STATE OF NEW JERSEY v. GERARD M. CULKIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4017-08T44017-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARD M. CULKIN,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

municipal appeal no. 25-08.

Levow & Associates, P.A., attorneys for

appellant (Evan M. Levow, of counsel; Mr.

Levow and Sandra L. Battista, on the brief).

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (Michael McLaughlin,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Gerard Culkin appeals from a judgment of conviction for a violation of N.J.S.A. 39:4-50. Defendant argues that his Alcotest reading of 0.081% must be reduced by 0.005%, resulting in a reading below the per se minimum of 0.08%. Both Judge Green in the Franklin Township Municipal Court and Judge Armstrong in the Law Division, on the trial de novo, rejected the argument. We do as well and affirm the conviction.

The facts are simply stated. On February 23, 2006, defendant was involved in a one car accident in Franklin Township. The police administered two breath tests using the Alcotest 7110 MKIII-C machine. The Supreme Court, in State v. Chun, 194 N.J. 54, 65, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), concluded that the Alcotest is "generally scientifically reliable," and with certain modifications, its results may be used to support a per se violation of N.J.S.A. 39:4-50. See also State v. Mostaro, 411 N.J. Super. 91, 103 (App. Div. 2009). As we have already noted:

The Alcotest is an embedded system, which utilizes two separate methods of measurement on each provided breath sample: electric chemical oxidation sensing (EC) and infrared sensing (IR). Chun, supra, 194 N.J. at 78. A test subject provides two breath samples, resulting in four separate BAC measures. Ibid. The IR and EC readings are reported on a printed Alcohol Influence Report (AIR). Id. at 79.

[State v. Rivera, ___ N.J. Super. ___ (App. Div. 2010) (slip op. at 2).]

Here, defendant's breath tests resulted in readings of 0.082% (EC result) and 0.081% (IR result) on the first test and 0.088% (EC result) and 0.084% (IR result) on the second test. The State relied exclusively on the test results to establish its case and abandoned any proofs as to physical observations. Defendant then entered a conditional plea and was sentenced consistent with the statute including a license suspension, fines and penalties.

On appeal, defendant relies on Chun, supra, 194 N.J. 54, and asserts that during the testimony before the Special Master appointed by the Supreme Court in Chun and in the Master's report, there is a reference to a "margin of error on the 7110 [of] plus or minus .005 percent." Defendant concedes that no specific mention was made in the Court's opinion regarding this testimony; however, the opinion does sanction the use of an AIR, requiring an adjustment for 0.005% both at the high end and low end of the calculated ranges. Id. at 118-20. Specifically, utilizing the worksheet, the upper limit of the tolerance range must be increased by 0.005%, while the lower end of the tolerance range must be reduced by 0.005%.

Defendant's theory is that since there is a 0.005 "margin of error," the trial judge erred by not reducing defendant's lowest single reading by that amount resulting a net reading of less than 0.08%. Defendant cites no authority, and we know of none, that permits defendant's suggested methodology. Cf. Rivera, supra, slip op. at 6-7 (rejecting the defendant's proposed methodology of truncating the mean of his four Alcotest readings to three decimal places, which was without the support of "any specific language in Chun."). In fact, Chun suggests something different by use of the AIR and application of the relevant tolerance ranges. As Judge Armstrong noted, the "margin of error" is incorporated in the Worksheet A calculations. See Chun, supra, 194 N.J. at 119-20. Nothing offered by defendant supports a different methodology, and we find no basis for overturning the conditional plea.

 
Affirmed.

(continued)

(continued)

2

A-4017-08T4

March 3, 2010