December 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ROBERT DONFIELD, DEFENDANT-RESPONDENT.
On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-25-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2011
Before Judges Fuentes and Koblitz.
Defendant Robert Donfield (Donfield) was charged in Franklin Lakes on December 28, 2009, with driving while intoxicated, N.J.S.A. 39:4-50, as well as various other motor vehicle offenses. The municipal court judge granted defendant's motion to dismiss the Alcotest results because the State used a thermometer manufactured by Control Company rather than the Ertco-Hart thermometer approved in State v. Chun, 194 N.J. 54 (2008). After the State's appeal, on February 15, 2011, the Law Division also suppressed the Alcotest results on the same basis and stayed the proceedings. We granted the State's motion for leave to appeal on April 12, 2011.
The State raises only the following issue:*fn1
THE STATE HAS SATISFIED ITS BURDEN PURSUANT TO STATE V. CHUN BY PROVIDING DEFENDANT WITH THE APPLICABLE CONTROL COMPANY TEMPERATURE PROBE DOCUMENTATION.
Based on our recent decision in the consolidated cases of State v. Holland and State v. Pizzo, ____ N.J. Super. ____,
____ (App. Div. 2011) (slip op. at 10-15), which resolved the precise issue raised on appeal, we reverse.
Reversed and remanded for further proceedings. We do not retain jurisdiction.