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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...