STATE OF NEW JERSEY v. ROBERT SLIZEWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3408-07T43408-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT SLIZEWSKI,

Defendant-Appellant.

______________________________________________________

 

Argued March 23, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 04-17-07.

Matthew T. Priore argued the cause for appellant.

Charles Cho, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Mr. Cho, of counsel and on the brief).

The opinion of this court was delivered by

R. B. COLEMAN, J.A.D.

Defendant, Robert Slizewski, appeals from an order of the Law Division vacating a municipal court order suppressing evidence and from the related conviction for driving while intoxicated (DWI). He raises five arguments in support of his appeal: (1) that the Law Division judge erred in reversing the municipal court's order suppressing evidence; (2) that he was illegally ordered to exit his car without reasonable suspicion; (3) that the police did not have probable cause to arrest him for DWI; (4) that evidence not provided in discovery was improperly admitted at trial; and, (5) that his breathalyzer test results should not have been admitted into evidence because the test was not properly administered. For the reasons that follow, we affirm.

In a memorandum submitted to the Bergen County Prosecutor dated August 26, 2005 (the Memo), Lieutenant Edward M. Weber of the Waldwick Police Department requested and provided justification to set up a DWI checkpoint in Waldwick, New Jersey, beginning Friday October 28, 2005 at 10:00 p.m. and continuing until Saturday October 29, 2005 at 4:00 a.m. (the checkpoint). In the Memo, Weber noted that the Waldwick Police Department had used the same site in the past and he provided a factual basis for the imposition of the checkpoint. The proposed checkpoint would be on Wycoff Avenue, a four lane, bi-directional roadway, utilizing the two center lanes as a DWI staging area and the outer two lanes for through traffic. Any necessary field sobriety tests were to be conducted on the level concrete curbs on either side of the roadway.

The Memo disclosed that police officers would distribute to motorists information on DWI and on seatbelt use. Every third motorist was to be stopped briefly, unless traffic delays of more than five minutes warranted additional spacing. The Memo added that "[a]s traffic volume decreases during the later hours of the evening, we will stop every vehicle that passes through the checkpoint." On September 12, 2005, the checkpoint proposal was approved by the Bergen County Prosecutor's Office.

The officers participating in the checkpoint were told that "greeting officers" located at each end of the checkpoint should stop each vehicle momentarily to distribute pamphlets on either drunk driving or seatbelt use; they were to direct every third vehicle to an internal checking area, unless traffic required a higher or lower frequency of vehicle stops. If an officer had a reasonable suspicion that a motorist was committing a motor vehicle violation, that motorist would be taken out of the sequence and sent to the internal checking area.

On October 28, 2005, the checkpoint was established with signs indicating that the checkpoint was ahead. A taper of traffic cones marked the eastbound and westbound approaches, and police cars and portable lights were set in place. Officer Peter Tiernan kept a log of the cars traveling eastbound through the checkpoint. He testified that Sergeant Anthony Grego, also assigned to the eastbound checkpoint, momentarily stopped each car to explain what was occurring. Although Officer Tiernan failed to mark each car that was stopped in sequence, he noted each car stopped out of sequence with an asterisk.

Defendant's vehicle was stopped out of sequence at 12:04 a.m. on October 29, 2005, when the greeting officers noticed that defendant smelled of alcohol. Defendant was sent to the internal checking area where Officer Michael Tuttle asked him to produce his driving documents. The officer noticed the smell of alcohol on defendant's breath, that defendant's eyes were watery and glassy, and that his clothes were disheveled. Given those observations, Officer Tuttle asked defendant to park and exit his vehicle, and to accompany Officer Troy Seifert approximately fifty feet to a level, cement pad in front of a building. Officer Tuttle observed defendant sway as he walked. He asked defendant if he had any injuries that would not allow him to perform field sobriety tests. Defendant said he did not.

Officer Tuttle first asked defendant to perform a balancing test, which required defendant to stand with one foot in front of the other while the officer provided instructions and demonstrated. Defendant started to perform the test before the officer had finished giving him instructions, and Officer Tuttle told defendant to wait until he was finished. Then Officer Tuttle demonstrated the "walk and turn" test by walking heel-to-toe and counting out loud, turning, and taking nine steps back. When defendant tried to perform the test, he stopped walking heel-to-toe after his second step and repeatedly moved his feet to regain balance. After taking the ninth step, defendant turned and acted as though he had finished the test, until Officer Tuttle reminded him that he needed to walk back. Defendant returned without walking heel-to-toe. During this test, defendant remarked that he had friends who were police officers, and he asked Officer Tuttle to be lenient and "give him a break."

Next, Officer Tuttle demonstrated the "one-leg stand" test to defendant. Despite the officer's instructions, defendant looked at the officer instead of his toe during his test. In addition, defendant put his foot on the ground numerous times. Officer Tuttle concluded that defendant was under the influence of alcohol and turned him over to Officer Seifert to be arrested.

Officer Tuttle had been a member of the police force for over twenty-four years, but he neither received formal training in conducting the field sobriety tests he administered, nor did he receive instruction on those tests since they were standardized. The officer did not utilize a point system in scoring the tests, and did not use the standardized instructions given by the National Highway Traffic Safety Administration (NHTSA).

As noted, defendant was arrested for DWI. Officer Seifert transported defendant to the Waldwick police headquarters, and during their journey, the officer detected the odor of alcohol coming from defendant in the back of the police car. Upon arriving at headquarters, defendant was read his Miranda rights and the DWI Standard Statement under N.J.S.A. 39:4-50.4a. Defendant agreed to submit to a breathalyzer test. Officer Seifert, a licensed and qualified breathalyzer operator, began the process of administering the test using a Model 900 Breathalyzer, serial number 8801175012. The test yielded readings of .15 percent blood alcohol level from the first breath sample, and .16 percent blood alcohol level from the second.

At approximately 1:17 a.m., on October 29, 2005, Officer Seifert conducted the drinking and driving report question-and-answer form. The defendant stated that he had injured hands and that he was sick, but he did not elaborate on the nature of his sickness. Defendant admitted to having three beers, but could not remember when he had his first or last drink. He was issued a summons for DWI, in violation of N.J.S.A. 39:4-50.

Defendant filed a motion to suppress all evidence seized in the case. The municipal court judge who heard the motion reserved judgment; then on April 27, 2006, the judge rendered an oral decision, granting plaintiff's motion. The judge reasoned that the checkpoint did not pass constitutional muster under the standard set forth in State v. Kirk, 202 N.J. Super. 28 (App. Div. 1985). On May 4, 2006, the judge issued an order memorializing his ruling, and on or about May 11, 2006, the State filed a notice of appeal in the Law Division, Bergen County. On August 23, 2006, oral argument was heard, whereupon the municipal court order of suppression was vacated. The matter was remanded for trial.

On May 8, 2007, the case proceeded to trial in the municipal court. The parties initially stipulated that all testimony and evidence from the motion to suppress hearing would be incorporated in the trial record, and defendant then moved to exclude the admission of an "after-certificate" that had not been previously provided in discovery. The State produced the document, and the judge, finding that the late production was not prejudicial, ordered a ten-minute recess to allow defendant and his expert to review the after-certificate before proceeding to trial.

Officer Seifert described in his testimony the procedure he used for administering the breathalyzer test to defendant. When he approached the breathalyzer, it was already turned on, so he opened the front flap and removed the atomizer and the go-no-go gauge. Officer Seifert recorded the serial number and ampule-control lot number for the first test. He verified that the temperature was at fifty degrees Centigrade; he gauged the reference ampule with the go-no-go gauge, verifying that the meniscus line was above the gauge, and gauged the test ampule with the go-no-go to verify that the meniscus was at the top of the gauge. The officer then opened the ampule, verified the volume and placed the right-hand holder of the breathalyzer machine. Next, Officer Seifert took out the bubbler, inserted the glass bubbler into the test ampule and connected the outlet. The officer then turned on the light for the machine, balanced the breathalyzer and set the blood-alcohol pointer on the start line.

Officer Seifert testified that he began the purge phase by turning the control knob to the take position, flushed the machine with the atomizer, and turned the control knob to the analyze position. He waited for the red-empty signal to appear for ninety seconds, then turned the light on for the breathalyzer and balanced the machine. The officer recorded the purge results on the alcohol influence report as .00 percent, placed the blood-alcohol pointer on the start line, and affixed a new mouthpiece on the breath tube and administered the test. On cross-examination, Officer Seifert stated that he used "the balance wheel in order to complete the setting of the pointer in Step No. 5 and No. 9 of both tests.

After the State rested its case, defendant's medical records were admitted into evidence, and the parties stipulated that the records were from a Dr. Michael Moore who, if he testified, would have stated that he treated defendant for an ankle fracture from September 1, 2005 to October 3, 2005, and that defendant had cancelled an appointment on October 20, 2005 because he was feeling better.

The defense then called Herbert Leckie, an expert in the field of breathalyzer operation and field-sobriety tests. Mr. Leckie testified that the sobriety tests administered by Officer Tuttle were deficient, in part due to the distracting commotion caused by the DWI checkpoint, but mostly because Officer Tuttle did not use the standardized instruction and scoring methods.

Mr. Leckie also identified what he considered to be deficiencies in the manner in which Officer Seifert conducted defendant's breathalyzer test. First, a breathalyzer operator is supposed to observe the defendant for a period of twenty minutes, without interruption, prior to the test, and it was unclear to Mr. Leckie whether this happened in this case. Second, Officer Seifert testified that "he utilized the balance wheel to set the blood-alcohol pointer to the start line," and if he had done this, "the test results would be improper and [un]reliable." Mr. Leckie suggested that the proper procedure involves "pull[ing] back on the clutch mechanism at the base of the blood-alcohol pointer, releas[ing] the tension on it, and manually mov[ing] it back to the start line." According to Mr. Leckie, if Officer Seifert's testimony was correct then "he took the instrument out of balance before administering the test." Finally, Mr. Leckie provided minor deficiencies in the test procedure, and stated that, to a reasonable degree of scientific certainty, these faults cast doubt as to the scientific reliability of the breathalyzer test in this case.

The State then re-called Officer Seifert, who testified, contrary to his earlier testimony, that he did not use the balance wheel to move the blood-alcohol point to the start line, but rather he did so manually. He stated that he had been confused during the earlier line of questioning regarding his use of the balance wheel, and that his response was in error.

Following the trial, on or about July 15, 2007, the municipal judge issued a written decision finding defendant guilty of DWI. He found that there was sufficient probable cause at the time to place defendant under arrest and that the field sobriety tests "were adequately and properly administered, notwithstanding the officer's lack of formal training, having acquired sufficient on the job training over a [twenty] year tenure on the police force." The judge also found that the breathalyzer test had been properly administered. On July 26, 2007, the judge sentenced defendant to various fines and penalties and suspended his driver's license for seven months. The judge stayed the suspension of defendant's driver's license pending an appeal to the Superior Court.

On or about August 1, 2007, defendant filed a notice of appeal to the Law Division. On February 1, 2008, the Law Division judge heard oral argument in the de novo review, and preserved defendant's right to appeal the ruling on the motion to suppress. In a written opinion dated February 4, 2008, the Law Division judge found "defendant guilty under the per se prong of the DWI statute[,]" and "impose[d] the same fines as [the municipal court.]" On February 29, 2008, an order was entered staying the suspension of defendant's driver's license pending an appeal to this court. On March 10, 2008, defendant filed a notice of appeal.

As already noted, defendant raises five arguments on appeal:

POINT I: THE STATE FAILED TO MEET ITS BURDEN OF PROOF THAT THE INITIAL STOP OF THE VEHICLE WITHOUT REASONABLE SUSPICION WAS CONSTITUTIONALLY PERMISSIBLE AND [THE LAW DIVISION] ORDER REVERSING [MUNICIPAL COURT] ORDER SUPPRESSING EVIDENCE MUST BE VACATED.

POINT II: THE SECONDARY POLICE OFFICER LACKED PROBABLE CAUSE OR REASONABLE SUSPICION BASED UPON HIS OBSERVATIONS TO ORDER MR. SLIZEWSKI OUT OF HIS VEHICLE TO PERFORM FIELD SOBRIETY TESTS.

POINT III: THE TWO FIELD SOBRIETY TESTS PERFORMED BY AN OFFICER THAT HAD ABSOLUTELY NO TRAINING IN CONDUCTING FIELD SOBRIETY TESTS DID NOT ESTABLISH PROBABLE CAUSE FOR THE DEFENDANT'S ARREST.

POINT IV: THE COURT BELOW ERRED BY FAILING TO BAR THE STATE FROM PRODUCING THE "AFTER" CERTIFICATE AT TRIAL WHICH HAD NOT PREVIOUSLY BEEN PROVIDED IN DISCOVERY.

POINT V: THE RESULTS OF THE BREATHALYZER TEST SHOULD HAVE BEEN EXCLUDED BECAUSE THE INEXPERIENCED OPERATOR FAILED TO PROPERLY ADMINISTER THE TESTS AND MR. SLIZEWSKI SHOULD BE FOUND NOT GUILTY ON THE PER SE VIOLATION BASED UPON THE READING.

I.

We begin our analysis by reciting the familiar standard of review. In the Law Division's review of cases appealed from the municipal court, it must "determine the case completely anew on the record made in the [m]unicipal [c]ourt, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We review only the Law Division's de novo trial, and not the municipal court trial, so long as the Law Division accorded deference to the credibility findings of the municipal court. Ibid. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). We must determine if there is sufficient credible evidence in the record to support the findings of the Law Division. Johnson, supra, 32 N.J. at 162; State v. Barone, 147 N.J. 599, 615 (1997). Thus, appellate review of convictions in cases such as this is exceedingly narrow.

II.

Defendant claims that the Law Division erred in reversing the municipal court order suppressing evidence because the State failed to establish that the checkpoint stop of defendant's vehicle was constitutional under the criteria articulated in Kirk, supra, 202 N.J. Super. at 28. Specifically, defendant argues that the construction and operation of the checkpoint did not comply with the standards delineated in Kirk because: (1) the officers had unfettered discretion; (2) the State failed to prove that vehicles were stopped in a systematic, nonrandom manner; (3) the previous use of that checkpoint location did not justify its use as a checkpoint on October 28-29, 2005; (4) the police did not provide sufficient advance notice of the checkpoint to the public; (5) the police dangerously instructed motorists who smelled of alcohol to drive from the initial stop to the internal checking area; (6) the initial stop of each car passing through the checkpoint was not minimal; (7) the State did not show that less intrusive methods were available; (8) there was no evidence offered that the checkpoint was more effective than any other procedure; and, (9) Sergeant Grego was the only officer who could testify from direct personal knowledge as to why defendant was sent to the internal checking area, and he did not testify at the suppression hearing. We reject these arguments.

In Kirk, "[w]e held that constitutional objections to a roadblock will be overcome if the following three criteria are met: (1) establishment of the roadblock by command authority; (2) careful targeting of a designated area at a specified time and place, based upon data justifying the site selection; and (3) adequate warnings to the public near the site of the roadblock, together with advance general publicity, and neutral, courteous procedures." State v. Flowers, 328 N.J. Super. 205, 216 (App. Div. 2000) (citing Kirk, supra, 202 N.J. Super. at 40-41). We also set forth thirteen additional factors to be considered in determining the constitutionality of a roadblock:

(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.

[Kirk, supra, 202 N.J. Super. at 46 (quoting State v. Deskins, 234 Kan. 529, 673 P.2d 1174, 1185 (1983)).]

We are satisfied the checkpoint was constitutional under Kirk. First, the officers operating the checkpoint did not have unfettered discretion because they were bound and abided by the procedures set forth in the Memo, which was approved in advance by the prosecutor's office. Compare Kirk, supra, 202 N.J. Super. at 37 (where officers set up a roadblock on their own volition and without restraint, the roadblock was found unconstitutional in part because of the officers' unfettered discretion). Further, the officers' brief stopping of each car was in adherence with procedures outlined in the Memo since officers were instructed to hand out DWI literature to each vehicle passing through the checkpoint.

The location and timing of the checkpoint properly targeted a specific area and time because supporting data showed that the location was a previously successful, and statistically DWI- related motor vehicle accidents and arrests were on pace to increase in Waldwick. While the State admits that it did not provide the public with advance notice of the checkpoint, "advanced publicity is not a prerequisite to the validity of a roadblock." Flowers, supra, 328 N.J. Super. at 216 (citing State v. DeCamera, 237 N.J. Super. 380, 383 (App. Div. 1989)). The checkpoint was outfitted with signs before the entrance illuminated by flood lights and police cars with flashing lights. This was in compliance with the Kirk factor specifying that the State should provide "proper on-the-scene warnings[.]" State v. Moskal, 246 N.J. Super. 12, 19 (App. Div. 1991) (such warnings include "a sign stating that the motorist is about to be stopped and the nature of the stop, flashing lights, police vehicles and uniformed officers").

There is no indication that the checkpoint was maintained in an unsafe manner. Moreover, the distribution of DWI literature to every driver is constitutionally permissible. State v. Reynolds, 319 N.J. Super. 426, 432 (App. Div. 1998) (the distribution of DWI information literature at DWI checkpoints is a reasonable and constitutional method of furthering the goal of drunk driving deterrence and is appropriately "an important object of establishing DWI roadblocks.").

Lieutenant Weber testified at the suppression hearing that DWI checkpoints had proven to be a more effective and the less intrusive method than roving DWI patrols. In addition, though Sergeant Grego did not testify at the suppression hearing, Officer Tiernan sufficiently testified as to defendant's condition at the time of the initial stop.

Defendant contends that this court should reconsider his motion to suppress in light of Sergeant Grego's trial testimony regarding the procedures at the checkpoint, and his limited memory of defendant before viewing his officer's log. We merely observe that Sergeant Grego's use of his log at trial to refresh his recollection was proper and that there was a proper foundation for such use of the log, in that he demonstrated an independent recollection and knowledge of his testimony. State v. Caraballo, 330 N.J. Super. 545, 557 (App. Div. 2000). See also N.J.R.E. 612.

III.

Defendant claims that Officer Tuttle's observations did not provide the requisite reasonable suspicion of intoxication to request that he exit his vehicle. We disagree.

As the Law Division judge recognized in his written opinion, the Fourth Amendment of the United States Constitution and Article I paragraph seven of the New Jersey Constitution, protect individuals from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498 (1986) (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605, 613 (1985); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). "'Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision.'" State v. Dickey, 152 N.J. 468, 475 (1998) (quoting Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89, 95 (1996)). Once an encounter between an individual and a police officer becomes a seizure, the officer needs "at least a reasonable articulable suspicion of some criminal activity to validate the seizure." State v. Contreras, 326 N.J. Super. 528, 541 (App. Div. 1999).

In fact, "[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Moreover, "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules.'" Rather, it requires an evaluation of "'the totality of the circumstances-the whole picture.'"

[State v. Zapata, 297 N.J. Super. 160, 172 (App. Div. 1997) (quoting Drake v. County of Essex, 275 N.J. Super. 585, 589-90 (App. Div. 1994)), certif. denied, 156 N.J. 405 (1998) (citation omitted).]

An officer may request that a driver step out of his vehicle after lawfully detaining him. State v. Smith, 134 N.J. 599, 609-10 (1994) (citing with approval the holding in Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977)). See also State v. Arthur, 149 N.J. 1, 16 (1997).

In the present case, the record provides support for the finding of the Law Division judge that Officer Tuttle was justified in asking defendant to exit his vehicle because of the smell of alcohol and defendant's appearance. The officer not only smelled alcohol coming from defendant's vehicle, he noticed that his eyes were watery and glassy, and his clothes were disheveled. His suspicion was reasonable that defendant had been driving while intoxicated. Even if one accepts that defendant may have been ill, as he claimed after his arrest, we concur that the observations of Officer Tuttle were sufficient to justify asking defendant to exit his car.

IV.

Defendant argues that Officer Seifert did not have probable cause to arrest him. For an arrest to be valid, the police officer must have had probable cause. State v. Moore, 181 N.J. 40, 45 (2004). Although the "probable cause standard is not susceptible of precise definition[,]" the "principal component . . . 'is a well-grounded suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). "'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . 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].'" Moskal, supra, 246 N.J. Super. at 21 (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). A police officer's observations of a driver including the driver staggering, failing the walk-and-turn test, failing the one-leg-standing test, miscounting when attempting to count by thousands and failing when attempting to say the alphabet can prove beyond a reasonable doubt that defendant was guilty of DWI. Oliveri, supra, 336 N.J. Super. at 251-52.

"[L]ay opinion consistently has been admitted to prove that a defendant was 'operat[ing] a motor vehicle while under the influence of intoxicating liquor' in violation of N.J.S.A. 39:4-50 . . . ." State v. Bealor, 187 N.J. 574, 585 (2006). When the significance of the results of a field sobriety test

depends upon a conclusion of the witness as to whether the motorist's reaction is a departure from the normal or standard, such conclusion may not be given unless the examiner is shown to have some skill or training which will qualify him to make an evaluation. . . . [However], even if no qualifying experience or training of the officers is shown, it does not follow that their testimony must be excluded. It is entirely proper for them to describe the tests or maneuvers they had the defendant perform and then testify as to what his physical reaction was when he undertook to execute them. The reaction should be described in terms of what they observed when the tests were undertaken by defendant. . . . In other words, the observed physical reactions to such tests are on the same plane as other common factual indicia that a person is under the influence of intoxicating liquor which always may be testified to by a layman.

[State v. Morton, 39 N.J. 512, 514-15 (1963) (emphasis added)].

In this case, the record supports the Law Division finding that Officer Seifert had probable cause to arrest defendant for driving while intoxicated. Although Officer Tuttle had not received formal training on conducting field sobriety tests, he has been a police officer for over twenty-four years and has significant experience dealing with intoxicated individuals. The tests administered by Officer Tuttle are recognized as valid field sobriety tests, and there is no legal requirement that officers administer sobriety tests in accordance with the NHTSA. Further, a lack of formal training could not preclude Officer Tuttle from testifying as to defendant's performance on the tests he administered, or defendant's demeanor that evening. Defendant now claims his performance on the tests was affected by a recent ankle injury. However, defendant told Officer Tuttle prior to the sobriety tests that he had no injury that would affect his ability to perform the tests.

We agree with the Law Division judge that there was probable cause to believe that defendant was guilty of DWI. Officers Tuttle and Seifert both observed that defendant's eyes were watery, his clothes were disheveled and he smelled of alcohol. Defendant did not follow the directions given to him when performing the balancing test, the walk-and-turn test or the one-leg-stand test. During the walk-and-turn test defendant had to gain his balance more than once. While defendant was performing this test, he continued to ask the police officers to give him a break and to be lenient. During the one-leg-stand test, he had to continuously place his foot on the ground. These observations constituted reasonable grounds to believe that defendant was driving while under the influence.

V.

Defendant claims that the judge erred in admitting the after-certificate at trial because it had not been provided in discovery. As the Law Division judge noted, defendant did not object when the municipal court judge entered the document into evidence after allowing the defense to review the material during a ten-minute recess, and it did not appear that there was any "issue . . . taken on the actual information contained in the certificate."

Under Rule 7:7-7(g):

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order that party to permit the discovery, inspection, copying or photographing of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed or enter such other order as it deems appropriate.

It is within the discretion of the municipal judge to fashion a remedy for a discovery violation. Thus, defendant must show that admitting the certificate constituted an abuse of discretion. An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (citations omitted). An abuse of discretion occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

In this case, admitting the after-certificate into evidence was not an abuse of discretion. Defendant has neither demonstrated a "manifest error or injustice[,]" nor provided evidence that he suffered harm as a result of the judge's ruling. The judge's ruling falls within the purview of Rule 7:7-7(g).

VI.

We also reject defendant's claims that his breathalyzer results should not have been admitted into evidence because Officer Seifert did not properly administer the test. In finding defendant guilty under the per se prong of N.J.S.A. 39:4-50, the Law Division judge stated that it was within his discretion to decide the amount of weight to afford the breathalyzer results. He stated that he found Mr. Leckie's testimony "speculative at best." The judge deferred to the municipal court judge's "observations that Mr. Leckie opined that the results 'could' be either higher or lower within the tolerance level, but that Leckie did not definitively state the results would be less than .15% and/or .16% readings." The judge concluded that Mr. Leckie's speculative opinion "does not rise to defeat the readings taken from the defendant on October 29, 2005." We agree.

There are two ways to prove a defendant guilty of DWI pursuant to N.J.S.A. 39:4-50: "proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 544 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). The latter is known as being guilty of DWI per se. State v. Chun, 194 N.J. 54, 64 (2008). The Supreme Court of New Jersey has held that, the Smith and Wesson Breathalyzer Models 900 and 900A "are scientifically reliable for the purpose of determining the content of blood alcohol[.]" Romano v. Kimmelman, 96 N.J. 66, 82 (1982). "The results derived from breathalyzer instruments constitute a form of scientific evidence[,]" and the State bears the burden of proving the admissibility of the test by clear and convincing evidence. Id. at 90. "[T]he results of a breathalyzer test[s] [are] generally admissible in evidence when the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures . . . ." Id. at 82. See also Chun, supra, 194 N.J. at 134. The establishment of these conditions can form the basis of a conviction for a violation of N.J.S.A. 39:4-50. Ibid. See also Chun, supra, 194 N.J. at 64 ("drivers whose breathalyzer test results demonstrate the requisite statutorily-imposed BAC are guilty per se of . . . DWI[.]").

In this case, defendant does not claim that Officer Seifert was not qualified to operate the breathalyzer, or that the machine was not in proper working condition, but rather that Officer Seifert's administration of the test was deficient. Despite a number of speculative deficiencies asserted by Mr. Leckie, the only cited deficiency that might have definitively affected the breathalyzer test was Officer Seifert's use of the balance wheel. While Officer Seifert's initial testimony indicated an improper administration of the test, he later corrected his testimony at trial. Both the municipal court judge and the Law Division judge found that the test was properly administered; both judges accepted Officer Seifert's testimony on redirect examination. We agree that there was no substantial deficiency with the breathalyzer test that would undermine the courts' determination that defendant was guilty of a per se violation of N.J.S.A. 39:4-50 beyond a reasonable doubt.

Affirmed. The stay of the suspension of defendant's driver's license is continued for a period of thirty days after which the stay shall be vacated automatically, unless it is extended by order of the Supreme Court.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

An after-certificate is a form verifying that the breathalyzer machine is in proper working order. See State v. Samarel, 231 N.J. Super. 134, 142 (App. Div. 1989) (breathalyzer "test result[s] may be admissible without a post-test certification if . . . there is a pretest certification made within a month before the test that the machine was in proper working order and there is no evidence that the machine gave inaccurate results when used for the test.").

We note that the requisite standard for the state to obtain a conviction for DWI under N.J.S.A. 39:4-50 is proof beyond a reasonable doubt. Johnson, supra, 42 N.J. at 156.

(continued)

(continued)

27

A-3408-07T4

April 29, 2010