STATE OF NEW JERSEY v. RICHARD PESZEK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3050-04T23050-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD PESZEK,

Defendant-Appellant.

_____________________________________________________

 

Submitted October 12, 2006 - Decided October 26, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 38-2004.

Matthew W. Reisig, attorney for appellant (James P. Brady, on the brief).

Bruce J. Kaplan, Middlesex County Prosecu-tor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of driving while intoxicated, N.J.S.A. 39:4-50, in the East Brunswick Municipal Court, resulting in a $505 fine, the suspension of defendant's driving privileges for two years, and the imposition of a term of thirty days community service, which included defendant's incarceration for forty-eight hours to be served at an Intoxicated Drivers Resource Center. His appeal to the Law Division yielded the same results.

On appeal to this court, defendant presents a single argument for our consideration:

THE STATE FAILED TO PROVE ITS PER SE CASE BEYOND A REASONABLE DOUBT BECAUSE THE TEST WAS FLAWED AS THE OPERATOR FAILED TO OPEN AND VERIFY THE VOLUME OF THE AMPULE IN STEP #3, AND THE COURT BELOW ERRED WHEN IT INFERRED THAT THIS WAS DONE, EVEN THOUGH THERE WAS NO SUCH TESTIMONY.

We reject this argument and affirm.

The State sought to prove that defendant violated N.J.S.A. 39:4-50 by presenting evidence of the results of a breathalyzer examination. To obtain the benefit of the results of such a test, the State is obligated to demonstrate three things: "the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures." Romano v. Kimmelman, 96 N.J. 66, 82 (1984). The results of the breathalyzer examination in question indicated that defendant had a blood alcohol reading of 0.14%, which would permit the finding of guilt if all the requirements of Romano were met.

Defendant's argument focuses solely on the third aspect of the Romano holding, and specifically whether the operator properly performed "Step #3" of the test. Defendant claims that the operator never "checked for volume after opening the test ampule in question." When asked to describe Step #3, the operator testified at one point that he "gauged the test ampule" and "verified that it was correctly gauged," and, at another point, he said that he "gauged, opened, verified volume, and inserted in the right hand holder."

Defendant presented the testimony of David Ditze, an expert in the administration of breathalyzer tests. Ditze critiqued the operator's description of his testing of the equipment and explained why he believed the operator "fatal[ly]" erred in performing Step #3 for the following fashion:

Well, [the operator] stated that he gauged and verified the volume. I don't know when he verified the volume, because there was no testimony as to when he opened the test ampule. He stated that he placed it in the right hand holder. So, to say that we have a test ampule that was not opened, I have to say he just maybe had forgotten to say that he opened it. However, by opening it, the incorporation of verifying volume has been placed in this particular checklist because it was changed a couple of years ago to make sure that the officers testify that after they open it to verify the volume. So, the testimony, the way it came out was he may have verified the volume and then opened the test ampule. I don't know that, the [c]ourt doesn't know that.

The municipal judge interpreted the operator's testimony and the criticism offered by the defense expert in a sensible way. That is, the municipal judge concluded that although the operator may not have fully or thoroughly described his testing of the instrument, it did not necessarily follow that the operator failed to conduct each appropriate step in the process. Instead, the municipal judge reasonably discounted defendant's criticism of the manner in which the operator described his testing of the instrument and drew a reasonable inference that the operator took all the required steps. In concluding that the instrument was administered properly, the municipal judge observed that the officer "testified in detail as to the steps followed almost one year later." He explained that as a response to the objections of defense counsel, the operator did not read from the checklist but instead, from memory, explained how he administered the equipment. As a result, in rendering his findings, and in "[t]aking the totality of the entire testimony of the officer concerning the performance of the administration of the breath test," the municipal judge found that it was performed in accordance with the mandates of the case law on this subject. Since the premise for the opinion of the defense expert was based upon his criticism about the way in which the operator described what he did (i.e., Ditze stated, "I have to say he just maybe had forgotten to say that he opened it") and since the municipal judge found that the operator did all those things required by law, we agree with the State's position that the ground upon which the defendant bases his argument is without substance.

In conducting his de novo review, the Law Division judge essentially adopted those same findings, which, for the reasons set forth above, are entitled to our deference. State v. Locurto, 157 N.J. 463, 471-72 (1999).

Finding no substance in defendant's argument, we affirm.

 

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A-3050-04T2

October 26, 2006