STATE OF NEW JERSEY v. KIMBERLY REINERTSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0713-09T40713-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY REINERTSEN,

Defendant-Appellant.

_________________________________________________________

Argued June 2, 2010 - Decided July 20, 2010

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-03-09.

Craig A. Borgen argued the cause for appellant (Calcagno & Associates, attorneys; Mr. Borgen, on the brief).

Dyanne Lluch, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Lluch, of counsel and on the brief).

PER CURIAM

Defendant Kimberly Reinertsen was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), in the Saddle Brook Municipal Court; on appeal to the Law Division de novo, she was again convicted. The Law Division judge imposed the same sentence as the municipal court judge -- a suspension of defendant's driver's license for two years; suspension of the vehicle's registration for two years; a fine of $757; thirty days of community service; two days at an Intoxicated Driver Resource Center; and other appropriate financial penalties. On appeal, defendant raises the following issues for our consideration:

POINT I: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL court's denial of Reinertsen's motion to suppress

A. THE STATE FAILED TO PROVE THE "PRESENT INTENT" ELEMENT AS TO FUTURE OPERATION

B. THE STATE FAILED TO PROVE THAT REINERTSEN OPERATED HER VEHICLE WHILE INTOXICATED BEFORE THE VEHICLE ARRIVED AT ITS PARKED LOCATION

C. THE STATE FAILED TO MEET ITS FOUNDATIONAL PROOFS TO ADMIT THE BREATHALYZER READINGS

POINT II: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S DECISION TO PERMIT THE STATE TO INTRODUCE THE BREATHALYZER RESULTS

A. THE BREATH TESTING RESULTS AGAINST REINERTSEN SHOULD HAVE BEEN SUPPRESSED DUE TO THE STATE'S FAILURE TO FOLLOW THE OFFICIAL INSTRUCTIONS FOR THE BREATH TESTING INSTRUMENT

B. THE BREATH TEST RESULTS USED BY THE STATE ARE SCIENTIFICALLY UNRELIABLE AND SHOULD HAVE BEEN EXCLUDED BY THE TRIAL COURT

POINT III: THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S FINDING THAT REINERTSEN WAS GUILTY OF DRIVING WHILE INTOXICATED

A. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REASONABLE SUSPICION, LET ALONE PROBABLE CAUSE, EXISTED TO MAKE A MOTOR VEHICLE STOP

B. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REINERTSEN WAS GUILTY OF DRIVING WHILE INTOXICATED

C. GOMEZ'S TESTIMONY WAS WILDLY INCONSISTENT AND THE APPELLATE COURT ERRED IN FINDING THAT PROBABLE CAUSE EXISTED TO JUSTIFY THE ARREST

POINT IV: THE CANADIAN DOCUMENTS WERE NOT PROPERLY AUTHENTICATED AND, AS SUCH, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE

POINT V: THE BREATHALYZER RESULTS SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AS THE AMPOOLES [sic] UTILIZED WERE NOT INTENDED FOR USE IN THE DRAEGER MODEL 900 AND ARE NOT ACCURATE

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

At approximately 2:00 a.m. on September 29, 2007, New Jersey State Trooper Emilio Gomez was patrolling Route 80 when he observed defendant's white Audi disabled on the shoulder of the opposite side of the road. Defendant was "walking around outside the vehicle by the guardrail." Gomez made a u-turn, pulled up behind defendant's car, and observed a man attempting to change a flat tire on the front passenger wheel. When Gomez approached defendant, he detected alcohol on her breath, her eyes "were watery and bloodshot[,]" and she was "swaying." He asked who was driving the vehicle, and defendant replied, "I am"; he asked defendant if she had anything to drink, and she responded "one drink."

Gomez then directed defendant to perform two field sobriety tests, which she failed. He also conducted a "Horizontal Gaze Nystagmus" test. Based upon his observations and defendant's admission that she was driving the Audi, Gomez arrested her for DWI. En route to the Totowa barracks, Gomez testified that the patrol "car was filled with the odor of an alcoholic beverage . . . ." Defendant admitted to Gomez that she drank a Long Island Ice Tea and a Tequila shot at a bar earlier in the evening.

Defendant consented to the administration of breath tests that were conducted by Sergeant Ernie Giampietro at 3:27 a.m. and 3:35 a.m. Giampietro, a certified Breathalyzer operator for fifteen years, administered two tests using the Model 900 Breathalyzer manufactured by National Draeger, Inc (the Model 900). Giampietro identified a number of documents intended to demonstrate that the Breathalyzer was in proper working order. Defendant lodged an objection to some of the documents which we discuss in greater detail below. Concluding the documents were subject to the business records exception to the hearsay rule, see N.J.R.E. 803(c)(6), the judge admitted them into evidence. Prior to administering the Breathalyzer test, Giampietro ensured "that there were no radios or cell phones" in the vicinity. He testified that he administered the tests utilizing the proper procedures, which he described in detail. The two tests resulted in blood alcohol concentration (BAC) readings of .08.

Defendant testified that on the night in question she was hindered in her ability to perform the field sobriety tests because of past medical problems with her left knee and ankle. She introduced a medical report in evidence indicating that she had surgery to repair a torn meniscus in her left knee in November 2006. In May or June of that same year, she had surgery on her ankle.

Defendant claimed she was out with coworkers at Ebony, a bar in Garfield; she had not eaten since 2:00 p.m., and consumed a Long Island Iced Tea between 12:15 a.m. and 1:00 a.m., and a Tequila shot forty-five minutes later. She was driving her coworker and his friend home when her tire went flat. Defendant pulled to the side of the road and wanted to "call AAA," but her coworker insisted on changing the tire. They had difficulty removing the tire, however, and were on the side of the road for almost an hour before Gomez pulled up in the trooper car. Defendant further claimed that while at the barracks, and in the room with Giampietro and the Breathalyzer machine, she "plugged in" her cell phone and made several phone calls. Her cell phone records were introduced into evidence, and they corroborate the fact that calls were placed from her cell phone while she was at the barracks.

Based on this testimony and the documentary evidence, the municipal court judge found defendant guilty of DWI; she appealed to the Law Division. On March 9, 2009, after hearing oral arguments, the Law Division judge remanded the matter to the municipal court. Ostensibly based on our holding in State v. Popovich, 405 N.J. Super. 324 (App. Div. 2009), the judge entered an order requiring the municipal court judge to "hear[] de novo testimony of . . . Giampietro, so that defendant's expert may have the opportunity to observe the testimony of the breathalyzer operator and testify as an expert on behalf of defendant . . . ."

Giampietro again testified on remand regarding his operation of the Breathalyzer. Defendant produced Herbert H. Leckie as her expert. He testified as to the many variables that could affect a reading produced by the Model 900, though he could not testify to a reasonable degree of scientific certainty that any particular malfunctions impaired the accuracy of the Model 900 used on defendant. Leckie further criticized the dependability of the field sobriety tests administered to defendant by Gomez. The municipal court judge concluded that none of the testimony on remand caused him to change his earlier decision.

After considering the arguments of counsel, the Law Division judge reviewed the evidence and "was satisfied that . . . defendant was indeed operating the vehicle[,]" that defendant "admitted to drinking[,]" and that the Breathalyzer tests were administered within "a reasonable time" of defendant's operation. The judge further determined that Gomez's observations of defendant during the field sobriety tests "were certainly substantial enough for him to find probable cause and for him to make a determination that the [B]reathalyzer test should be administered." The judge also concluded, however, that "those observations" did not support a finding "independently beyond a reasonable doubt that [defendant] was intoxicated . . . ."

Regarding the reliability of the test results, the judge determined that "the State met its burden under the case law of proving that the [B]reathalyzer operator was certified to operate [the machine] and that the machine was operated properly." The judge discounted defendant's claim that her cell phone usage may have interfered with the proper operation of the Breathalyzer, finding that she was not using the cell phone when the test was administered.

Regarding Leckie's testimony, the judge concluded "there was no proof that any of [his] hypothetical scenarios occurred." After finding defendant guilty of DWI with a BAC of .08, the judge imposed the same sentence as did the municipal court judge. This appeal followed.

II.

In Points I(A) and (B), and III (A), (B), and (C), defendant challenges the Law Division judge's legal conclusions drawn from the evidence regarding defendant's initial encounter with Gomez on Route 80. Defendant essentially argues that the initial "motor vehicle stop" was not supported by "reasonable suspicion," and that the State failed to prove she was operating the vehicle so as to justify both her arrest and, ultimately, her conviction of DWI.

To the extent that defendant challenges the Law Division's reliance upon the "wildly inconsistent" testimony of Gomez -- Point III(C) -- we reiterate our standard of review, i.e., whether the findings were supported by "sufficient credible evidence" in the record. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues.

[Locurto, supra, 157 N.J. at 474 (citations omitted).]

We are bound by the trial court's finding unless it "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162. In this case, the Law Division judge implicitly accepted Gomez's factual testimony regarding his encounter with defendant, and we defer to her findings.

Gomez was entirely justified in investigating why defendant's vehicle was stopped on the shoulder of Route 80 at 2:00 a.m., and in making the inquiries he made at that time. The trooper was exercising his "community caretaking" function when he initially stopped his police cruiser. See State v. Elders, 192 N.J. 224, 248 (2007) (describing "responding to a disabled vehicle to provide assistance" as an example of the "community caretaking" function). His inquiries thereafter were legitimate "field inquiries" that required no reasonable, articulable suspicion that defendant had committed a motor vehicle offense or a crime. See id. at 246 ("'[F]ield inquiries' are permitted even if they are not based on a well-grounded suspicion of criminal activity." (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002))).

Defendant argues that there was insufficient proof that she intended to operate the car in the near future -- because the tire was flat and she testified that her male companion intended to drive home -- or that she had operated the car with a BAC of .08 in the recent past. Thus, she contends that Gomez lacked probable cause to arrest her for DWI, and that the same lack of evidence raises a reasonable doubt that she was operating the vehicle within the meaning of N.J.S.A. 39:4-50(a) (defining the offense as the "operat[ion of] a motor vehicle while under the influence of intoxicating liquor . . . [or] with a blood alcohol concentration of 0.08%").

As to defendant's arrest, we have held that "'the yardstick for making [an] arrest for [DWI] . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). To establish probable cause to arrest for DWI, the State need only prove "by a fair preponderance of the evidence" that defendant was legally intoxicated and operating the vehicle. Karins v. Atlantic City, 152 N.J. 532, 559 (1998) (citations omitted). See State v. Wright, 107 N.J. 488, 490 (1987) (holding that "probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol" was sufficient for arrest and refusal conviction) (emphasis added). In this case, Gomez's observations and defendant's admissions supplied all the probable cause necessary for her arrest.

We need not parse the factual circumstances presented under the myriad of cases that have considered the issue of operation. Whether the State produced sufficient "evidence of [defendant's] intent to drive or move the vehicle at the time" Gomez confronted her, State v. Daly, 64 N.J. 122, 125 (1973), is not dispositive, though we note that the trial court was free to disregard defendant's self-serving testimony that her male friend was going to drive home, or that the flat tire could not be easily repaired.

Instead, the circumstances here are more like those presented in State v. Dickens, 130 N.J. Super. 73 (App. Div. 1974). There, the defendant "was found asleep in his automobile on the shoulder of Interstate Highway 287 . . . in the early [morning] hours . . . ." Id. at 75. The defendant was alone, the headlights were on, and the engine was running. Ibid. Rejecting the defendant's argument that the proofs were insufficient regarding his operation of the car, we concluded that since the "[d]efendant was found in his automobile on the shoulder of a superhighway, which could have only been reached by operation of the automobile to the point where it was found[,]" and his admission "that he had been drinking in a bar[,]" among other things, made "[t]he inference . . . inescapable that [the] defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor." Id. at 78 (emphasis added).

Here, defendant was standing next to her car on the shoulder of an interstate highway at 2:00 a.m. She admitted that she was driving the car and that she previously had a drink in a bar. She exhibited signs of intoxication. The reasonable inference drawn by the trial judge was that defendant had driven the car to that spot, and, that within a reasonable time thereafter, her BAC was .08, a level sufficient to prove her guilt under N.J.S.A. 39:4-50(a).

III.

We turn to the remaining points raised on appeal, all of which deal with the admissibility of the Breathalyzer test results. Defendant claims they are unreliable because the State "failed to meet its foundational proofs" -- Point I(C); the State failed "to follow the official instructions for the breath testing instrument" -- Point II(A); the results were "scientifically unreliable," -- Point II(B); certain foundational documents were "not properly authenticated" -- Point IV; and, the ampoules used "were not intended for use" in the particular model of Breathalyzer -- Point V.

Breathalyzer test results are admitted into evidence when three conditions are met: (1) the Breathalyzer operates properly; (2) the test was administered by a qualified operator; and (3) the test was administered properly. Romano v. Kimmelman, 96 N.J. 66, 81 (1984); Popovich, supra, 405 N.J. Super. at 327; State v. Maure, 240 N.J. Super. 269, 279 (App. Div. 1990), aff'd o.b., 123 N.J. 457 (1991). The State must prove each condition by "'clear and convincing'" evidence. Romano, supra, 96 N.J. at 90.

(a)

Defendant claims that the "foundational proofs" to admit the test results were lacking because the State failed to prove she drove the car within a reasonable time of the test's administration. We have already addressed that point above; in short, the judge found otherwise and there is no basis to disturb that finding. See Locurto, supra, 157 N.J. at 474.

Defendant next claims in Points II(A) and V that the State failed to "follow the official instructions" for the Model 900 machine because it failed to use the specific ampoules manufactured for that machine. Defendant cites to the instruction manual issued by the machine's manufacturer, National Draeger, Inc., which states in part, "National Draeger can take no responsibility for the precision and accuracy of the instrument unless genuine Breathalyzer ampoules are used." We view the argument to be of insufficient merit to warrant any extended discussion. See R. 2:11-3(e)(2).

In State v. Chun, No. 58, 879, 2 007 LEXIS 39, *3-6 (N.J. Feb. 13, 2007), Judge King, serving as special master appointed by the Supreme Court, made extensive factual findings regarding the reliability of Draeger's Alcotest 7110 MKIII, the successor instrument to the Breathalyzer. He explained the evolution of the decision to change machines, and the extensive studies done prior to selection of the Alcotest system. Id. at *24-35. In this regard, Judge King took note of National Draeger's decision to cease production of new machines, spare parts, and ampoules. Id. at *27. There was nothing to indicate, however, that Breathalyzer results were compromised because law enforcement officials needed to use ampoules manufactured by other companies as a result. See id. at *26-27. There is nothing in this record, including Leckie's testimony, which supports defendant's claim in this regard.

In Point II(B), defendant contends that the Breathalyzer test results were "scientifically unreliable." In this regard, she relies extensively upon Leckie's testimony before the municipal court, and argues "[t]he State's failure to eliminate all potential causes of deviation renders the readings in this case unreliable." However, this argument ignores the Law Division judge's conclusion that Leckie's testimony was not persuasive because he could not state with any reasonable degree of certainty that something had actually occurred that made the tests results in this case unreliable. See State v. Benas, 281 N.J. Super. 251, 255 (App. Div. 1995) (rejecting defense expert's opinion regarding reliability of breath test results as "speculative"). The judge's factual findings in this regard are supported by the record, and we have no basis to disturb her conclusions. See Locurto, supra, 157 N.J. at 474.

(b)

Lastly, in Point IV, defendant contends that the "Canadian documents were not properly authenticated" and should not have been admitted into evidence. Defendant argues that without proper documentation, the State could not prove that the Canadian-produced ampoules actually used in this case were properly constituted and yielded scientifically reliable test results. The State argues that the "Canadian documents" were properly admitted pursuant to N.J.R.E. 902(c); alternatively, it contends that these documents are not "core foundational documents" upon which the Breathalyzer test results were dependent, and, therefore, the results are reliable and admissible even without these documents.

In the municipal court, the prosecutor introduced copies of a number of documents into evidence including: the Breathalyzer checklist completed by Giampietro during the administration of the breath tests to defendant; Giampietro's training certification that indicated he had completed his most recent "refresher course[]" in July 2007; two breath testing instrument inspection certificates (BTIICs), dated August 15 and October 2, 2007; and a "CERTIFICATION OF ANALYSIS 0.10 PERCENT BREATH ALCOHOL SIMULATOR SOLUTION," dated December 28, 2005. The judge also admitted into evidence, over defendant's objection, a "Certificate of an Analyst," and an attached analysis report (the Canadian documents).

The Certificate of an Analyst was signed by "Analyst" Robert M. Langille and appears on the letterhead of the "Ministry of Community Safety and Correctional Services," Toronto, Ontario, Canada. Langille, a "Ph.D. . . . designated by the Solicitor General of . . . Ontario" certified:

THAT on the 20th day of April, 2007, [he] completed an analysis of a sample of a . . . Breath Test Solution intended for use with the Breathalyzer Model 900 and 900A . . .;

THAT the said alcohol standard was identified as CALWAVE Inc. . . . Test Solution, Lot Number 10296 and

THAT [he] found the said solution to be suitable for use with the said approved instruments.

The attached certificate of analysis, from Bodycote Testing Group, Ontario, Canada, references Calwave and the same lot number.

Defendant argued before the municipal court judge and the Law Division judge that the Canadian documents were not self-authenticating because they failed to comply with N.J.R.E. 902(c). The municipal court judge explicitly rejected the argument, and the Law Division judge indicated she was "satisfied that the . . . State Police used the ampoules to test the [B]reathalyzer[,]" and that there was "no evidence that they were substandard or deviated substantially from . . . any ampoules made in this country." She further found "there was no expert testimony on a problem with Canadian ampoules[,]" and she was "making the assumption that the State Police were using ampoules that appropriately tested the [B]reathalyzer."

Under our Rules of Evidence,

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

. . . .

. . . .

(c) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, provided that either an apostille is affixed to the document certifying its genuineness pursuant to international agreement to which the United States is a party or the document is accompanied by a final certification as to the genuineness of the signature and official position (1) of the executing or attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. . . . If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

[N.J.R.E. 902.]

It is undisputed that Langille's certification was not accompanied by either an apostille or a "final certification." However, the State argues that defendant, having been supplied with the Canadian documents in discovery well in advance of trial, had a "reasonable opportunity . . . to investigate the authenticity" and, therefore, good cause exists to treat them as presumptively authentic. The Law Division judge did not explicitly reference the Rule, nor did she find good cause existed for admitting the documents into evidence.

"Rule 902(c) follows Fed. R. Ev. 902(3)." Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 902 (2010). The federal rule contains the same "good cause" language. Some federal cases have applied the presumption of authenticity when good cause has been demonstrated. See, e.g., United States v. Torres-Reyes, 46 Fed. Appx. 925, 927 (10th Cir. 2002) (finding good cause to admit a foreign birth certificate that was not properly authenticated under the rule). Other cases, however, have reached the opposite result. See, e.g., United States v. Perlmuter, 693 F.2d 1290, 1293 n.2 (9th Cir. 1982) (finding foreign criminal convictions and fingerprints were not properly authenticated and no good cause was demonstrated). We need not extensively survey the landscape of decisions, however, because in this case, the State did not offer, nor has it yet supplied, any good cause for why the Canadian documents were not properly authenticated. As a result, we agree with defendant that they should not have been admitted into evidence.

If evidence was improperly admitted before the municipal court, the Law Division judge has an obligation to strike the evidence and consider whether or not the State has carried its burden of proof. See State v. Sparks, 261 N.J. Super. 458, 461 (App. Div. 1993); accord State v. Musgrave, 171 N.J. Super. 477, 479 (App. Div. 1979). Since the Law Division judge failed to do so, we must consider whether the State has met its burden of proof as to the reliability of the Breathalyzer results without reference to the Canadian documents. We conclude it has, and therefore we affirm defendant's conviction.

In Maure, supra, we considered whether the State could sustain its burden of proof regarding the admissibility of Breathalyzer test results in "the absence of a properly authenticated [ampoule] assay certificate . . . ." 240 N.J. Super. at 273. We concluded "that the correct readings yielded by random sample ampoules in tests performed by State Police Coordinators, under controlled circumstances, are sufficient to support the inference that the ampoule used in examining the defendant was properly constituted and mixed to correct proportions[,]" id. at 280-81, though "[w]e [d]id not suggest that introduction of State Police Coordinators' certification alone without reference to the assay certificate [wa]s the preferred practice." Id. at 285. Nevertheless, we concluded that "the State Police Coordinators' certifications provided prima facie proof the ampoules used in testing the defendants were properly constituted." Id. at 286 (emphasis omitted). We have subsequently said, "Maure effectively put to rest challenges to the test amp[o]ules as a productive basis of attacking the reliability of [B]reathalyzer results." Benas, supra, 281 N.J. Super. at 255.

In this case, the State introduced Giampietro's testimony and the "Alcohol Influence Report" he authored, which documented that the two tests administered to defendant were performed with ampoules from "Lot Number 10296." Giampietro identified two State Police Coordinator certifications, the BTIICs, dated August 15 and October 2, 2007. He explained the random ampoule testing procedure used by the State Police, and identified the results reflected in these two BTIICs. In short, in August and again in October, utilizing the same machine used on defendant, the State Police performed tests using ampoules from lot number 10296, and, in both instances, the machine tested "within acceptable tolerance." In addition, the "simulator solution[s]" used in both tests came from a lot of samples that were the subject of an independent assay certification that was in evidence. Based upon this documentary evidence and Giampietro's testimony, we conclude the State met its burden of proof regarding the reliability of the Breathalyzer results independent of the unauthenticated Canadian assay certification.

 
Affirmed.

This was defendant's second DWI conviction, though this arrest apparently preceded the arrest that led to her first conviction. The transcript reveals the municipal court judge stayed the sentence pending appeal; however, the court docket, an exhibit in defendant's appendix, indicates that only the fine was stayed. We cannot discern from the transcripts or exhibits whether the Law Division judge stayed any aspect of defendant's sentence.

We have not been provided with the transcript of the hearing. Although not directly before us, we are compelled to comment on the necessity of this order. When the parties appeared in municipal court for the remand hearing, the judge acknowledged being "confused" by the remand order since defendant "waived the expert because . . . [she] couldn't afford it." Defense counsel responded that he had not "waive[d] [his] expert[,]" but acknowledged that defendant "couldn't afford to bring [her expert] back after having paid him to review the transcripts." We view our holding in Popovich, supra, 405 N.J. Super. at 328, which dealt with the improper sequestration of a defense expert, to be inapplicable to the facts presented here.

In Points I and III, defendant makes a number of similar contentions, but argues them in the context of her motion to suppress and in the context of her trial respectively. We are advised that defendant's motion to suppress was denied by the municipal court judge before trial, although we have not been provided with any transcript of the proceedings or any order in that regard. Moreover, the Law Division judge did not address any of the issues presented in the context of defendant's motion to suppress. We consider the substance of defendant's arguments without regard to the specific procedural posture of the case when they arose.

In a footnote in her brief, defendant seeks to argue that Dickens is no longer viable after the Supreme Court's holding in State v. Tischio, 107 N.J. 504, 510 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988). We disagree. Under the facts presented here, the trial judge implicitly determined that defendant had been operating the vehicle between the times she left the bar and when Gomez arrested her, thus making the administration of the Breathalyzer test within a reasonable time of her operation.

(continued)

(continued)

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