STATE OF NEW JERSEY v. BRETT J. PETERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0947-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRETT J. PETERSON,

Defendant-Appellant.

________________________________

May 31, 2011

Submitted May 18, 2011 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-047.

Michael A. Grasso, attorney for appellant.

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Brett J. Peterson appeals from his conviction based upon a conditional guilty plea for driving while intoxicated, N.J.S.A. 39:4-50. The sole issue on appeal relates to the admissibility of the 0.14 percent blood alcohol concentration result of the Alcotest 7100 breathalyzer test, which Peterson contends was improperly administered. Because we find that there was no error in the manner of administering the test and no bona fide reason to challenge the reliability of its results, the Law Division properly denied Peterson's motion to suppress. Accordingly, we affirm the conviction.

I.

At approximately 8:00 p.m. on May 31, 2009, Peterson was involved in a motorcycle accident in Millstone Township. One of the responding State Police officers, Trooper Michael Guarda, testified at the N.J.R.E. 104 suppression hearing in the municipal court that he found Peterson a distance from the accident scene "on the grass next to the Millstone Fire House" covered in "blood [and] cuts." Peterson appeared to be "heavily intoxicated. He was crying. He had numerous cuts [and] abrasions from the accident." Another State Police officer, Trooper Harry J. Cannon, confirmed Peterson's condition on the scene, stating:

When I arrived on scene, Mr. Peterson was sitting down, crying, his hands were very bloody. Like I said before, his buttocks were bloody, his arms were bloody. I didn't want to move Mr. Peterson too much until he had first aid attention.

Shortly after encountering Peterson, Cannon placed him under arrest for driving while intoxicated, and administered Miranda warnings at approximately 8:42 p.m. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After refusing to be transported to a hospital for his injuries, Peterson was treated on the scene with first aid, and then he was driven to the State Police barracks in Hamilton Township for the administration of a breathalyzer test.

Trooper Cannon described what happened after arriving at the barracks at 8:56 p.m.:

Back at the station, Mr. Peterson said he was okay to perform the tests. I proceeded to give Mr. Peterson a series of three field sobriety tests, which he failed. Mr. Peterson was then observed for [fifteen] minutes, at which time he vomited for the second time in my presence, first time being on the scene, the second time after observation was conducted for [fifteen] minutes. He was observed again for an addition[al] [twenty] minutes and then placed on the Alcotest machine.

Trooper Cannon stated that during the final twenty-minute observation, the following occurred:

Q. And what did you do after that?

A. After he vomited I observed him for an additional [twenty] minutes.

Q. And between the time you began the second observation period and the expiration of [twenty] minutes did he vomit?

A. No, sir.

Q. Did he have anything to eat or drink?

A. No, sir.

Q. Did he regurgitate or belch?

A. No, sir.

Q. Did he place anything into his mouth?

A. No, sir.

Q. No gum, nothing?

A. Nothing, sir.

On cross-examination, Trooper Cannon's description of the events was the following:

Q. When Mr. Peterson regurgitated, how much came up?

A. Enough to get on the floor. There was a small amount on the floor, and there's a sink right next to the seat where I had the defendant seated. And I told him to make sure he got the rest in the sink. He did. It took about two seconds. There was a little bit on the floor, the rest in the sink, and then the observation started again.

Q. Did you permit Mr. Peterson to clean himself up and rinse his mouth out?

A. I permitted him to wipe himself off. I did not permit him to rinse his mouth out, no, sir.

Q. At no time did Mr. Peterson rinse his mouth out?

A. No, sir.

Q. At no time did you permit Mr. Peterson to have access to a bathroom at your barracks?

A. For what reason, sir?

Q. To rinse out his mouth and maybe to use the facilities to clean himself up?

A. He cleaned He didn t have anything on him to clean up other than his bandages and blood. He puked in the sink. He was able to spit anything in his mouth that was out. As soon as he was done spitting, there was nothing in his mouth. He didn't do anything else. I waited another [twenty] minutes.

Q. Not to be redundant, he did not rinse his mouth out with any liquids, correct?

A. It is redundant. Yes. He did not

Q. Okay.

A. rinse his mouth out.

The first breath sample was collected from Peterson at 9:43 p.m., and revealed a blood alcohol concentration of 0.14 percent. A second sample taken a few minutes later produced a similar result.

Defendant presented the testimony of expert witness Gary Aramini who was of the view that Trooper Cannon deviated from accepted standards when he did not permit Peterson to rinse out his mouth prior to the administration of the breathalyzer test. However, when questioned about State Police or Attorney General protocols that require mouth rinsing after vomiting, Aramini testified that "[he] didn't know of any." He also conceded, "[t]here's nothing in Chun that says that." State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

The municipal court judge considered all of the evidence that was produced during the suppression hearing and concluded that "Trooper Cannon did testify that he made an inspection of the defendant's mouth and found that it was clear." The judge then determined, "the State has met its burden of proof. It's clear and convincing and deemed to be beyond a reasonable doubt that I can accept these readings as submitted." The motion to suppress was denied.

Minutes later, with defense counsel at his side, Peterson entered a conditional guilty plea pursuant to Rule 7:6-2(c). The municipal court sentenced Peterson as a first offender, imposing a seven-month driver's license suspension, plus appropriate fines, fees, surcharges, and other sanctions. The sentence was stayed pending Peterson's prosecution of an appeal to the Law Division.

In the de novo trial, the Law Division carefully addressed the factual background that was developed in the municipal court. It concluded that based upon Trooper Cannon's observations, the Alcotest was properly administered. As a legal matter, the court stated:

Thus, to require office officers to allow a defendant to rinse his or her mouth prior to administering the Alcotest would be in conflict with the Supreme Court's findings in Chun. And I say that in a sense that the Court made it pretty clear in the paragraph that was read what the responsibilities were in this area, and I think it's because they bumped the what was perhaps recommended as a [fifteen]-minute time frame to a [twenty]-minute time frame, and there's a psycho scientific evidence that they accepted. By [twenty] minutes there's going to be nothing in the mouth in terms of alcohol which could create an enhanced reading. I think that's how they got there.

Accordingly, defendant was convicted anew. The court imposed the same sentence that had been imposed in the municipal court, and stayed all sanctions. This appeal followed.

II.

Defendant argues a single point on appeal:

ONE CURSORY, PREFUNCTORY STATEMENT, EVEN IF IT IS CREDIBLE, DOES NOT CONSTITUTE CLEAR AND CONVINCING EVIDENCE SUFFICIENT TO CREATE A RECORD THAT SUPPORTS FINDING THE APPELLANT GUILTY OF DWI.

He claims without citation to objective standards or authority that "vomiting causes food particles from the stomach to enter the oral cavity" and that those particles "would have absorbed the alcohol that was contained in the stomach." Additionally, Peterson asserts that if he had been allowed to "rinse his mouth out and expectorate those food particles, it would have been clear that [Peterson's] mouth was free of 'materials that absorb alcohol' and, twenty minutes later, the tests that were administered would have issued unquestionable results." Distilled to its essence, Peterson claims that "he placed alcohol in his mouth when he vomited and that since he was not allowed to rinse that alcohol from his mouth, the purposes of the second twenty-minute observation period were completely thwarted." We find these arguments meritless.

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). We are not in a position to judge credibility, and we do not make new findings of fact. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Unless we are convinced the Law Division's finding was "'clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Avena, supra, 281 N.J. Super. at 333 (quoting Johnson, supra, 42 N.J. at 162).

Defendant conditionally pled guilty with the results of the Alcotest looming over his trial. The Alcotest has been held to be "generally scientifically reliable," and with certain modifications, its results are admissible to support a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. As a pre-condition to the admissibility of the Alcotest results, the device's operator "must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol[]" and to assure that the test subject has not swallowed anything, regurgitated, or chewed gum or tobacco. Id. at 79. The State must establish compliance with the observation procedure by clear and convincing evidence. State v. Ugrovics, 410 N.J. Super. 482, 489-490 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). "The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time." Id. at 485.

Defendant contends that the Law Division erred by concluding the Alcotest operator's statements satisfied the heightened standard of clear and convincing evidence. Appellate courts should defer to trial courts' fact findings. Locurto, supra, 157 N.J. at 474. The rule of deference is more compelling where, as in this case, the municipal and Law Division judges made concurrent findings. Ibid. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid.

Clear and convincing evidence "'should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.'" In re Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)). It must be "'so clear, direct, and weighty and convincing as to enable [a judge] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'" In re Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339 (App. Div. 1981), modified, 90 N.J. 361 (1982)).

From our review of the record, taking into account the fulsome analysis of the evidence by the Law Division and its recognition of the State's burden of proof, we conclude that there was ample evidence in the record to establish that the Chun requirements were satisfied by clear and convincing evidence, and we have no occasion to disturb those findings. Locurto, supra, 157 N.J. at 474. The issue turned on the credibility and sufficiency of the evidence, and the Law Division believed Trooper Cannon. Peterson's implicit arguments suggesting that a further refinement of Chun is required are unpersuasive. Most importantly, we find nothing in the challenges to Trooper Cannon's conduct that erodes our confidence in the Law Division's determination.

Affirmed. The stay is vacated.