March 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHARONE M. SABBACH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-23-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 8, 2011
Before Judges Graves and Waugh.
Defendant Sharone M. Sabbach appeals his conviction for driving while intoxicated in violation of N.J.S.A. 39:4-50. The appeal focuses on the issue of whether the State must prove, as part of its case on a per se violation, that the two breathalyzer readings were taken within fifteen minutes of each other. Sabbach contends that such proof is required by the Supreme Court's decision in State v. Downie, 117 N.J. 450, 460 (1990), cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (1990). We disagree and consequently affirm the conviction.
Sabbach was issued a summons for the DWI on November 7, 2008.*fn1 The municipal court judge deferred Sabbach's motion to exclude the breathalyzer results to trial. The trial took place on three days between April and August 2009. The police officer who administered the breathalyzer testified that he performed each of the two tests according to the prescribed checklist. However, he did not testify to the interval between the two tests, both of which showed a blood alcohol level of .10 percent.
Despite Sabbach's argument that the State was required to establish that the interval between the two tests did not exceed fifteen minutes, the municipal judge convicted him of driving with a blood alcohol level of .10 percent. Because the judge had concluded that the video of Sabbach's field sobriety test did not demonstrate intoxication, the conviction was based solely on the breathalyzer readings. Sabbach was sentenced as a second offender.
Sabbach appealed the conviction to the Law Division. On the trial de novo, he was again convicted on the basis of the breathalyzer readings, and was again sentenced as a second offender. The Law Division judge concluded that, because the readings were identical, the State did not have to prove that the time between them did not exceed fifteen minutes. This appeal followed.
On appeal, Sabbach raises the following issue:
POINT I. TESTIMONY AS TO PURPORTED RESULTS OF BREATH TESTING LACKED FOUNDATION AND SHOULD BE STRICKEN.
We have considered this argument in light of the record and applicable legal standards, and find it to be without merit.
In Downie, after remanding four consolidated cases to the trial court for development of a more extensive record and for factual findings, the Supreme Court determined that its "review of the record on remand [wa]s in conformity with the conclusions of fact determined by the trial court." Id. at 463. Based upon the remand records the Court held "that the breathalyzer [wa]s a reliable and indispensable tool for law-enforcement purposes." Ibid.
Sabbach focuses specifically upon the sixth conclusion of fact in Downie, which reads as follows:
6. The breathalyzer does not overestimate alcohol in the blood at the .10% level to the detriment of the accused. That is clearly so in the post-peak stage. In the pre-peak stage the breathalyzer reading is more accurate in predicting the amount of alcohol affecting the brain than is a venous blood sample and it cannot be empirically demonstrated that it is in error, so long as two breath readings are taken within fifteen minutes of each other, do not differ by more than .01%, and the lower of the two is used for proof purposes. [Id. at 455 (emphasis added).]
The essence of Sabbach's argument is that, having stated its agreement with a specific proposition, the Court was implicitly accepting the converse of the proposition to be true. In other words, if the results of all breathalyzer tests administered within fifteen minutes of each other in the "pre-peak stage" are presumptively reliable, only the product of tests administered no more than fifteen minutes apart are reliable.
We find no support for that argument in the Downie opinion. At no point did the Court mandate that breathalyzer tests must be administered within fifteen minutes of each other. And, at no point did the Court conclude that tests administered more than fifteen minutes apart yield inherently unreliable results, or perhaps more accurately, results that overestimate a defendant's blood alcohol content.
Instead, the Court listed a series of factors, all of which insure that the breathalyzer will "render many more results on the low side than on the high side." Id. at 460. One such consideration was that "law-enforcement officials will count only the lower of two breathalyzer results, obtained fifteen minutes apart." Ibid. Sabbach can point to no case in the nearly two decades since Downie was decided that supports his argument regarding an interval of fifteen minutes or less as a foundation requirement for the admission of breathalyzer results. We have not found any in our independent research. We do not read State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), as requiring a different result.
Because the two readings were identical, there was no reason for the operator to conclude that there was a malfunction, one of the reasons for requiring two tests. Romano v. Kimmelman, 96 N.J. 66, 86 (1984); State v. White, 253 N.J. Super. 490, 498 (Law Div. 1991). The operator, who the municipal judge found to be credible, testified that he went through the checklist step-by-step, performing the second test after he finished the first. Consequently, although the record is silent on the actual interval between the tests, there is nothing in the record to suggest that there was an inordinate delay between the two tests.