May 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BOBBY JOHNSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2011
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 REQUIRING A FULL PRELIMINARY HEARING.
ADMITTING ALCOTEST RESULTS WITHOUT PROOF THAT THE ALCOTEST IS CAPABLE OF ACCURATELY RECORDING THE MINIMUM CRITERIA NEEDED FOR AN ACCURATE TEST RESULT VIOLATES PROCEDURAL DUE PROCESS.
Generally, our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). However, because the Law Division's decision involves an interpretation of Chun, "our scope of review is de novo, without affording any special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts." State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010).
The Alcotest has been held to be "generally scientifically reliable," and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. The device "is not operator-dependent, but performs its analysis in accordance with a sequence through a computerized program that gives visual prompts to the operator." Id. at 79. "In the event that the administration of the test result[s] in errors because of, for example, insufficient breath volume or duration, the AIR will report those errors and will not attempt to calculate the BAC from an inadequate sample." Id. at 82.
As a precondition for admissibility of the Alcotest results, Chun requires the State to establish that: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 134. To establish that the Alcotest was in proper working order when an arrestee's breath samples were taken, the State must enter into evidence three foundational documents (the trial documents):
(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
(2) the most recent New Standard Solution Report prior to a defendant's test; and
(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control test. [Id. at 154.]
Chun also directed that an opportunity for cross-examination of the operator of the Alcotest be provided by making the operator available to testify, and that the State produce in discovery "all of the foundational documents that might reveal some possible flaw in the operation of the particular device...." Id. at 148. The documents to be produced during discovery (the discovery documents) include:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operator's credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more relevant NJ Calibration Records (including both Parts I and II are offered)); (6) Calibration Check (including both control tests and linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis 0.10 Percent Solution (used in Calibration-Control); (8) Certificate of Analysis 0.04, 0.08, and 0.16 Percent Solution (used in Calibration-Linearity); (9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, 0.08, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability. [Id. at 134-35, 153.]
"[O]nce the State has introduced the [trial documents] into evidence and produced the [discovery documents] ... the burden of production shifts to the defendant to show why the machine was not in working order . . . ." State v. Holland, N.J. Super. , (App. Div. 2011) (slip op. at 20). "[I]n the event that any defendant perceives of an irregularity in any of [the trial or discovery] documents that might affect the proper operation of the device in question, timely issuance of a subpoena will suffice for purposes of protecting that defendant's rights." Chun, supra, 194 N.J. at 144 n.47.
Defendant did not challenge any of the trial and discovery documents. His attorney represented to the municipal court judge:
I don't have a problem marking the foundational documents, even as part of the defense case. I mean, we're not opposed to any of the findings contained in the documents. I would like to attach all of this as part of the record to indicate in its position of the defense that these - -all these documents - - all these the foundational documents, even if moved in, none of them address the issue raised by the defense. And that is, again, the accuracy of the machine as far as its ability to determine the liter volume. If you put them all together it doesn't do it.
Because defendant did not dispute the accuracy of the trial and discovery documents, the burden of production shifted to him to show why the machine was not in working order. It was incumbent upon defendant, not the State, to subpoena witnesses necessary to sustain his burden of production.
There is no evidence in the record to suggest that defendant's pulmonary expert had even a fundamental working knowledge of the operation of the Alcotest. The expert's conclusion that the Alcotest results "could not be valid," based on defendant's pulmonary function tests and an AIR breath duration measurement of 17.3 seconds, was speculative. The expert made no attempt to correlate his findings with any specific machine malfunction. In view of defendant's concession that the foundational trial and discovery documents contained no irregularities, and in view of his expert's failure to correlate defendant's pulmonary function tests with any specific flaw in the administration or operation of the Alcotest, we conclude defendant did not satisfy his burden of production to show why the machine was not in working order.