On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hoffman.
Defendant Juan Rivas conditionally pled guilty to the charge of driving while intoxicated, N.J.S.A. 39:4-50, after his request for an N.J.R.E. 104 hearing was denied and three subpoenas duces tecum were quashed in the Irvington municipal court. As a first offender under N.J.S.A. 39:4-50(a)(1)(ii), Rivas was sentenced to participate for twelve hours in the Intoxicated Driver Resource Program and his driving privileges were suspended for seven months. He was also required to pay mandatory fines and penalties.
On appeal to the Law Division, Rivas argued that he was entitled to an evidentiary hearing, as well as the information sought in the subpoenas, as part of his defense that the State's breath testing by the Alcotest 7110 MK III-C (Alcotest) was unreliable and therefore inadmissible. After the Law Division ruled that an N.J.R.E. 104 hearing was unnecessary and the subpoenas need not be answered, it entered an order determining that "all fines and penalties [imposed in the municipal court] shall remain the same." Rivas appeals from that order, and we affirm.
We gather the facts from the plea allocution and the State's discovery materials provided in the municipal court proceedings. On October 16, 2010, Rivas was operating a motor vehicle on the Garden State Parkway in Irvington. Prior to that operation, Rivas had consumed five glasses of wine, which affected his ability to operate the motor vehicle.
Two breath tests administered by the State Police using the Alcotest produced readings of a blood alcohol concentration of 0.24%. The State's Alcohol Influence Report indicated that the duration of Rivas's first breath sample was 6.9 seconds and its volume was 3.7 liters; the duration of his second breath sample was 8.7 seconds and its volume was 3.6 liters.
Rivas sought to challenge the Alcotest's results on the basis that its scientific reliability was compromised due to the lack of evidence of calibration of its "pulmonary variables that it reports." To that end, Rivas issued three identical subpoenas duces tecum seeking the following:
Any and all evidence that Alcotest 7110 accurately records liter volume, blowing time, and flow rate. Any and all evidence identifying the technology that makes calibration for liter volume, blowing time, and flow rate unnecessary for an accurate BAC. Any and all evidence establishing that inspection and recalibration of the pressure and flow sensors are unnecessary for an accurate BAC.
Two of the subpoenas were directed to representatives of the New Jersey State Police: Dr. Howard Baum, Director of the Office of Forensic Science and Thomas Snyder, Coordinator. The third subpoena was served on a "Compliance Manager" for Draeger Safety Diagnostics, Inc. (Draeger)*fn1 in Texas.*fn2
The Law Division rejected Rivas's claims that he was entitled to have the subpoenas enforced, concluding that because "there [was] no indication that [Rivas] provided an abnormal or inadequate breath sample volume or blowing time when using the Alcotest in this case," the question of calibration of "pulmonary functioning" of the Alcotest was irrelevant. Furthermore, the Law Division concluded, "[t]he Supreme Court of New Jersey has already determined that the Alcotest 7110 MKIII-C is generally scientifically reliable, and [Rivas] fails to raise any compelling argument as to why the ...