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State of New Jersey v. David J. Hernandez

March 8, 2011


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 8-07-CT-22.

Per curiam.


Submitted January 3, 2011 - Decided Before Judges Sabatino and Alvarez.

Defendant David J. Hernandez appeals a judgment of conviction dated January 21, 2009, finding him guilty of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, based upon an excessive blood-alcohol level shown by the Alcotest. The judgment was entered following an evidentiary hearing conducted by the Law Division on remand, pursuant to our October 2008 unpublished opinion addressing defendant's original appeal to this court. State v. Hernandez, No. A-0756-07 (App. Div. Oct. 28, 2008). The purpose of the remand was to develop more facts and background relevant to defendant's claim that a letter from the State Police, which confirmed the active status of the Alcotest operator's credentials at the time the breath sample was tested, had been improperly admitted into evidence at defendant's trial. For the reasons that follow, we concur with the Law Division's determination that the letter was properly admitted, and consequently affirm the judgment.

We incorporate by reference the facts and procedural history set forth in our prior opinion. By way of brief summary, on October 20, 2006, defendant's motor vehicle was stopped by a South Bound Brook police officer, upon suspicion that defendant was driving under the influence. He was taken to the police station for testing on the Alcotest MK III-C device. After administering warnings*fn1 to defendant, the Alcotest operator, Lieutenant John Prudente, administered the breath test. Defendant's breath produced a reading of .17 blood alcohol concentration ("BAC"), well above the legal limits. See N.J.S.A. 39:4-50(a).

Prior to trial in the municipal court, defendant moved to suppress the BAC results. One of his requested grounds for suppression was that the discovery supplied by the prosecutor did not confirm that Prudente had proper credentials to administer the Alcotest. See N.J.A.C. 13:51-1.6(c) and N.J.A.C. 13:51-1.8. In particular, defendant alleged that Prudente lacked the requisite recertification on the Breathalyzer device when he became certified as an Alcotest operator on November 14, 2005.

In response, the prosecutor tendered to the municipal judge a one-page letter from the State Police dated January 24, 2007, with respect to Prudente's credentials. The letter, a copy of which was not provided on the first appeal but which has now been supplied to us, appears on official State Police letterhead. It contains the seal of the State of New Jersey and the respective emblems of the State Police and the New Jersey Department of Law and Public Safety. It bears the heading "MASTER BREATH TEST CERTIFICATION RECORD." Below that heading is Prudente's name and the date of the letter. The letter then reads:


05/02/2003 01/17/2001 09/07/1999 05/27/1997 02/23/1995

The letter concludes with a notation that Prudente's certification on the Breathalyzer device expired on January 1, 2006. This signified that Prudente was certified as a Breathalyzer operator when he took the Alcotest training and received his Alcotest certification in November 2005. At the bottom of the letter is the signature (either an actual signature or a computer-generated one) of Lieutenant Dean A. Rinaldi of the State Police's Alcohol/Drug Testing Unit.

Defendant objected to the consideration of the State Police letter, on grounds of hearsay and lack of confrontation. After the municipal judge overruled those objections and denied defendant's motion to suppress the Alcotest results, defendant entered into a conditional plea of guilty to a violation of N.J.S.A. 39:4-50, subject to his right to appeal the denial of his suppression motion. The municipal judge suspended defendant's driving privileges for two years, and imposed other appropriate conditions and penalties. The penalties were stayed, pending the Supreme Court's then-anticipated opinion as to the scientific validity of the Alcotest in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The Law Division upheld the conviction and the sanctions, de novo, in its initial decision in September 2007. On appeal, we rejected defendant's arguments concerning the pre-test warning, but remanded for further proceedings concerning the genesis and admissibility of the letter.

The sole witness at the remand hearing, Sergeant Kevin Flanagan of the State Police Alcohol and Drug Test Unit, explained the genesis and significance of the letter. Flanagan noted that in 2004 the State Police began a statewide process of training and converting Breathalyzer operators to Alcotest operators. The conversion involved an abbreviated one-day Alcotest certification course for operators that were currently certified on the Breathalyzer.

Flanagan explained that an officer's Master Breath Test Certification Record, such as the January 24, 2007 letter at issue, is routinely generated by the State Police from a centralized computer database. The letter is created by entering the police officer's operator number, and then requesting a corresponding printout of the operator's master certification. Flanagan testified that the information concerning each operator's certifications is kept in the database in the ordinary course of business. The letters are typically generated as part of an administrative procedure when the operator's own copy of his credentials has been lost, damaged or destroyed. Flanagan noted that he had personally printed out approximately fifty to a hundred of such master certification letters in the course of his duties in the Alcohol/Drug Testing Unit.

In the present case, Prudente had no longer retained his Breathalyzer certificate at the time of defendant's trial, as by that point South Bound Brook had converted to the Alcotest device. Consequently, the January 24, 2007 letter provided confirmation from the State Police database that Prudente's Breathalyzer ...

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