Argued May 28, 2014
Approved for Publication June 27, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Summons No. 0112209587-590.
Brenden T. Shur argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Shur, on the brief).
Kathleen E. Bond, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent ( James P. McClain, Acting Atlantic County Prosecutor, attorney; Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges MESSANO, SABATINO and HAYDEN.
[436 N.J.Super. 265] SABATINO, J.A.D.
In this appeal of his drunk driving (" DWI" ) conviction under N.J.S.A. 39:4-50(a), defendant presents a novel constitutional argument. [436 N.J.Super. 266] He challenges the manner in which Alcotest evidence of a driver's blood alcohol content (" BAC" ) is admitted and relied upon at DWI trials in so-called " per se" cases in our State involving a BAC measurement at or above .08 percent.
Specifically, defendant argues that our case law authorizing the admission of BAC results at trial when the prerequisites for the Alcotest's evidential admissibility are shown by clear-and-convincing proof, coupled with the conclusively incriminating treatment of a BAC at or above .08 percent under N.J.S.A. 39:4-50(a), combine to create an unfair and constitutionally invalid situation. According to defendant, these aspects of our DWI statutes and case law improperly relieve the State of its constitutional burden of establishing a driver's guilt in per se cases by the more rigorous standard of proof beyond a reasonable doubt.
For the reasons that follow, we reject defendant's claim of unconstitutionality, and affirm his conviction.
On June 15, 2012, defendant Scott Campbell was driving a motor vehicle in Hamilton Township in Atlantic County when he was stopped by the police. Police officers tested his breath with the Alcotest device. According to the State's submissions, the test measured defendant's BAC at .12 percent, a level over the .08 percent limit set forth in N.J.S.A. 39:4-50(a).
Defendant was arrested and charged with DWI, N.J.S.A. 39:4-50;  reckless driving, N.J.S.A. 39:4-96; failure to exhibit documents, [436 N.J.Super. 267] N.J.S.A. 39:3-29; and careless driving, N.J.S.A. 39:4-97. Defendant moved to suppress the ...