0STATE OF NEW JERSEY v. FRANK GARRAMONE August 5, 2015

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK GARRAMONE,

Defendant-Appellant.

___________________________________

August 5, 2015

Argued July 21, 2015 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 44-13.

Hercules Pappas argued the cause for appellant (Hercules Law Group, attorneys; Mr. Pappas, on the brief).

Alexis R. Agre, Assistant Burlington County Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant Frank Garramone pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50, but reserved his right to appeal the denial of his motion to dismiss the charges on the ground that he had not been given a copy of the Alcohol Influence Report and had not been informed of his right to obtain independent testing of his blood alcohol concentration on the night that he was arrested. We affirm.

Shortly after midnight on May 26, 2013, an Evesham Township Police Officer pulled over defendant who had committed a traffic violation while driving his Infiniti. Based on the officer's observations of defendant's physical appearance, demeanor, and poor performance on field sobriety tests, the officer transported defendant to the police department and administrated an Alcotest, which disclosed that defendant had a blood alcohol concentration of .12 percent. The officer issued three traffic summonses charging defendant with DWI, N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96, and making an unsafe lane change, N.J.S.A. 39:4-88(b).

Defendant did not file a motion to suppress the Alcotest. Rather, he filed a motion to dismiss all charges, alleging that before he was released on the morning of his arrest, police officers did not comply with certain Attorney General Guidelines by giving him a copy of the Alcohol Influence Report and informing him of his right to have his blood-alcohol concentration independently tested.

Defendant did not support his motion with a certification or otherwise attempt to establish by competent evidence that the Evesham Township Police Department did not follow the Attorney General Guidelines. The court denied his motion. Defendant then pled guilty to DWI and the prosecutor dismissed the remaining charges. The court suspended defendant's driving privileges for seven months, fined him $400, ordered him to spend twelve hours in an Intoxicated Driver Resource Center, and imposed appropriate assessments and penalties. The municipal court stayed the sentence pending appeal.

Defendant raised the same arguments at his trial de novo. In a brief that he submitted to the Law Division, defendant asserted: "Defendant was released without being provided a copy of the Alcohol Influence Report as mandated in the Attorney General Guidelines. Defendant was likewise not advised of his right to obtain independent testing of his breath and/or blood to determine his blood alcohol levels." Based on hearsay evidence from a court liaison officer that defendant recounted in his brief, defendant also asserted "that it was not the practice or policy of the Evesham police to so advise defendants or to provide a copy of the AIR." Accordingly, defendant sought dismissal of the charges.

The Law Division judge denied defendant's motion and imposed the same sentence that the municipal court judge had imposed. Defendant filed this appeal.

Defendant raises the following points

[I.] THE ATTORNEY GENERAL IS STATUTORILY ENACTED TO ISSUE GUIDELINES REGARDING DWI PROCESS AND PROCEDURE.

[II.] THE ATTORNEY GENERAL GUIDELINES MANDATE CONFORMITY WITH N.J.S.A. 39:4-50.2 AND REQUIRE THAT THE POLICE FURNISH THE DEFENDANT WITH A COPY OF THE ALCOHOL INFLUENCE REPORT.

[III.] POLICE POLICIES AND PROCEDURES MUST BE IN PLACE IN ORDER TO COMPLY WITH N.J.S.A. 39:4-50.2

[IV.] NONCOMPLIANCE WITH 39:4-50.2 AND WITH THE ATTORNEY GENERAL GUIDELINES ARE CONSTITUTIONAL VIOLATIONS.

[V.] THE LAW MUST BE STRICTLY CONSTRUED SO AS TO RESOLVE ALL INTERPRETATION IN FAVOR OF THE DEFENDANT.

[VI.] THE BURDEN ON THE TOWNSHIP IS MINIMAL BUT THE PREJUDICE TO THE DEFENDANT IS CRIPPLING.

[VII.] THE ONLY REMEDY IS DISMISSAL.

[VIII.] [THE MUNICIPAL COURT AND LAW DIVISION JUDGES] ERRED IN NOT ALLOWING THE DEFENDANT AN OPPORTUNITY TO DEVELOP THE TESTIMONY OF THE OFFICER ON THE ISSUES RAISED IN DEFENDANT'S MOTION.

Defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

N.J.S.A. 39:4-50(a) provides in pertinent part

Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic, or habit-producing drug or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject [to the following penalties.]

The statute makes clear that when a defendant has consumed alcohol and operates a motor vehicle, he violates the statute either by driving while under the influence of alcohol or by driving when his blood alcohol concentration is 0.08% or higher. Thus, the State can prove a violation of this statute based on the observations and opinion of the arresting officer, without Alcotest results. State v. Kent, 391 N.J. Super. 352, 355, 383-85 (App. Div. 2007). In view of the strong public policy underlying the DWI statute "remov[ing] intoxicated drivers from our roadways and thereby . . . 'curb[ing] the senseless havoc and destruction' caused by them[,]" State v. Sorensen, 439 N.J. Super. 471, 495 (App. Div. 2015) - dismissing a DWI charge in its entirety based on procedural issues related to the Alcotest, when the charge could be proved solely by a police officer's observations, would serve no purpose. Defendant has cited no authority compelling such a result and we fail to discern any compelling policy that would be served by such a result. Moreover, we have rejected the argument that, absent prejudice, "disclosure of the AIR on request, rather than in the police station, would require suppression." Id. at 491.

We also agree entirely with the Law Division that defendant's failure to produce any competent evidence to support his claim is fatal. See State v. Howard, 383 N.J. Super. 538, 548 (App. Div.) certif. denied, 187 N.J. 80 (2006). And his claim is belied, at least in part, by the arresting officer's report, which defendant has included in the appellate record. That report documents that the officer "read the New Jersey Motor Vehicle Commission Standard Statement Form to Garramone and he indicated that he would submit samples of his breath." The Standard Statement includes the following information

3. A record of the taking of the breath samples, including the test results, will be made. Upon your request, a copy of the record will be made available to you.

4. After you have provided samples of your breath for testing, you have the right, at your own expense, to have a person or physician or your own selection take independent samples of your breath, blood or urine for independent testing.

[New Jersey Attorney General's Standard Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.2(e)) (revised & eff. July 1, 2012), available at http://www.njsp.org/divorg/invest/pdf/adtu/0 70912_dwi_standardstatement.pdf.]

Having failed to file a suppression motion, having failed to cite any precedent supporting the wholesale dismissal of the charges against him, and having failed to present to the municipal court and Law Division any competent evidence demonstrating even a colorable claim that the Evesham Township Police Department has a policy of non-compliance with Attorney General Guidelines, defendant's arguments were properly dismissed by the municipal court and Law Division judges.

Affirmed.