NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 63-2011.
John Menzel argued the cause for appellant.
Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit and Susan L. Berkow, of counsel; Ms. Berkow, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant entered a conditional guilty plea to driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50, after the municipal judge denied a number of motions defendant filed seeking to dismiss the charge. Upon de novo review in the Law Division, the Law Division judge once again denied defendant's motion to dismiss the charge or, alternatively, to exclude the Alcotest results. The judge also denied defendant's demand for a jury trial. The judge imposed fines and penalties and ordered defendant "to forfeit his driving privileges for two years, to have an ignition interlock installed for one year after reinstatement of his driving privileges, to attend an intoxicated driver resource center for [forty-eight] hours, and to perform [thirty] days of community service." The judge stayed execution of the sentence for forty-five days. The present appeal followed.
On appeal defendant raises the following points for our consideration:
BY FAILING TO PROVIDE THE DEFENSE WITH COMPLETE ALCOTEST DATA AND REPAIR RECORDS, THE STATE WITHHELD MATERIAL, RELEVANT, EXCULPATORY EVIDENCE, WARRANTING THIS COURT TO EITHER DISMISS THIS MATTER OR EXCLUDE THE ALCOTEST RESULT.
A. THE STATE FAILED TO EITHER PRODUCE ELECTRONIC ALCOTEST DATE OR ADEQUATELY EXPLAIN ITS DESTRUCTION.
B. THE COURTS BELOW IMPROPERLY RELIEVED THE STATE OF ITS OBLIGATION TO PROVIDE REPAIR RECORDS TO THE DEFENSE IN DISCOVERY.
C. PROSECUTION FAILURES TO PROVIDE MANDATED DISCOVERY TO THE DEFENSE WARRANTS A REMEDY.
BECAUSE THE ALCOTEST HERE FAILED TO ADHERE TO THE TWO-MINUTE LOCKOUT BETWEEN VARIOUS ETHANOL MEASUREMENTS, THIS COURT SHOULD EXCLUDE THE ALCOTEST RESULT.
BECAUSE POLICE VIOLATED REQUIRED PROCEDURE BY FAILING TO GIVE DEFENDANT A COPY OF THE ALCOHOL INFLUENCE REPORT ON HIS RELEASE FROM CUSTODY, THIS COURT SHOULD EXCLUDE THE ALCOTEST RESULT.
THE STATE'S FAILURE TO USE THE DIGITAL PROBE SPECIFIED BY THE SUPREME COURT IN STATE V. CHUN FOR USE IN CALIBRATION WARRANTS EXCLUSION OF HIS ALCOTEST RESULT.
TO PRESERVE THE RECORD, DEFENDANT ASSERTS A RIGHT TO A JURY TRIAL.
We have considered the points raised in light of the record, the arguments advanced and the applicable legal principles, and reject each of the points raised. We therefore affirm.
Police arrested defendant on April 29, 2011, charging him with DWI, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97, and transported him to the State Police Barracks in Cranbury for processing. Police administered a breathalyzer test of defendant's blood alcohol content (BAC), utilizing the Alcotest 7110 MK III-C (Alcotest). The test revealed defendant's BAC was 0.13%.
On May 3, 2011, defense counsel filed a demand for discovery and a jury trial. On June 16, 2011, the parties appeared before the South Brunswick Township Municipal Court judge, who entered a pretrial order which noted that all but the "Draeger Safety Ertco-Hart Calibration Report" had been provided to defense counsel. On June 23, 2011, the court issued a second discovery order instructing the State to provide defense counsel with additional discovery items, notably, the data downloads as well as repair records of Alcotest 7110 serial number ARUL-0062.
During a discovery conference held on July 21, 2011, the State advised the court of the unavailability of certain portions of the Alcotest repair records, resulting in the court entering a modified order on June 23, directing the State to only provide "any repair records that exist."
The State provided the following repair records related to the Alcotest machine on August 2, 2011:
1. Packing slip 80266447 dated January 16, 2007;
2. Breath Testing Instrumentation Service Report dated March 9, 2010;
3. Return and Repair form dated March 12, 2010;
4. Packing Slip 80506080 dated March 17, 2010;
5. Breath Testing Instrumentation Service Report dated March 23, 2010;
6. Packing Slip 80616410 dated July 25, 2011;
7. Return and Repair form dated July 25, 2011;
8. Breath Testing Instrumentation Service Report dated August 12, 2011.
Defendant received an additional packing slip while his dismissal motion was pending. Defendant was also provided with a printout of the electronic data of the Alcotest machine.
On August 4, 2011, defendant filed a pretrial motion to dismiss the matter or, in the alternative, exclude the Alcotest results on several grounds, namely, the use of a non-Ertco-Hart thermometer during the Alcotest calibration, incomplete data downloads, failure to leave a two-minute gap between "various ethanol measurements, " and failure to provide defendant with a copy of his Alcohol Influence Report (AIR) upon release from custody.
On September 15, 2011, Judge Dawn Shanahan denied defendant's motion to exclude the Alcotest results based on the use of a non-Ertco-Hart thermometer. The court specifically referenced our decision in State v. Holland, 422 N.J.Super. 185, 197 (App. Div. 2011) (Holland I), affirmed after remand, 423 N.J.Super. 309 (App. Div. 2011) (Holland II), wherein we stated that "the use of another manufacturer's [digital thermometer] to calibrate the Alcotest does not alone compel exclusion of these results[, ]" and thereby rejected the argument that utilizing a non-Ertco-Hart thermometer in the BAC testing was contrary to the Court's holding in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S.Ct. 138, 172 L.Ed.2d 41 (2008).
Judge Shanahan also found meritless defendant's challenge to the completeness of the electronic data downloads generated during the calibration of the Alcotest machine as provided in discovery, finding that the State's provision of the electronic downloads in printed form was sufficient. Likewise, the municipal judge rejected defendant's argument that failure to provide him with a copy of his AIR upon his release was yet another basis to suppress the Alcotest results. She reasoned that defendant did not allege the AIR he received in discovery was falsified, nor did he show any prejudice or harm resulting from the late receipt of the AIR.
Finally, Judge Shanahan denied defendant's motion to exclude the Alcotest results because of an inappropriate time lapse between ethanol measurements. Defendant argued that the Alcotest operator erred because "less than two minutes occurs at various parts of the calibration control test and solution change functions, as well as between control tests and breath tests." The judge disagreed, stating that the two-minute lockout period required under Chun relates only to the interval between breath samples, as it is "designed to [prevent] any residual alcohol contamination from mouth alcohol still inside the cuvette from a previous breath sample" and therefore "does not extend to control tests or to any other functions performed" on the Alcotest machine.
On September 29, 2011, defendant moved for reconsideration in light of our unpublished decision in State v. Carlson, No. A-0772-10 (App. Div. September 14, 2011). The court ordered the parties to brief the issue. On October 27, 2011, the court denied defendant's motion for reconsideration. Judge Shanahan reiterated that she was not persuaded the deleted data was material, relevant or exculpatory evidence. She also denied defendant's motion for a jury trial.
Defendant entered a conditional guilty plea to DWI, preserving for appeal the issues raised in connection with his motion to dismiss the case or suppress the Alcotest results. During his plea allocution, defendant admitted he consumed three or more rum and coke beverages before driving on the day he was arrested. Defendant was sentenced, as a second offender, to two days in prison, ordered to serve forty-eight hours in the Intoxicated Driver Resource Center, and forfeited his driving privileges for two years. The court ordered the installation of an alcohol ignition interlock for one year following the restoration of his driving privileges, and imposed a variety of other ...