NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 54-2009.
Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Kimberly A. Schultz, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Tzvi Dolinger, on the brief).
Before Judges Messano and Lihotz.
In a trial de novo before the Law Division, defendant Charles G. DiMarco was found guilty of a per se violation of driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on the results of an Alcotest. He was sentenced to three months loss of his driving privileges and twelve hours of instruction through the Intoxicated Driver Resource Center, along with fines and penalties. On appeal, he raises this single argument challenging the administration of the Alcotest:
THE ALCOTEST READING IS INADMISSIBLE BECAUSE THE STATE FAILED TO SHOW THAT THE ALCOTEST MACHINE WAS OPERATED IN A PROPER MANNER.
Following our review, we affirm. In our discussion, we recite only facts related to the single issue on appeal, omitting discussion of other events and issues raised in the prior proceedings.
Defendant was stopped after his vehicle passed, at a high rate of speed, the vehicle of arresting officer Michael Carullo of the Edison Township Police Department. Ultimately, defendant was arrested for DWI and transported to the Metuchen police station for breath testing. Upon arrival, another Edison officer, Patrolman Brian Freud, a certified Alcotest operator, was completing his testing of another suspect. Patrolman Freud prepared to test defendant by placing the Alcotest in front of him and seating defendant to his left. Patrolman Freud explained he always clears the room of cell phones and makes sure all portable radios are turned off or left outside the testing room before he prepares for testing. He next commenced the "initiation of the Alcotest machine, which is prompted" as the machine tells the preparer what information to input. Officer Carullo read defendant the required statement regarding refusal, as Patrolman Freud finished preparing the Alcotest to accept the first breath sample. Patrolman Freud read defendant the Alcotest instructions then defendant blew into the machine. Since the first sample was inadequate, Patrolman Freud waited for the machine to purge, perform the ambient air checks, and issue the cue for the next breath sample. Two successful breath samples were obtained. Patrolman Freud recorded the results, showing a blood alcohol concentration of .08 percent, and provided defendant with a copy.
Patrolman Freud recited his Alcotest training and experience, stating he had performed approximately forty tests. When asked on cross-examination whether he or Officer Carullo had observed defendant prior to administering the Alcotest, he responded: "Yeah, we were both in the same room with [defendant]." He explained defendant sat next to him, and he watched him as he simultaneously logged the information into the machine. Patrolman Freud affirmed he observed defendant for twenty minutes.
The State introduced the foundational documents for the Alcotest, which were maintained by the police department in the ordinary course of business. Further, the Alcohol Influence Report of defendant's tests was admitted.
The Law Division judge, guided by State v. Chun, 194 N.J. 54, cert. denied, 55 U.S. 825, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008), reviewed this evidence and found, as had the municipal court judge, the police had properly prepared the Alcotest machine prior to administering defendant's tests. He noted, "[c]onsidering the number of steps undertaken by an officer for every Alcotest administered, requiring testimony as to the completion of each individual step seems ...