NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-37-2011.
Stephen J. Buividas, attorney for appellant.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson and Haas.
Following a trial de novo in the Law Division, defendant Kathleen Law was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4–50. On appeal, defendant raises the following points for our consideration:
THE FACTS PRESENTED AT TRIAL WERE INSUFFICIENT, CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, TO WARRANT A CONVICTION.
DEFENDANT'S CONVICTION MUST BE SET ASIDE BECAUSE THE PROSECUTOR PRESENTED THE SUPERIOR COURT JUDGE WITH EVIDENCE WHICH HAD BEEN ORDERED SUPPRESSED AT A PRIOR STAGE OF THE PROCEEDINGS.
DEFENDANT'S CONVICTION MUST BE SET ASIDE BECAUSE THE COURT BELOW PERMITTED THE PROSECUTION TO FILE AN UNTIMELY TRIAL BRIEF TO WHICH DEFENDANT WAS AFFORDED NO OPPORTUNITY TO REPLY.
We have considered the points in light of the record and applicable principles and conclude there is no basis to disturb the findings below. However, we express our disapproval of the State's submission to the Law Division judge, one day before the hearing, of the results from the Alcotest, which the municipal judge had excluded. We find this particularly troublesome because the State elected not to cross-appeal the exclusion of the test results after defendant filed her de novo appeal. In light of its decision not to appeal the ruling, we find no merit to the State's position that it provided the results of the breathalyzer test to "preserv[e] the issue of the wrongful exclusion of the . . . findings, " in the event the court acquitted defendant of DWI. We agree, as the Law Division judge suggested, that such an approach may implicate double jeopardy principles. However, we need not resolve that issue in this appeal because the Law Division judge expressly stated that his findings were based on the record presented before the municipal judge. Under our standard of review, we are convinced the record provides substantial, credible evidence supporting defendant's conviction and we therefore affirm.
Prior to trial, defendant moved to dismiss the charge based upon an alleged lack of probable cause to arrest defendant for DWI. The court denied the motion and the matter proceeded to trial, where the parties agreed that the testimony elicited at the probable cause hearing would be incorporated into the trial and considered by the court. The court, however, granted defense counsel's motion to exclude the results of the breathalyzer test based upon its interpretation of our first decision in State v. Holland, 422 N.J.Super. 185 (App. Div. 2011). The municipal judge interpreted the decision as remanding to the trial court in order to conduct a "Frye[h]earing to see what the similarities and dissimilarities are, " which, in the municipal judge's mind, "support[ed] [his] conclusion [here] that [he could not] accept the Alco[t]est ...