On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-15-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 21, 2011
Before Judges Cuff and Lihotz.
Defendant Salvatore Macaro appealed his municipal court conviction for driving while intoxicated, N.J.S.A. 39:4-50, to the Law Division. The appeal focused on whether the municipal police officer followed the accepted protocol for administration of the Alcotest. Judge Stephen Holden found that the officer observed defendant for the required twenty-minute period before administration of the breath test and found defendant guilty of driving while intoxicated.
On appeal, defendant raises the following arguments:
THE COURT ERRED BY ADMITTING THE ALCOTEST READINGS OF DEFENDANT AS THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT WAS OBSERVED FOR A TWENTY MINUTE INTERVAL BEFORE HE SUBMITTED TO THE ALCOTEST.
POINT II THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY LIMITED DEFENDANT'S RIGHT TO CROSS EXAMINE OFFICER SMITH BY RULING THAT STATE'S PROOFS ON ANOTHER PROSECUTION INVOLVING AN IDENTICAL ISSUE AND SAME OFFICER WERE NOT RELEVANT.
On May 4, 2009, defendant was arrested and charged with driving while intoxicated in violation of N.J.S.A. 39:4-50; careless driving in violation of N.J.S.A. 39:4-97; and driving an unregistered vehicle in violation of N.J.S.A. 39:3-4. At the police station, police administered the Alcotest and obtained a Blood Alcohol Content result of .10, a per se violation of N.J.S.A. 39:4-50. The sole contested issue is whether Officer Smith observed defendant for twenty minutes before administration of the Alcotest.
Smith testified that the arresting officer transported defendant to the police station. They arrived at approximately 9:14 p.m. Smith testified that his shift commenced at 9:00 p.m. that evening, and he did not leave the police station at the start of his shift because he had been informed of the arrest and expected defendant to arrive shortly. On his arrival, Smith observed the arresting officer place defendant in the holding cell. Sitting at the patrol desk, Smith heard the arresting officer read the standard breath test statement to defendant and defendant respond that he would take the test. At that time, Smith started the twenty-minute observation of defendant. From the patrol desk, Smith looked directly into the holding cell. Smith admitted he received a personal call during the twenty-minute observation period, but stated that he did not leave the patrol desk.
Defendant testified Smith was not at the station when he arrived, and Smith left the patrol desk when he received the personal phone call. Defendant also testified that the arresting officer did not leave the station, and he spoke with the arresting officer between ten and thirty minutes before administration of the Alcotest.
During the cross-examination of Smith, defense counsel sought to undermine Smith's credibility with reports from the February 2009 arrest of defendant for driving while intoxicated. In the earlier case, the arresting officer reported that he brought defendant to the police station and "turned over" defendant to Smith. In preparation for trial of the earlier charge, defense counsel obtained documents that disclosed Smith was not in the police station at the time; therefore, Smith could not have observed defendant or administered the breath test as related in the report of the arresting officer. As a result, the charges against defendant were dismissed. Over the objection of the municipal prosecutor, the municipal court judge permitted defense counsel to ask some questions about the prior case. Smith testified he had little knowledge of the February 2009 case. He noted that he was not the officer who ...