STATE OF NEW JERSEY v. BRIAN T. MILLAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4772-08T44772-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN T. MILLAR,

Defendant-Appellant.

_____________________________

Submitted May 25, 2010 - Decided July 1, 2010

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 32-2008.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel; Kevin Leckerman, on the brief.).

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

PER CURIAM

Defendant Brian T. Millar appeals from an order of the Law Division denying his motion to withdraw his conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.

On December 11, 2005, defendant was driving to Plainsboro. His blood-alcohol concentration, as measured by an Alcotest instrument, was .16 percent. He was charged with DWI as well as six other motor vehicle offenses, including DWI in a school zone, N.J.S.A. 39:4-50(g). On March 29, 2006, defendant entered a guilty plea in municipal court to the DWI charge, conditioned upon the outcome of State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), which would determine the scientific reliability of the Alcotest machine. In exchange, the State agreed to dismiss the balance of the charges and to accept a non-guilty verdict on the school zone offense. Defendant was then sentenced, as a third DWI offender, to a driver's license suspension of ten years, forty-eight hours in the Intoxicated Drivers Resource Center for evaluation, 180 days in the county jail and various fines, penalties and costs. With the exception of the latter, the sanctions were stayed pending the outcome of Chun.

On March 17, 2008, the Court decided Chun, supra, holding that the Alcotest machine was "generally scientifically reliable[.]" 194 N.J. at 65. Specifically, the Court ordered that:

For all pending prosecutions, including all prosecutions in which imposition of sentence has been stayed by our January 10, 2006 Order, and in all future prosecutions based on tests conducted prior to the implementation of our directives through creation of and implementation of revised firmware, Alcotest 7110 MKIII-C with New Jersey Firmware 3.11 is sufficiently scientifically reliable, and the Alcohol Influence Report (AIR) which sets forth the results of the breath tests is admissible as evidence of blood alcohol content (BAC)

. . . .

[Id. at 150.]

For purposes here relevant, the Court, in describing the admission of a breath test, stated that an operator must wait twenty minutes from the time of arrest to obtain a breath sample, and for those minutes, the suspect must be observed to insure that he did not, for example, regurgitate and thus increase the level of mouth alcohol, which would taint the reading. Id. at 79.

This portion of the opinion formed the basis of defendant's subsequent application to withdraw his guilty plea. On April 23, 2008, after the Chun decision, defendant again appeared before the municipal court judge for sentencing, at which time he moved to vacate his guilty plea, arguing that his plea was conditioned upon the Alcotest's reliability, and its reliability, in turn, depended on the operator's correct administration of the test. The judge denied the motion and imposed the original sentence.

On appeal, based on its de novo review of the record, the Law Division also denied defendant's motion to withdraw his conditional guilty plea, reasoning:

Here, the defendant argues that Chun made the twenty minute observation period the foundation for the admissibility of any Alcotest instrument result. Further, the defendant argues that since there was no proof that the twenty minute rule was not enforced in this case, defendant should be permitted to withdraw his conditional guilty plea as that would, in his opinion, significantly undermine the reliability of the Alcotest results in his case. Additionally, defendant notes that since the State noted below its inability to proof [sic] defendant's guilt on an observation case, the strong reliance on defendant's Alcotest reading in proving his guilt strongly warrants allowing the defendant to withdraw the conditional guilty plea.

As noted above, the Supreme Court of New Jersey did not create the existence of the twenty minute rule in Chun. By all indications, the Supreme Court's goal in mentioning the rule was in the context of a broad discussion of the already-existing procedures employed in conducting a breath test analysis. The contextual analysis supports a conclusion that the Supreme Court was not seeking to write the twenty minute rule into the law; the rule is not mentioned in any of the provisions that were to apply to pending and future Alcotest prosecutions.

Even if the Supreme Court were giving such weight to the twenty minute rule, there is likewise no indication that the Supreme Court intended that as a basis for similarly situated defendants who entered conditional guilty pleas to retroactively attack the factual bases of those pleas. Additionally, the record indicates neither defendant nor counsel made any issue of a twenty minute rule violation at any time. Thus, it is the finding of this Court that the defendant's guilty plea was supported by a sufficient factual basis, and that the defendant is not now permitted to go back and attack that basis based on proofs that were allegedly created by Chun. The State rested its factual basis on the defendant's Alcotest reading, which as confirmed by the defendant on the record, was .16.

On appeal, defendant essentially argues that the Chun decision created the previously unknown defense of the "twenty- minute observation period," which he should have been able to employ but for the court's refusal to vacate his guilty plea. We disagree.

As a threshold matter, we find defendant has failed to preserve the issue he now raises on appeal. Defendant conditioned his guilty plea on the scientific reliability of the Alcotest, not the manner in which the breath test was administered, whether the twenty-minute observation period was satisfied, or whether his breath samples were contaminated by excess mouth alcohol or some other substance. Since the Chun Court determined the reliability of the Alcotest machine, the condition on which defendant's guilty plea rests has been fulfilled, and his guilty plea thus stands. Consequently, his present challenge, not to the reliability of the test, but rather to the deficiency of the State's proofs as to the operator's conduct of the test, is neither encompassed in, nor preserved by the original reservation. R. 3:9-3(f); R. 7:6-2(c); State v. Mustaro, 411 N.J. Super. 91, 99-106 (App. Div. 2009).

Even if it were so preserved, the challenge fails. The Court has established a four-prong balancing test "[i]n evaluating motions to withdraw a guilty plea . . . ." State v. Slater, 198 N.J. 145, 150 (2009). These four factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58.

Under the first prong of the Slater test, a defendant must provide more than a "bare assertion of innocence." Id. at 158. Rather, a "[d]efendant[] must present specific, credible facts and, where possible, point to facts in the record that buttress [his or her] claim." Ibid. Furthermore, "[w]hen evaluating a defendant's claim of innocence, courts may look to 'evidence that was available to the prosecutor and to the defendant through . . . discovery practices at the time the defendant entered the plea of guilt.'" Ibid. (quoting State v. Smullen, 118 N.J. 408, 418 (1990)).

Under the second prong, "the nature and strength of defendant's reasons for withdrawal[,]" the focus should be on "the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. Some examples of reasons found sufficient include:

(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) defendant's reasonable expectations under the plea agreement were not met; (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea.

[Id. at 159-60 (citations omitted).]

Under the fourth prong, whether withdrawal would "result in unfair prejudice to the State or unfair advantage to the accused[,]" "[t]he critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Id. at 161. Within this inquiry the Court mentioned several factors that may lead to prejudice, such as,

"the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence." Ibid.; see also State v. Herman, 47 N.J. 73, 79 (1966) (denying the defendant's motion to withdraw a guilty plea after his fugitive absence of approximately one year, as the State would be prejudiced because the "witnesses' memories of . . . events may have faded with the passage of time"). Additionally, "courts may consider the State's efforts leading up to the plea and whether it is fair to require the State to repeat them." Slater, supra, 198 N.J. at 161.

Here, defendant has not made a showing of a colorable claim of innocence. In this regard, his blanket assertion that the State is unable to prove that there was a continuous twenty-minute observation period pre-testing does not amount to a claim of actual innocence.

As to the "nature and strength" of the reasons for withdrawal, defendant contends that Chun, in requiring a twenty-minute observation period, established a new defense to the admission of Alcotest results, of which he should now be afforded the benefit retroactively. We disagree.

Significantly, the defense of a contaminated sample was always available to defendant, and presumably he had enough information to plan that defense at trial but chose otherwise. In this regard, some form of Chun's twenty-minute rule has long existed. Since at least 1990, the existence of a twenty-minute-no-ingestion-of-alcohol rule has been well known. State v. Downie, 117 N.J. 450, 455-56, cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (1990). In Downie, the Court stated, "[f]or the breathalyzer to give readings that can be used with confidence, the operator must be sure that at least twenty minutes have expired since the last ingestion of alcohol to avoid the presence of 'mouth' alcohol, which can give a falsely high reading." Ibid. Although admittedly not as broad as the Chun rule, the difference, for present purposes, is not significant. A DWI defendant has always been entitled to claims that his test results, albeit calculated by a scientifically reliable instrument, were tainted because the sample was contaminated. In other words, defendant need not have awaited the holding in Chun to have formulated a defense based on the insertion, during the twenty-minute observation period, of some contaminant in his mouth. Yet despite the clear opportunity to contest the integrity of his Alcotest results by claiming he contaminated the sample by some means such as burping, regurgitating, chewing gum or sticking his fingers in his mouth, defendant failed to do so and instead opted to plead guilty to DWI. Consequently, in determining the "nature and strength" of defendant's reasons for withdrawal of his guilty plea, we do not view the Chun twenty-minute observation rule to be such a "'sudden and generally unanticipated repudiation of a long-standing practice[,]'" so as to be considered a "'new rule of law[]'" that benefits defendant retroactively. State v. Afanador, 151 N.J. 41, 58 (quoting State v. Cupe, 289 N.J. Super. 1, 11-12 (App. Div.), certif. denied, 144 N.J. 589 (1996)).

On the contrary, allowing withdrawal of the guilty plea, after the passage of so much time since the 2006 DWI stop, would unfairly advantage defendant and distinctly prejudice the State were this matter to be tried. Undoubtedly, because the twenty-minute observation rule was not then in effect, it is highly unlikely that the State will be able to prove with certainty what exactly transpired between the stop and the test and, more specifically, during the twenty-minute period immediately preceding administration of the Alcotest.

In sum, no factor under Slater justifies relief in this matter. Defendant has failed to offer a colorable claim of innocence or demonstrate any unfairness in having his guilty plea enforced. On the other hand, the State would be severely prejudiced if obligated to proceed to trial.

 
Affirmed.

On January 10, 2006, the Supreme Court issued an unpublished order in Chun addressing the conduct of DWI cases statewide:

a defendant who challenges the use of Alcotest related evidence may enter a conditional guilty plea pursuant to Rule 7:6-2(c), reserving the right to apply for relief from the municipal court should the appeal before the Court [i.e., Chun] result in a determination that the Alcotest devices are not reliable. . . .

Defendant was given credit for ninety days once the municipal court determined that he had satisfactorily participated in an in-patient alcohol treatment program.

The third prong, existence of a plea bargain, is not relevant in this case as DWI cases may not be the subject of negotiated pleas.

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