On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4842.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010 - Decided Before Judges Lisa and Reisner.
Defendant, Dow Pruitt, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated, N.J.S.A. 39:4-50(a). Defendant was sentenced as a third offender to a $1000 fine, $33 court costs, $50 VCCB penalty, $200 DWI surcharge, $75 Safe Neighborhood Fund Assessment, ten-year driver's license suspension, and 180 days imprisonment in the county jail, or, alternatively, 90 days in the county jail followed by 90 days of inpatient alcohol treatment. Defendant's sentence was memorialized by the October 29, 2009 order of the Law Division.
Defendant presents the following arguments on appeal:
POINT I THE DEFENDANT SHOULD HAVE BEEN FOUND NOT GUILTY AS THE ONLY EVIDENCE OFFERED AS TO HIS GUILT FOR DWI WAS UNRELIABLE.
POINT II THE STATE FAILED TO OFFER ANY TESTIMONY TO REBUT THE TESTIMONY OF DEFENSE EXPERT RICHARD SAFERSTEIN, Ph.D., AS SUCH THE COURT SHOULD HAVE RELIED ON DR. SAFERSTEIN'S TESTIMONY.
POINT III THE STATE FAILED TO OFFER PROOF THAT THE TREATMENT THE DEFENDANT RECEIVED (WIPED DOWN WITH ALCOHOL) DID NOT FALSELY ELEVATE HIS BLOOD TEST.
We reject these arguments and affirm.
On December 7, 2008, while operating a motorcycle in Hawthorne, defendant collided with an automobile. Defendant sustained injuries in the accident, and was transported to a local hospital. Hawthorne Patrolman George Cole responded to the scene and interacted at close quarters with defendant as he was placed in the ambulance. Cole detected a strong odor of alcoholic beverage emanating from defendant's breath. He therefore followed the ambulance to the hospital for the purpose of obtaining a blood sample.
At the hospital, Cole presented a sealed police blood collection kit to emergency room technician Michael Mazzei. Mazzei unsealed the kit. Using the apparatus and swab contained in the kit, Mazzei drew a blood sample from defendant. He first sterilized the area from which the sample was drawn with the iodine swab included in the kit. The sample was drawn in Cole's presence. Mazzei handed the collected sample to Cole, who returned it to the station house. The sample was analyzed by the State Police Laboratory and yielded a .138% blood alcohol concentration (BAC). While at the hospital, defendant admitted to Cole that he had consumed alcoholic beverages shortly before the accident.
The State presented the testimony of Cole, Mazzei, and a detective who provided chain of custody evidence. Defendant and his wife testified. Defendant admitted to having consumed alcoholic beverages shortly before the accident. He and his wife claimed he sustained head injuries and lost a significant amount of blood before Mazzei drew the blood sample. Defendant also contended that before the blood sample was drawn medical personnel wiped him down with alcohol in treating his injuries.
Defendant presented the testimony of Dr. Richard Saferstein, an expert in forensic toxicology. Saferstein testified that from the time an individual ingests alcohol, it takes approximately sixty minutes for the alcohol to pass through the stomach into the bloodstream. If, during that sixty minute interval, the individual lost a significant amount of blood, a blood sample would yield a falsely elevated BAC. Saferstein therefore opined that in the circumstances of this case defendant's BAC constituted a scientifically unreliable result.
Saferstein acknowledged that he could not quantify the amount of blood defendant lost. He had not reviewed the hospital records, nor had he interviewed any doctors, hospital personnel or emergency responders. Saferstein could not state an amount of blood loss that would qualify as "significant." Saferstein had never ...