AS SUCH, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE

POINT V: THE BREATHALYZER RESULTS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AS THE AMPOOLES [sic] UTILIZED WERE NOT INTENDED FOR USE IN THE DRAEGER MODEL 900 AND ARE NOT ACCURATE

We have considered these arguments in light of the record and applicable legal ...


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