On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Nugent.
Following the denial of his motion for an evidentiary hearing on the admissibility of the Alcotest, defendant Bobby Johnson entered a conditional guilty plea in Municipal Court to the charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge sentenced defendant to a seven-month revocation of his driving privileges, twelve hours at an Intoxicated Driver Resource Center, and imposed appropriate fines and penalties. On de novo review, the Law Division ruled that the Alcotest results were admissible. We affirm.
On February 5, 2010, after defendant was involved in a motor vehicle accident, Montclair police officers transported him to the police station and administered two breath tests using the Alcotest 7110 MK III-C (Alcotest). The results, reported on a printed Alcohol Influence Report (AIR), disclosed defendant's blood alcohol concentration (BAC) was 0.13%. The AIR also indicated that the duration of defendant's first breath was 9.6 seconds and his second breath was 17.3 seconds.
Defendant wrote to the municipal court judge and requested a hearing pursuant to N.J.R.E. 104 "where I can present my prima facie proofs that there is a problem with the sensor." He also requested "that an engineer from the manufacturer be produced or that I be permitted to exam[ine] the machine."*fn1 Defendant explained that in the year before he was tested, no arrestee "was able to blow for 17 seconds" and the average duration for eighty-eight results was 8.47 seconds. He submitted the report of a certified pulmonary expert who had tested his pulmonary function and concluded it was "essentially normal with an exhalation time of 6 seconds." Based upon defendant's normal pulmonary function, the expert concluded the Alcotest results "could not be valid."
Defendant twice supplemented his request for a hearing, citing several instances in other municipalities where Alcotest AIR breath duration readings were greater than twenty seconds, and arguing that the readings demonstrated a systemic problem with the device. Defendant requested that an engineer be produced to explain how the machine "records the lapse of time"; and that the engineer "produce records proving that the machine used to test the defendant had accurate time sensors."
The municipal court judge denied defendant's application for a hearing and ruled that under our Supreme Court's decision in State v. Chun, 194 N.J. 54, cert. denied, U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), "the Alcotest machine that was used in this case is, on its face, presumed to be valid and accurate[,] [a]nd as long as the other foundational documents are submitted in evidence the reading would be admitted." Following that ruling, defendant entered a conditional plea. On de novo review, the Law Division concluded the Alcotest results were admissible and entered an order on July 27, 2010, that the "Alcotest results be admitted into evidence against the defendant." Defendant appeals from that order.
On appeal, defendant raises the following points:
THE COURT ERRED IN RULING THAT THE CHUN DECISION BARRED NEW CHALLENGES TO THE SCIENTIFIC RELIABILITY OF THE ALCOTEST MACHINE.
THE COURT ERRED IN RULING THAT THE DEFENDANT FAILED TO MAKE A THRESHOLD SHOWING UNDER N.J.R.E. 104 ...