STATE OF NEW JERSEY v. VINCENT G. SANBORN, IV

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2155-05T22155-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT G. SANBORN, IV,

Defendant-Appellant.

______________________________________________________________

 

Argued September 12, 2006 - Decided October 2, 2006

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 0065-05.

John Menzel argued the cause for appellant.

Jack J. Lipari, Assistant County Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant, Vincent G. Sanborn, IV, appeals the Law Division's December 19, 2005 order finding him guilty of a violation of N.J.S.A. 39:4-50 (driving under the influence of narcotics) and N.J.S.A. 39:3-40 (driving with a suspended license while under the influence). The December 19, 2005 order memorialized Judge Neustadter's December 9, 2005 comprehensive written opinion made after the judge conducted a de novo review of the record of the Somers Point Municipal Court, pursuant to Rule 7:13-1 and Rule 3:23. The record consisted of the municipal court's January 4, 2005 denial of defendant's request for a jury trial, the May 3, 2005 testimonial hearing and denial of defendant's motion to suppress evidence, which testimony was incorporated into the trial, and the six-day trial record, which began May 10, 2005 and concluded August 30, 2005. On August 30, 2005, the municipal court found defendant guilty of driving under the influence of a controlled dangerous substance (CDS) (methadone, cocaine and diazepam) and driving with a suspended license but dismissed the remaining charges.

On the driving while under the influence charge, defendant was sentenced to a 180 day term of imprisonment, ninety days of which could be served at an in-patient program; ten years drivers license suspension; three years of ignition interlock; $1,006 fine and $368 for the various statutory assessments. For the driving with a suspended license conviction, defendant was sentenced to a ninety-day term of imprisonment, eighteen-months driver's license suspension, $1,506 fine and $33 court cost.

Judge Neustadter, after affirming the convictions of the municipal court and finding defendant guilty of violating N.J.S.A. 39:4-50 and N.J.S.A. 39:3-40, imposed the same sentence as the municipal court but clarified that the terms of imprisonment for the two convictions were to run concurrently to each other but consecutively to an unrelated sentence defendant was serving, which was imposed on August 5, 2005. This appeal followed. We affirm.

The salient facts are recited in Judge Neustadter's opinion. We restate them verbatim.

On November 2, 2004, at approximately 1:30 p.m., Patrolman (Ptlm.) Dill and Zucker of the Somers Point Police Department responded to the parking lot of the Starn's Shop Rite in Somers Point. The police dispatcher provided a description of defendant's vehicle and informed the officer that there was some concern as to the driver's well being as he apparently had been asleep for approximately thirty minutes. Ptlm. Dill located the vehicle and noted that an individual, later identified as defendant, was inside. The motor was running and the vehicle appeared to be in park. Moreover, both the driver's side and passenger's side doors were approximately one third to one half open. Defendant was in the driver's seat, slumped over, sweating profusely, and either passed out or asleep. It was mid-light jacket weather and defendant was wearing a T-shirt.

Ptlm. Dill knocked on the window to arouse defendant. Defendant appeared confused and disoriented. Ptlm. Dill observed that defendant's speech was severely slurred, his motor skills were slow, and he avoided eye contact. Based on his observations, Ptlm. Dill asked defendant to step out of the car so he could administer some tests. Defendant's movements were slow while exiting the car. At this time, defendant informed Ptlm. Dill that he did not sleep much the night before because his wife had "left him." Also at this time, Ptlm. Dill noted that defendant's breath did not smell of alcohol. Before administering the tests, Ptlm. Dill asked defendant if he has any medical conditions. Defendant responded that he has a herniated disc in his back and therefore cannot do balancing tests.

Ptlm. Dill put defendant through four tests: alphabet, heel to toe, arm hang, and finger to nose. Defendant was able to recite the alphabet without singing. However, he avoided eye contact with the officers, his speech was slurred, and he paused for about five seconds after the letter "S." Defendant made two failed attempts at the heel to toe test. He blamed his herniated disc when asked why he could not complete the task. Next, the arm hang test. Ptlm. Dill gave defendant verbal instructions and a demonstration. Ptlm. Dill instructed defendant not to begin until he was done demonstrating the test. However, despite this specific order, defendant began the test prematurely several times. While attempting this test, defendant's body swayed from side to side. Defendant also began the final test, the finger to nose test, prematurely before Ptlm. Dill was finished demonstrating. Moreover, while performing the test, defendant did not place his feet together as instructed.

At this point, Ptlm. Dill, based on his training and experience, determined that the defendant should be arrested for Driving While Intoxicated. Ptlm. Dill believed that the totality of circumstances, namely defendant's physical traits, demeanor, and performance on the tests, warranted an arrest. Defendant was placed in handcuffs.

Upon being arrested, defendant became irritated and out of control. He claimed that he had been robbed of $3,000, and stated that his wife was in the Shop Rite and would not know where he went if the police took him away. He began yelling and resisted getting into the patrol vehicle. Eventually the officers placed defendant in their patrol vehicle and transported him to the Somers Point City Hall.

At City Hall defendant continued sweating. He also staggered, and was unable to walk straight. Defendant was read the DWI refusal form and he consented to a breathalyzer test. Defendant was administered two breathalyzer tests, both of which resulted in a .00 reading. At approximately 3:25 p.m., defendant completed a drunk driving questionnaire. During the questioning, defendant indicated that he is the manager and co-owner of Felicity's Restaurant in Somers Point. He also indicated that although he is sick, his doctor could not tell what was wrong with him. He indicated that he is not under the ongoing care of a doctor, and is not taking any medication. Ptlm. Dill then read defendant a Miranda card. Defendant ignored Ptlm. Dill when asked if he wanted to consult a lawyer.

Next, defendant consented to a blood test. Ptlm. Dill obtained a blood kit and transported defendant to Shore Memorial Hospital. At the hospital, defendant provided his oral consent to the blood test to Ken Michelette, R.N., and also signed a standard treatment and test form in the presence of a triage nurse Jamie Pierce. Ptlm. Dill and Nurse Michelette also signed a separate form, copies of which are kept at the hospital and the police station. On that form Nurse Michelette indicated that the blood test will be conducted in a medically accepted manner. Nurse Michelette extracted two vials of blood from defendant, which Ptlm. Dill immediately sealed and labeled. Next, defendant provided a urine sample, which Ptlm. Dill supervised. Ptlm. Dill likewise sealed and labeled the urine sample. Also while at the hospital, defendant declined treatment from Dr. Pepe.

Back at City Hall, Ptlm. Dill placed defendant in the holding cell and the specimens in the detective bureau's evidence refrigerator. Ptlm. Dill entered the specimens into the evidence log and completed a property evidence description report.

The next day, November 3, 2004, Detective Scott Hanson of the Somers Point Police Department removed the specimens from the evidence refrigerator, initialed the property evidence description report, and transported them to the New Jersey State Police Laboratory in Hammonton, NJ. Detective Hanson gave the specimens to Ms. Gwendolyn Frederico, an evidence handler and clerical typist at the laboratory. They were sealed when he turned them over to her. She then completed a lot report, which she signed and Detective Hanson initialed. She gave Detective Hanson a copy of the report. She then removed the specimens from their sealed packaging, placed the specimens in a lab bag, sealed the lab bag, and placed it in the secure vault. The specimens were scanned into the vault using the LIM2 scanner, which utilizes barcodes. Ms. Frederico also filled out a vault log with respect to defendant's specimens.

The following day, November 4, 2004, Ms. Eustaoia McDonald, a forensic scientist employed by the State Police Laboratory in Hammonton, obtained defendant's specimens from the vault log. In actuality, Ms. Kathleen Brown, another evidence handler at the laboratory, retrieved the evidence from the vault and walked it over to Ms. McDonald who was waiting in the vault lobby area. The specimens were sealed when Ms. McDonald received them. She signed them out of the vault log book. She brought the specimens back to the toxicology unit. On November 9, 2004, she performed a GC mass spec test on the specimens. The results were positive for methadone, cocaine, diazepam, and probable benzodiazepines for the blood specimen, and positive methadone, cocaine, and probable morphine and benzolecamine for the urine specimen. On November 10, 2004, Ms. McDonald performed a EMIT test on the specimens. The results indicated that there was cocaine and benzodiazepines in the blood and methadone, cocaine, opiates and benzodiazepines in the urine.

In addition to the facts recited above, at trial, defendant presented evidence of his medical conditions, which included a herniated disc, chronic lower back pain, and sleep disturbances. Dr. Henry Greenwood, a neurosurgeon, performed spinal surgery on defendant in 1996 to relieve pain and pressure from defendant's herniated disc and to stabilize nerve damage. Defendant was in a traffic accident on April 14, 2000 that caused a second herniated disc, which was never operated on. Defendant produced documentation through October 2002 of doctor's visits and the continuation of his symptoms of severe back pain and sleep disturbance. Defendant was prescribed pain medications including Elavil, Vicodin, Percocet, Oxycontin, and Vioxx, and was identified as a surgical candidate. He received epidural injections that were supposed to reduce inflammation and pain, but gave no relief. In September 2002, defendant was diagnosed with chronic pain syndrome, which has continued despite medical treatments and pain management techniques.

On March 5, 2003, Dr. Greenwood certified that it was his "opinion that . . . this patient has sustained permanent injury that will have permanent residual sequella" and "though further treatment in the future may alleviate some of my patient's symptomology, that permanent residuals of the injury cannot be completely resolved by way of further medical treatment and intervention, and there will always be some aspect of residual permanent injury experienced for the balance of this plaintiff's life." Defendant's medical records, however, provide no indication that he had a prescription for any pain medication in November 2004, and defendant has never had a prescription for diazepam, methadone, or codeine.

Dr. George Godfrey testified for the State as an expert in the field of medication relative to the care and treatment of a patient who may have sustained a lumbar injury, the prescribing of medication, and the effects and indicators of medication. He opined that defendant at the Starn's ShopRite parking lot, "was under the influence of drugs," and "it would be improper to drive with the medication that was present in [defendant's] bloodstream and had been in his bloodstream as demonstrated or shown on the urinalysis." Basing his opinion on his review of defendant's medical records, Dr. Godfrey concluded that "absent left Achilles reflex[,] . . . [defendant] had . . . normal range of motion of the trunk. He had appropriate gait. And being able to support himself on his heels and toes shows that his balance and coordination were proper so that he was normal in appearance on examination." Dr. Godfrey further opined that defendant's pain did not radiate down to the lower extremities and that his medical condition would not have caused him to sway or stagger when performing the psycho-physical tests, to shout or slur, to experience drowsiness, profusely sweat, or exhibit uncoordinated and sluggish behavior. Instead, those symptoms and defendant's bloodshot and extremely watery eyes were consistent with the side effects caused by the drugs in defendant's system.

On appeal, defendant presents the following issues for our consideration:

POINT I

WHETHER DEFENDANT'S ARREST WAS SUPPORTED BY PROBABLE CAUSE, AND THEREFORE, THE COURT PROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

POINT II

WHETHER THE WARRANTLESS AND UNCONSENSUAL WITHDRAWAL OF DEFENDANT'S BLOOD WAS UNREASONABLE UNDER THE CIRCUMSTANCES OF THIS CASE.

POINT III

WHETHER THE STATE SATISFIED ITS BURDEN TO PROVE DEFENDANT OPERATED HIS WIFE'S VEHICLE.

POINT IV

WHETHER THE STATE SATISFIED ITS BURDEN TO PROVE DEFENDANT WAS UNDER THE INFLUENCE.

POINT V

WHETHER THE STATE ESTABLISHED THE TIME DEFENDANT DROVE OR WHETHER DEFENDANT WAS UNDER THE INFLUENCE WITHIN A REASONABLE TIME OF HIS DRIVING.

POINT VI

WHETHER THE COURT IMPROPERLY CONSIDERED THE LABORATORY RESULTS BECAUSE THE STATE FAILED TO SHOW AN ABSENCE OF CONFUSION WITH OTHER SAMPLES AND AN UNINTERRUPTED CHAIN OF CUSTODY.

POINT VII

WHETHER THE COURT SHOULD HAVE EXCLUDED THE LABORATORY RESULTS BECAUSE THE STATE FAILED TO PRESENT EVIDENCE ON THE STATE POLICE LABORATORY TESTING EQUIPMENT.

POINT VIII

WHETHER THE DEFENDANT WAS ENTITLED TO A JURY TRIAL.

When an appeal is from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8. The Law Division makes a new decision on its own, "giving due, although not necessarily controlling regard to the opportunity of the [municipal judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). Since the Law Division judge is not in a position to judge the credibility of witnesses, the judge should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999); see R. 3:23-8(a) on criminal trials de novo.

The standard of review in this court is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, supra, 42 N.J. at 162. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

I

After carefully reviewing the record of the municipal court, in light of the written and oral arguments advanced by the parties as to Points I, II, III, IV, V and VI, we affirm substantially for the reasons expressed by Judge Neustadter in his comprehensive written opinion of December 9, 2005. The judge's findings of fact and conclusions of law on those issues are supported by substantial, credible evidence in the record. State v. Locurto, supra, 157 N.J. at 470-71. We add the following:

Defendant argues that because of his medical condition, the psycho-physicals yielded no reliable information. Therefore, Ptlm. Dill had no objective basis for believing he was under the influence of drugs or alcohol. Defendant contends that all Ptlm. Dill had to go on was a "hunch," which was not sufficient to establish probable cause for his arrest.

We are satisfied that even if the psycho-physical tests that defendant could not perform due to his back injury were not considered by Ptlm. Dill, there were sufficient objective indicators that defendant was under the influence to establish probable cause for the arrest. "Probable cause is present 'where the facts and circumstances within [an] officer's knowledge,' based on 'reasonably trustworthy information,' are sufficient to support a reasonable belief 'that an offense has been or is being committed.'" State v. Pitcher, 379 N.J. Super. 308, 314 (App. Div. 2005) (quoting Maryland v. Pringle, 540 U.S. 366 157 L. Ed. 2d 769, 124 S. Ct. 795 (2003); State v. Pineiro, 181 N.J. 13, 21 (2004)), certif. denied, 186 N.J. 242 (2006).

In State v. Bruzzese, 94 N.J. 210, 219-20 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), the Court held:

[T]he proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search [or seizure] was objectively reasonable, without regard to his or her underlying motives or intent. We emphasize that the Fourth Amendment proscribes unreasonable actions, not improper thoughts. In determining whether a police officer's actions are constitutional, we do not rely on the officer's own subjective appraisal, but upon an objective evaluation by a neutral judicial authority.

We are satisfied that the record supports the judge's determination that Ptlm. Dill's observations of defendant's behavior, when viewed objectively, were sufficient to establish probable cause that defendant was under the influence. Defendant's herniated disc could not, as testified by Dr. Godfrey, explain away his profuse sweating, blood-shot and watery eyes, lack of eye-contact, incoherent and slurred speech, and his inability to follow Ptlm. Dill's instructions. Ptlm. Dill, who had a breathalyzer certification and was specifically trained to detect persons under the influence of alcohol or narcotics, personally observed defendant's behavior. Courts will consider such training when evaluating whether there was probable cause. See State v. Jackson, 124 N.J. Super. 1, 4 (App. Div. 1973), certif. den., 63 N.J. 553 (1973). Therefore, we are convinced that the probable cause requirement was satisfied.

Defendant argues that the State failed to establish that he had the intent to operate a motor vehicle despite his having been found asleep, seated in the driver side of a Jeep registered to his wife, while it was running, parked in a ShopRite parking lot during the middle of the day. "Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof. The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical conclusion of an intent to drive." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1997) (citations omitted), (the court found sufficient evidence of driver's intent to operate a truck stopped in a parking lot at 11:45 at night with its lights on and engine running, when the driver was seated behind the wheel talking to a woman standing outside).

"[W]hen one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to the sobriety test required by N.J.S.A. 39:4-50.4a." State v. Mulcahy, 107 N.J. 467, 479 (1987). The defendant argues that because there was no evidence that he actually turned on the engine or drove to the parking lot, and because he told Ptlm. Dill that his wife was in the ShopRite, that the State did not establish he had either operated the car or intended to operate it.

Our review of the record indicates that there was sufficient circumstantial evidence that the car was "operable." The State is not required to prove that a defendant actually moved the car, but only evidence that the defendant intended to and that there was a possibility of motion. See State v. Stiene, 203 N.J. Super. 275, 278-79 (App. Div. 1985), certif. denied, 102 N.J. 375 (1985). In this case, the car had been successfully driven to the ShopRite parking lot and the police found it parked with defendant behind the wheel with the engine running. We are satisfied, as Judge Neustadter and the municipal court found, that the circumstances were not "more consistent with a person sleeping while waiting for . . . the vehicle's owner to return." In such a case, defendant would more likely have been situated in the passenger side and not slumped over the steering wheel in the driver's seat with the motor running.

Defendant relies on our decision in State v. Bealor, 377 N.J. Super. 321 (App. Div. 2005) for his contention that the State failed to prove intoxication. In Bealor, we reversed the defendant's conviction for driving under the influence because "[t]he State failed to present any evidence of the quantity of marijuana metabolites in defendant's urine, nor did the State present any evidence linking defendant's driving or post-arrest conduct with marijuana intoxication." Bealor, supra, at 327. We determined that a police officer's lay opinion regarding the defendant's behavior was not evidence of marijuana intoxication because it "is not a matter of common knowledge such that an inference of intoxication may be drawn solely from a lay witness's testimony respecting defendant's behavior[,]" and "a per se rule cannot be applied to a [driving while intoxicated] charge involving marijuana in the absence of any evidence as to the effect of marijuana on defendant's behavior or physical appearance." Id. at 329-330.

The Supreme Court reversed and reiterated its interpretation of N.J.S.A. 39:4-50 that it adopted in State v. Tamburro, 68 N.J. 414, 421 (1975): "[T]he driving while intoxicated statute 'does not require that the particular narcotic[, hallucinogen or habit-producing drug] be identified.'" Bealor, 187 N.J. 574, 589 (2006). As respects the quantum of narcotics found, the Court stated:

[T]he statute also does not define the quantum of narcotics, hallucinogens or habit-producing drugs required in order to violate its prohibition. Instead, as with alcohol intoxication, the issue is simple: was the defendant "under the influence" of a narcotic, hallucinogen or habit-producing drug while he operated a motor vehicle.

[Ibid.]

A defendant is "under the influence of a narcotic drug . . . if the drug produced a narcotic effect 'so altering his or her normal physical coordination and mental faculties as to render such person a danger to himself as well as to other persons on the highway.'" Tamburro, supra, 68 N.J. at 421 (quoting State v. DiCarlo, 67 N.J. 321, 328 (1975)).

The Court in Bealor determined that

the fact of defendant's intoxication was amply proved by [the arresting officer's] fact testimony in respect of defendant's erratic and dangerous driving, his slurred and slow speech, his "bloodshot and glassy" eyes, his droopy eyelids, his "pale and flushed" face, his "fumbl[ing] around the center console and his glovebox searching for all his credentials," the smell of burnt marijuana on defendant, his sagging knees and the "emotionless stare on his face." Also, on cross-examination, [the officer] testified without objection that defendant was intoxicated at the time of his arrest. Finally, the State incontrovertibly proved, through qualified experts, the presence of marijuana in defendant's blood stream at the time of the arrest and its likely source. The aggregate of those proofs was more that sufficient to permit the fact-finder to conclude, beyond a reasonable doubt, that defendant violated the driving while intoxicated statute.

[(Bealor, supra, at 590.)]

Ptlm. Dill observed similar conduct in defendant, thereby establishing that the narcotic effect "so alter[ed] his . . . normal physical coordination and mental faculties as to render [him] a danger to himself as well as to other persons on the highway." Tamburro, supra, 68 N.J. at 421. Moreover, Dr. Godfrey opined that defendant's behavior and physical symptoms demonstrated that he was "under the influence" of a combination of drugs. Defendant attacks the credibility of Ptlm. Dill's testimony and the weight that should be afforded to Dr. Godfrey's testimony, since Dr. Godfrey did not review Ptlm. Dill's training in evaluating physical tests, examine defendant, or review a nonexistent videotape of defendant performing the tests. However, an appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. 146 at 161.

II

Under point VII of his brief, defendant argues that the judge should have excluded the laboratory test results because the State failed to present evidence that the analytical equipment used to analyze the blood and urine samples were in proper operating condition. The judge, relying on State v. Weller, 225 N.J. Super. 274 (Law Div. 1986) and our decision in State v. Cathcart, 247 N.J. Super. 340 (App. Div. 1991), determined that the State did not have the burden to prove the reliability of the machines used to conduct the Gas Chromatography Mass Spectrometry test. In Cathcart, we took judicial notice of decisions establishing that the gaschromatograph mass selector detection (GC/MS) machine used in that case to examine the substance and to form a basis for the reliability of its testing result as positive for cocaine was reliable. Id. at 352. We found no error in the trial judge's admission of testimony regarding test results in the absence of any evidence proffered by defendant as to the machines lack of reliability. Ibid.

However, defendant's challenge here is not to the general reliability of the GC/MS, but as to the lack of proof, by clear and convincing evidence, that the equipment used on the date defendant's blood and urine samples were tested was in proper operating condition. See Romano v. Kimmelman, 96 N.J. 66, 81 and 90 (1984); State v. Johnson, 42 N.J. 146, 170 (1964). Defendant argues that just as "the admissibility of the state police chemist's report must be informed by an evidential record that addresses all relevant factors," State v. Matulewicz, 101 N.J. 27, 31 (1985), so too must the results stated thereon and that such a foundation was not presented here. See State v. Sandstrom, 277 N.J. Super. 354, 357 (App. Div. 1994)("Noting the impact that [breathalyzer] test results have in drunk driving prosecutions, our Supreme Court has said that 'proper administration of the test [must] be clearly established before the reading is admitted in evidence'")(quoting State v. Johnson 42 N.J. 146, 171 (1964)).

Defendant argues that while the State forensic scientist was able to speak in generalities about how her results were "acceptable," the State offered no specific results, documents, or certificates showing that the equipment used in this case was in proper operating condition. Consequently, defendant contends that there is a gaping hole in the foundation needed to support admissibility of the results requiring this court to exclude them and acquit defendant. We disagree.

Our review of the record confirms that State Scientist McDonald performed multiple tests on the blood and urine in order to verify the contents of it. Two of the tests performed were the Enzyme Multiplied Immunoassay Technique (EMIT) test and the GC/MS test.

With regard to the EMIT, the State's expert gave the following testimony:

Q: Okay. The EMIT test, is there any type of certification by the State relative to this test being a functioning, properly functioning piece of equipment, if you know?

A: There are service contract, maintenance, maintenance comes in maybe once a year. And we calibrate it every day that it's used.

Q: Okay. And what does that mean, you calibrate it? How do you do that and what's intended to show?

A: We show negative results, positive low results and high results. It obtains a calibration rate and there's a number that's produced. If it's below 14 it's, we are allowed to use that, that category of drug. If it's above 14 we need to recalibrate it.

Q: Okay. And was that done on this EMIT, if you know?

A: Yes.

Q: And who did that? Was it you or someone else?

A: It was me.

Q: Okay. And were you satisfied with the calibration results on the EMIT

A: Yes.

. . . .

Q: And if you could take a look and let me know what the document shows?

A: It shows that all nine categories of drugs were calibrated on the 10th and all of the differential numbers are below 14.

According to McDonald's testimony, she calibrated the machine the day defendant's EMIT test was administered. We understand her testimony to mean that the calibration results conducted on that day all concluded that the machine was in proper working condition, as the results were all under the 14 ceiling. Accordingly, we are satisfied that the State fulfilled its burden of proving that the machine was in proper operating condition at the time defendant's EMIT test was administered.

With regard to the GC/MS test, the State's expert gave the following testimony:

Q. How does one insure that the GC/MS test is performed on a properly working piece of equipment?

A. According to protocol there are four acceptable standard mixes. One of those four has to be run on the day that you're running case studies, case samples. And as long as that mix, that standard mix is accurate then we know that the system is running properly.

Q. And did you perform that test to insure that the equipment was running properly or did someone else?

A. I did.

Q. And were you satisfied that it was in fact performing properly?

A. Yes.

We understand McDonald's testimony that she used one of "four acceptable mixes," to mean, after running the mix through the GC/MS, she compared the results of the mix to the mass spectrum with which the compound's molecular structure should identify. McDonald testified that she was "satisfied" with the results of the test. Therefore, based upon the satisfactory testing of one of the four acceptable mixes on the same day that defendant's test was administered, we are satisfied that the State fulfilled its burden of proving that the GC/MS machine was in proper operating condition at the time defendant's test was administered. Accordingly, we affirm Judge Neustadter's determination with respect to proof of the operability of the testing equipment, but for different reasons than those expressed by the judge. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (holding that a judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons).

III

Defendant contends that this court should vacate his conviction and remand his case for a jury trial because he faced serious quasi-criminal and civil consequences, including incarceration for more than six months as a direct result of the multiple charges pending against him. Judge Neustadter in his December 5, 2005 opinion stated:

[W]ith respect to the jail sentence, the Court below did not specify whether the 90 days of incarceration imposed on the Driving With a Suspended License charge was to run concurrently or consecutively to the 180 day sentence imposed on defendant for violating N.J.S.A. 39:3-40 is to run imposed on defendant is now 180 days. Defendant can serve up to 90 days of the sentence at an alcohol or drug rehabilitation program. However, that privilege will not be permitted until defendant has served at least 90 days in the county jail. Finally, because defendant has only been sentenced to 180 days of incarceration, his right to a trial by jury has not been infringed upon.

The Supreme Court addressed this precise issue in State v. Hamm, 121 N.J. 109, 111 (1990), certif. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991), holding "that the statutory penalties for DWI are not so severe as to clearly reflect a legislative determination of a constitutionally 'serious' offense requiring jury trial."

Under the Federal Constitution, persons charged with a crime are entitled to a trial by jury, whereas persons charged with a petty offense are not. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). "The maximum punishment authorized for a petty offense is below that authorized for crime, and a conviction for a petty offense carries none of the consequential civil disabilities which follow upon a conviction for crime." State v. Owens, 54 N.J. 153, 157 (1969). To determine whether an offence is a crime or a petty offense, the only reliable test is "the severity of the authorized punishment." Id. at 160.

The State concedes that the defendant would be entitled to a jury trial if the aggregate sentence for the convictions of his petty offenses arising out of the same transaction exceeded six months. This comports with Hamm, supra, Owens, supra, and Blanton v. North Las Vegas, 489 U.S. 538, 542, 109 S. Ct. 1289, 1293, 103 L. Ed. 2d 550, 556 (1989) (citing Baldwin v. New York, 399 U.S. 66 26 L. Ed. 2d 437, 90 S. Ct. 1886 (1970)) ("defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months"). However, the defendant incorrectly argues that he faces nine months jail time on his two convictions. As determined by Judge Neustadter on de novo review, he was sentenced to 180 days incarceration for driving under the influence, of which ninety days could be served at an in-patient facility, and he was sentenced to a concurrent term of ninety days on the driving with a suspended license charge.

Defendant also argues that the statutory penalties for a DUI conviction are so excessive and "severe" that he was entitled to a jury trial. The Court in Hamm considered whether "the Legislature has 'packed'" the offense of DWI so that it must be regarded as "serious" for Sixth Amendment purposes. Hamm, supra, at 123-27. The Court rejected that argument and determined "[t]he legislative and judicial history of DWI in New Jersey shows . . . its consistent treatment as a non-criminal offense." Id. at 129. The Legislature has amended the DWI statute since Hamm was decided, but it never enhanced the term of imprisonment to exceed six months and has continued to treat the DWI statute as a "non-criminal offense."

 
We are satisfied, therefore, that any reconsideration of Hamm must come from the Supreme Court. Accordingly, Hamm continues to control this issue. Defendant was not entitled to a jury trial.

Affirmed.

Defendant was originally charged under four complaints. The dismissed charges included failure to exhibit documents, in violation of N.J.S.A. 39:3-29, displaying fictitious tags, in violation of N.J.S.A. 39:3-33, and being under the influence of a controlled dangerous substance while operating a motor vehicle in violation of N.J.S.A. 2C:35-10b.

Defendant's Abstract of Driving History Record, admitted into evidence in the municipal court, establishing defendant's status as a suspended driver on December 19, 2005 based on multiple offenses, is not in dispute on this appeal.

In very basic terms, the GC/MS intakes chemical mixes into the machine. Through the processes of separation, ionization, and mass analyzation, the molecular structure of the mix is detected through a mass spectrum. "Identification of a compound based on it's mass spectrum relies on the fact that every compound has a unique fragmentation. . . . A library of known mass spectra which may be several thousand compounds in size is stored on the computer and may be searched using computer algorithms to assist the analyst in identifying the unknown." Office of the Attorney General, State of California, Bureau of Forensic Services: An Introduction to Gas Chromatography/Mass Spectrometry (GC/MS) http://ag.ca.gov/bfs/toxlab/gcsm.htm.

(continued)

(continued)

26

A-2155-05T2

 

October 2, 2006