STATE OF NEW JERSEY v. JUAN RIVAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4857-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN RIVAS,

Defendant-Appellant.

________________________________

December 10, 2012

Argued November 27, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-055.

Ashton E. Thomas argued the cause for appellant.

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).

PER CURIAM

Defendant Juan Rivas conditionally pled guilty to the charge of driving while intoxicated, N.J.S.A. 39:4-50, after his request for an N.J.R.E. 104 hearing was denied and three subpoenas duces tecum were quashed in the Irvington municipal court. As a first offender under N.J.S.A. 39:4-50(a)(1)(ii), Rivas was sentenced to participate for twelve hours in the Intoxicated Driver Resource Program and his driving privileges were suspended for seven months. He was also required to pay mandatory fines and penalties.

On appeal to the Law Division, Rivas argued that he was entitled to an evidentiary hearing, as well as the information sought in the subpoenas, as part of his defense that the State's breath testing by the Alcotest 7110 MK III-C (Alcotest) was unreliable and therefore inadmissible. After the Law Division ruled that an N.J.R.E. 104 hearing was unnecessary and the subpoenas need not be answered, it entered an order determining that "all fines and penalties [imposed in the municipal court] shall remain the same." Rivas appeals from that order, and we affirm.

I.

We gather the facts from the plea allocution and the State's discovery materials provided in the municipal court proceedings. On October 16, 2010, Rivas was operating a motor vehicle on the Garden State Parkway in Irvington. Prior to that operation, Rivas had consumed five glasses of wine, which affected his ability to operate the motor vehicle.

Two breath tests administered by the State Police using the Alcotest produced readings of a blood alcohol concentration of 0.24%. The State's Alcohol Influence Report indicated that the duration of Rivas's first breath sample was 6.9 seconds and its volume was 3.7 liters; the duration of his second breath sample was 8.7 seconds and its volume was 3.6 liters.

Rivas sought to challenge the Alcotest's results on the basis that its scientific reliability was compromised due to the lack of evidence of calibration of its "pulmonary variables that it reports." To that end, Rivas issued three identical subpoenas duces tecum seeking the following:

Any and all evidence that Alcotest 7110 accurately records liter volume, blowing time, and flow rate. Any and all evidence identifying the technology that makes calibration for liter volume, blowing time, and flow rate unnecessary for an accurate BAC. Any and all evidence establishing that inspection and recalibration of the pressure and flow sensors are unnecessary for an accurate BAC.

Two of the subpoenas were directed to representatives of the New Jersey State Police: Dr. Howard Baum, Director of the Office of Forensic Science and Thomas Snyder, Coordinator. The third subpoena was served on a "Compliance Manager" for Draeger Safety Diagnostics, Inc. (Draeger)1 in Texas.2

The Law Division rejected Rivas's claims that he was entitled to have the subpoenas enforced, concluding that because "there [was] no indication that [Rivas] provided an abnormal or inadequate breath sample volume or blowing time when using the Alcotest in this case," the question of calibration of "pulmonary functioning" of the Alcotest was irrelevant. Furthermore, the Law Division concluded, "[t]he Supreme Court of New Jersey has already determined that the Alcotest 7110 MKIII-C is generally scientifically reliable, and [Rivas] fails to raise any compelling argument as to why the Alcotest machine used in this case was unreliable." For these same reasons, Rivas's request for an N.J.R.E. 104 hearing was denied. This appeal followed.

II.

On appeal, Rivas presents the following contentions for our consideration:

POINT I: THE MOTION FOR AN EVID. R. 104 HEARING SHOULD BE GRANTED.

POINT II: THE COURT ERRED WHEN IT QUASHED SUBPOENA.

After canvassing the record and reviewing the applicable law, we do not find Rivas's arguments persuasive; accordingly, we affirm.

We accord substantial deference to the evidentiary rulings of a trial court. State v. Morton, 155 N.J. 383, 453 (1998); State v. Goodman, 415 N.J. Super. 210, 224 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Thus, we review evidentiary decisions under an abuse of discretion standard. State v. Burns, 192 N.J. 312, 332 (2007). "'[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.'" Goodman, supra, 415 N.J. Super. at 224-25 (alteration in the original) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). Similarly, we review a trial court's ruling on a defendant's discovery motion for abuse of discretion. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).

The Alcotest has been held to be "generally scientifically reliable" and its results are admissible to support a per se violation of N.J.S.A. 39:4-50. State v. Chun, 194 N.J. 54, 65, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). As a precondition for admissibility of Alcotest results, however, Chun requires the State to establish that: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 134. To establish that the Alcotest was in proper working order when an arrestee's breath samples were taken, the State must enter into evidence three foundational documents:

(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(2) the most recent New Standard Solution Report prior to a defendant's test; and

(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control test.

[Id. at 154.]

Rivas does not challenge Chun or its progeny.3 Instead, he seeks to open a new front against the Alcotest by suggesting that the lack of calibration of the so-called "pulmonary variables" of the device belie its scientific reliability. We do not criticize Rivas's creativity or imagination in this regard, but note that he presented neither a scientific foundation for his claim nor decisional law in support of his theory. His effort to extract written discovery material from the State is based not upon a novel premise, but upon wishful thinking. That is not enough.

The Law Division did not abuse its discretion in denying an N.J.R.E. 104 hearing and refusing to enforce Rivas's subpoenas because Rivas was engaged in nothing but a speculative demand for information without any real expectation about the outcome of the demand or its relevance. Rivas "must advance 'some factual predicate which would make it reasonably likely'" that the records contain some relevant information, and establish that he is not merely engaging in a fishing expedition. State v. Harris, 316 N.J. Super. 384, 398 (App. Div. 1998) (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). Without a plausible scientific explanation to support an evidentiary dive into the State Police's pool of Alcotest information, the Law Division rightly found no basis to enlarge the State's already rigorous discovery obligations under Chun.

Rivas's remaining arguments are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 Draeger is the manufacturer and marketer of the Alcotest.

2 Rivas abandoned his effort to enforce the out-of-state subpoena against Draeger in the Law Division.

3 See, e.g., State v. Holland, 422 N.J. Super. 185 (App. Div.), appeal after remand, 423 N.J. Super. 309 (App. Div. 2011).