STATE OF NEW JERSEY v. DANIEL J. BIBAUD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL J. BIBAUD,

Defendant-Appellant.

__________________________________________

February 3, 2015

Submitted November 12, 2014 Decided

Before Judges Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 07-13.

John Menzel, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Meghan M. O'Neill, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Daniel J. Bibaud, appeals from his conviction after a trial de novo before Judge James Blaney of driving while under the influence of intoxicating liquors (DWI). We affirm.

On January 17, 2012, defendant was stopped by police while operating a motor vehicle in Manchester Township. As a result of the stop and a subsequent field investigation, defendant was arrested and transported to police headquarters where he submitted to an Alcotest breath examination. The Alcotest recorded defendant's blood alcohol concentration (BAC) at 0.10 percent.

Defendant was charged with driving while intoxicated (DWI), reckless driving, failure to maintain lane, and speeding, in violation of N.J.S.A. 39:4-50, N.J.S.A. 39:4-96, N.J.S.A. 39:4-88(b), and N.J.S.A. 39:4-98, respectively. Defendant pled guilty to N.J.S.A. 39:4-50. The remaining charges were dismissed.

Defendant raises three arguments on appeal: (1) defendant's breath test result should be excluded because the State failed to establish defendant was continuously observed for twenty minutes before submitting breath samples; (2) the State failed to provide discovery of complete Alcotest data and repair records, denying defendant's right to review the test and operability of the used instruments; and (3) the Legislature's shift regarding DWI offenders entitles defendant to a jury trial.

A Law Division judge in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).

Our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge could reasonably have been reached by the sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999) (citing State v. Barone, 147 N.J. 599, 615 (1998)); State v. Johnson, 42 N.J. 146, 162 (1964). Additionally, we accord great deference to the consistent conclusions of two other courts, State v. Stas, 212 N.J. 37, 49 n.2 (2012), and "[u]nder the two-court rule, [we] 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. (citing Locurto, supra, 157 N.J. at 474; State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999)).

"That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Johnson, supra, 42 N.J. at 162. We will reverse only after being "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Ibid. Measured under this standard, for the reasons articulated in the trial court, we discern no basis to disturb Judge Blaney's determination.

I.

We first address defendant's argument pertaining to defendant's claim that he was not continuously observed for twenty minutes before breath samples were submitted. In State v. Chun, 194 N.J. 54, 64-66, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court considered whether the Alcotest 7100 MKIII-C manufactured by Draeger Safety Diagnostics, Inc., using New Jersey Firmware version 3.11, was scientifically reliable, and could be utilized to prove a per se violation of N.J.S.A. 39:4-50.1 The Court explained that the Alcotest measures an individual's BAC through breath testing, using infrared and electric chemical technology. Chun, supra, 194 N.J. 78.

As the Court held in Chun, "[o]perators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol." Id. at 79. The purpose of this twenty-minute observational period is to assure that the driver providing the breath samples has not ingested anything, vomited, or otherwise had something in his mouth or breath that could alter the Alcotest readings. Ibid. If any such observations are made, the Alcotest operator "is required to begin counting the twenty-minute period anew." Ibid.

The State must establish this condition by clear and convincing evidence. State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). The observation may be conducted through non-visual as well as visual means, so long as the observer is able to detect whether the driver has ingested or regurgitated something that would confound the Alcotest results. State v. Filson, 409 N.J. Super. 246, 258-61 (Law Div. 2009).

Defendant contends that since he was covering his face with his hands during the twenty-minute period, and the twenty-minute observation was not restarted, the breath test results should be excluded and the case remanded. Notably, defendant does not contend that an officer failed to observe him for the required period of time. Rather, defendant argues that there was some doubt as to the validity of the reading based upon a self-serving assertion that by his own "unobserved" conduct he had the potential to corrupt the accuracy of the Alcotest results. We find such assertions vague, illusory and wholly insufficient to defeat the proof of observation presented to the court through the in-station video. Further, defendant acknowledges that he did not burp, belch or regurgitate during the observation period. Nor has defendant submitted a certification that he ingested any substance or engaged in any conduct that the observation period is intended to protect against. Consequently, we conclude there was ample evidence in the record to establish by clear and convincing evidence, that twenty minutes elapsed while defendant was under observation and before the Alcotest examination began. As there is sufficient and credible evidence in the record to support the Law Division's conclusion that the Chun requirements were satisfied, we have no occasion to disturb those findings. Locurto, supra, 157 N.J. at 474.

II.

Defendant next contends the State failed to provide discovery of complete Alcotest data and repair records, denying defendant's right to review the test and operability of the used instruments.

The Alcotest is generally scientifically reliable, subject to certain ordered modifications, and its results are admissible to prove a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. Defendant argued that the reliability of the device used in his case was questionable because the State failed to produce certain data downloads that are routinely erased, and certain repair records of the specific Alcotest device that were created by the device's manufacturer.

We recently concluded that the State had no duty under discovery rules to disclose such evidence, and defendant had no constitutional right to its disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because such evidence was neither relevant nor material. State v. Robertson, 438 N.J. Super. 47, 66-73 (App. Div. 2014). To establish a Brady violation, the defendant must show "(1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001) (citations omitted).

"Evidence is considered material for Brady purposes, 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 455 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985)). "A 'reasonable probability' is one that is 'sufficient to undermine confidence in the outcome' of the trial." Ibid. (quoting Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494).

Based on our reasoning in Robertson, defendant's arguments with respect to repair records and erased data downloads lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

III.

Lastly, defendant argues that he was entitled to a jury trial on the DWI charge. Defendants in DWI matters are not entitled to a jury trial on the charges. See State v. Hamm, 121 N.J. 109, 112-30 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991); see also State v. Stanton, 176 N.J. 75, 87, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003) (noting that there is no right to a jury trial on DWI or other charges under Title 39). Defendant argues that since the Legislature amended DWI statutes after Hamm he is entitled to a jury trial. As we noted in Robertson and echo here, "we are unconvinced." Robertson, supra, 438 N.J. Super. at 73.

Affirmed. The stay of the sentence is vacated.

1 The Alcotest is administered by a certified Alcotest operator.

The Alcotest, consisting of a keyboard, an external printer, and the testing device itself, is positioned on a table near where the test subject is seated.

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[Chun, supra, 194 N.J. at 79.]