On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 38-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012 -
Before Judges Messano and Kennedy.
Defendant Daniel J. Schreck appeals from a judgment of the Law Division finding him guilty of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50(a). Defendant was arrested by New Jersey State Police on August 28, 2008, for DWI, reckless driving, contrary to N.J.S.A. 39:4-96, and speeding, contrary to N.J.S.A. 39:4-98. Defendant was initially tried over several non-consecutive days between February 19, 2010 and September 16, 2010, in the Stafford Township Municipal Court. On October 22, 2010, the municipal court judge found the defendant guilty of DWI based upon the Alcotest readings and the "observational prong" of the DWI statute.*fn1 On February 25, 2011, defendant's de novo appeal was heard in the Law Division and on February 28, 2011, the trial judge found defendant guilty of DWI on the basis of both the Alcotest reading and the observational prong of the statute.
Defendant presents the following arguments on appeal:
THE APPLICABLE STANDARD OF REVIEW IS WHETHER THE LAW DIVISION RULING WAS BASED UPON SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD. THE SO-CALLED "TWO-COURT RULE" SHOULD NOT APPLY TO THIS CASE.
THE LAW DIVISION ERRED IN FAILING TO EXCLUDE THE BREATH TEST RESULT USED IN THE PER SE D.W.I. CONVICTION OF DEFENDANT. BECAUSE THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT WAS CONTINUOUSLY OBSERVED FOR TWENTY MINUTES BEFORE ADMINISTRATION OF THE TEST. MOREOVER, THE LAW DIVISION ALSO ERRED IN FAILING TO APPLY THE CORRECT LEGAL STANDARD TO ITS FACTUAL FINDINGS ON THE ISSUE.
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW PUSUANT TO THE FOURTEENTH AMENDMENT AND ART. 1, PAR. 1 OF THE NEW JERSEY [CONSTITUTION] WAS VIOLATED BY THE "SPOILATION" OF EVIDENCE CAUSED BY THE PURPOSEFUL PLACEMENT OF DEFENDANT SO AS TO OBSTRUCT THE VIDEO CAMERA'S VIEW OF DEFENDANT'S FIELD SOBRIETY TESTS. THUS, ANY EVIDENCE DERIVED FROM SUCH TESTS SHOULD BE EXCLUDED.
A. The police conduct of blocking the video of defendant's field sobriety tests without justification constitutes prima facie or sufficient evidence of "bad faith" requiring exclusion of the field sobriety evidence as a due process violation.
B. If "bad faith" is not found, this court should nevertheless find a due process spoliation of evidence violation based on the State Constitution and fundamental fairness to defendant as expressed in the Arizona v. Youngblood ...