July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW HIEBSCH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 13A-2008-K84.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Graves and Waugh.
Following a trial de novo in the Law Division, defendant Matthew Hiebsch appeals from an order dated June 8, 2009, finding him guilty of driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. Because this was defendant's third DWI violation, the municipal court judge sentenced defendant to serve a 180-day jail term and to forfeit his driving privileges for ten years. The judge also imposed the statutorily mandated penalties, fees, and assessments. On appeal, the Law Division imposed the same sentence. The period of incarceration was stayed pending appeal to this court. For the reasons that follow, we affirm.
On February 17, 2007, defendant was arrested while driving on Route 78 in Whitehouse Station. A breath test was administered using an Alcotest MKIII-C (Alcotest) machine, and the Alcohol Influence Report (AIR) indicated that defendant's blood alcohol content was 0.18%. Defendant was charged with DWI and other motor vehicle offenses that are not relevant to this appeal. See N.J.S.A. 39:4-50 (stating that a DWI violation may be based on a defendant's blood alcohol content of .08% or more).
On March 23, 2007, defense counsel sent a written discovery request to the North Hunterdon Municipal Prosecutor for information including "[a]ll certificates of accuracy and reports of calibration" regarding the Alcotest machine. The prosecutor complied and, at a January 10, 2008 status conference, defense counsel informed the court: "I've got all the discovery [and] as far as I'm concerned [the matter] is ready to go one way or another and that's where we stand on this. I have all of the video tapes, I have everything." The court then asked counsel if it was "going to be a trial or a motion," and he replied: "I have to talk to him more, once more. I think this will probably be a plea."
One week later, on January 17, 2008, defendant appeared with his attorney in the North Hunterdon Municipal Court, and defendant pled guilty to DWI. At that time, a case challenging the reliability of the Alcotest was pending before the Court.*fn1
As a result, the Court had issued an order allowing "a defendant who challenges the use of the Alcotest-related evidence [to] enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court result in a determination that the Alcotest devices are not reliable" (the January 10, 2006 order). In accordance with this order, defendant entered a conditional guilty plea "based solely on the breath reading from the [Alcotest]."
When defendant entered his plea, his attorney advised the court that defendant was "specifically reserving" on the pending motions, which he identified as follows: "The jury trial motion and to bar the [Alcotest] reading under the 6th Amendment" based on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The municipal court judge accepted defendant's guilty plea and stayed defendant's jail sentence "pending Chun."
Chun was decided two months later, on March 17, 2008. The Court held that "the Alcotest . . . [was] generally scientifically reliable, but that certain modifications [were] required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the [DWI] statute." Chun, supra, 194 N.J. at 65. To implement the necessary modifications, a detailed order accompanied the Court's decision (the Chun order). Notably, the Chun order required the State, "[f]or all pending prosecutions," to "prepare and produce a calculation, in a form consistent with Worksheet A attached hereto, that ensures that the [breath] samples meet the acceptable range of tolerance." (Paragraph 1(A)(1)(a)). Id. at 150. Moreover, the State was also required to "forthwith" "[c]reate and maintain a centralized statewide database, comprised of downloaded Alcotest results" and to "make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel". (Paragraph 3(B)). Id. at 153.
Defense counsel interpreted Paragraph 3(B) as a retroactive requirement and requested, by written letter to the prosecutor on April 28, 2008, the "[d]ownloaded results from this particular [A]lcotest." A formal motion requesting the same information was made by defense counsel on September 17, 2008, but subsequently denied.
On October 23, 2008, the municipal court held a Chun remanded hearing. There, defense counsel acknowledged that the State had re-evaluated the Alcotest results pursuant to Paragraph 1(A)(1)(a):
THE COURT: . . . I see I have
[W]orksheet A that's been completed by [the prosecutor]. Have you had a chance to look at that?
[DEFENSE COUNSEL]: Yes Judge.
THE COURT: Just for the record the breath samples were re-evaluated in the context of the revised confidence interval established by the [Chun order] and that reevaluation gives us a truncated reading of .18.
Could [defense counsel] counter-sign that . . .?
[DEFENSE COUNSEL]: Sure.
Accordingly, the municipal court confirmed defendant's conviction and sentence for a third violation, but stayed the period of incarceration pending an appeal to the Law Division.
The Law Division conducted a de novo review on June 8, 2009. The judge found that the Alcotest had been properly reevaluated under Paragraph 1(A)(1)(a), and he was "satisfied that under Chun the information that was required was, in fact, provided to the defendant." Specifically, the judge rejected defendant's argument that he was entitled to retroactive discovery:
Defendant's argument with regard to all of the documents that were requested [post-Chun], which he is arguing today were not granted, were, in fact, not granted. . . . However, my interpretation and understanding . . . is that under the Chun case, that the documents that the defendant is now seeking involve future prosecutions and not pending prosecutions.
The Law Division stayed the term of incarceration pending appeal.
On appeal to this court, defendant raises the following points:
DEFENDANT IS ENTITLED TO ALL EXCULPATORY EVIDENCE; THE DATA DOWNLOADS, THE RAW DATA, AND [ALL] OTHER INFORMATION ABOUT THE SIMULATOR SOLUTIONS AND THE ALCOTEST.
THE MOTION TO BAR THE INTRODUCTION OF THE FOUNDATIONAL DOCUMENTS UNLESS THE AUTHOR TESTIFIES MUST BE GRANTED.
DEFENDANT IS ENTITLED TO A JURY TRIAL.
At the outset, we note that when defendant entered his plea on January 17, 2008, he did not claim that he was entitled to additional discovery and did not preserve that issue for appeal. Thus, defendant waived his right to claim that he is entitled to additional discovery information, or to appeal from any adverse discovery determinations. R. 7:6-2(c); see also State v. Szemple, 332 N.J. Super. 322, 328-29 (App. Div.) (stating that defendant waived his right of self-representation because he "pled guilty without preserving the issue under the conditional plea rule"), certif. denied, 165 N.J. 604 (2000). Nevertheless, we have considered defendant's arguments and find they have no merit.
"[B]ecause the Law Division's judgment rested entirely on its interpretation of the Court's opinion in 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) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Paragraph 1(A) of the Chun order explicitly delineated the State's responsibilities for "all pending prosecutions, including all prosecutions in which imposition of sentence ha[d] been stayed by our January 10, 2006 Order." Id. at 150. One of those requirements, listed in Paragraph 1(A)(1)(a), required the State to "ensure" the Alcotest results met an "acceptable range of tolerance." Ibid.
However, the Court did not apply the mandates in the subsequent two paragraphs, Paragraphs 2 and 3, to "all pending prosecutions":
2. ORDERED that the State shall arrange forthwith with [the Alcotest's manufacturer] for revisions to the New Jersey Firmware utilized in Alcotest . . . as needed to accomplish the directives set forth in the Court's opinion regarding the admissibility into evidence of results of Alcotest breath testing . . . .
3. ORDERED that the State shall forthwith:
A. Commence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program;
B. Create and maintain a centralized statewide database, comprised of downloaded Alcotest results, and shall make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel; . . . .
[Id. at 151-53 (emphasis added).]
In State v. Pollock, 407 N.J. Super. 100, 106 (App. Div. 2009), we rejected the defendant's argument that the semiannualrecalibration requirement in Paragraph 3(A) was intended by the Court to apply retroactively. We noted that "the Court would have articulated such a prohibition explicitly had that been its intention." Id. at 107.
Furthermore, we determined there was sufficient textual support in the opinion and order for a prospective application of Paragraph 3(A):
Paragraph 2 and 3, in contrast, set forth a number of actions to be taken by the State "forthwith" in order to implement the Court's directions for the future, including changes to the firmware and new discovery requirements. In Paragraph 3.A, the Court required the State to "forthwith" "[c]ommence inspection and recalibration of all Alcotest devices every six months in place of the current annual inspection and recalibration program." The use of "commence" in the order is consistent with the Court's language in the body of the opinion that it could "discern no reason to permit the State to continue to adhere to its program of annual recalibration." [Id. at 107 (first emphasis added) (internal citations omitted).]
Although Paragraph 3(B) does not include the word "[c]ommence," there nonetheless is "language in the body of the opinion" that additionally supports a prospective application.
For example, Paragraph 2, which generally concerns revision of the Alcotest's firmware, was discussed in relevant part as follows:
As to each of these [firmware] recommendations, there is sufficient evidence in the record . . . [that] future firmware revisions might be of some assistance to future defendants. Notwithstanding our agreement that these proposed alterations, to which the State has acceded, might be beneficial, we discern no basis in the record that suggests that any previously-generated report that lacks these additional details is therefore insufficient as a matter of proof of a per se violation.
Rather, we agree . . . that updating the firmware to provide this information in addition to that which it already provides would merely be beneficial. [Chun, supra, 194 N.J. at 90 (emphasis added).]
Notably, in the following paragraph, the Court stated that Paragraph 3(B) should be "[s]imilarly" implemented. Therefore, it logically follows that the centralized database in Paragraph 3(B) was also intended to be utilized by future defendants. Consequently, we find no textual support in the Chun order or opinion to support defendant's argument that Paragraph 3(B) was intended to have retroactive effect.
Defendant's remaining arguments are clearly without merit and do not warrant extended discussion, Rule 2:11-3(e)(1)(E). See Chun, supra, 194 N.J. at 144 (stating that documents that "demonstrate that a device, which was used to conduct the breath tests for a particular defendant, was in good working order" do not implicate the Confrontation Clause); State v. Stanton, 176 N.J. 75, 87 (stating that "there is no right to trial by jury on DWI and other Title 39 charges"), cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003).
Affirmed. The stay of defendant's jail term entered by the Law Division on June 8, 2009, is hereby dissolved.