STATE OF NEW JERSEY v. WILLIAM J. WHITE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5636-04T25636-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM J. WHITE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 11, 2006 - Decided February 6, 2006

Before Judges Parker and Miniman.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County, 04-101.

Shebell & Shebell, attorneys for appellant

(Peter M. O'Mara, on the brief).

Michael M. Rubbinaccio, Morris County

Prosecutor, attorney for respondent (Joseph

Connor, Jr., Assistant Prosecutor, on the

brief).

PER CURIAM

Defendant William J. White appeals from a judgment of conviction entered on June 27, 2005 after a trial de novo in which he was found guilty of driving while intoxicated, N.J.S.A. 39:4-50. He was sentenced to a seven-month suspension of his driver's license, plus the mandatory fines and penalties. We affirm.

The facts leading to defendant's arrest are as follows. On December 6, 2004, at 8:00 p.m., Chatham Police Officer Michael Sawyer observed a Jeep driven by defendant speeding on River Road. Sawyer followed the Jeep and paced it at fifty-one miles per hour. He stopped and took a stationary radar reading, registering fifty-three miles per hour. Sawyer activated his lights and siren and stopped the vehicle.

Sawyer testified that defendant smelled strongly of alcohol, his eyes were bloodshot and his speech was slurred. When the officer administered the field sobriety tests, defendant recited the alphabet from C to P, as requested, but with slurred speech. When asked to count backwards from forty-five to twenty-nine, defendant had difficulty understanding the instructions and was only able to count from forty-five to forty. Defendant was unable to perform the heel-to-toe step test. He was placed under arrest, taken to police headquarters and given a breathalyzer test on which he registered a .14% BAC.

In this appeal, defendant argues:

POINT ONE

THE ALLEGED BREATHALYZER READINGS SHOULD BE SUPPRESSED AS THE STATE HAS FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THEY ARE ADMISSIBLE

POINT TWO

THERE WAS NOT SUFFICIENT EVIDENCE TO PROVE MR. WHITE GUILTY BEYOND A REASONABLE DOUBT BASED ON THE OBSERVATIONS

Defendant argues that Romano v. Kimmelman, 96 N.J. 66, 82 (1984), and State v. Johnson, 42 N.J. 146, 171 (1964), require the State to prove that (1) the breathalyzer was in proper working order, having been periodically inspected in accordance with accepted procedures; (2) the test was administered by a properly certified operator; and (3) the test was administered in accordance with all official procedures. Defendant concedes that the first two requirements were met but argues that the breathalyzer was not operated in accordance with official procedures.

The breathalyzer test was administered by Detective Daniel Papa. Papa testified that he utilized the standard checklist and completed each step on the list. Papa then described the ampoule number and the procedure he used for clearing the machine and administering the test. On the first test, defendant registered .14%. Before completing the second test, Papa purged the machine and described his procedure for administering the second test on which defendant again registered .14%.

In performing each of the breathalyzer tests, Papa testified that he completed each of the fifteen steps indicated on the breathalyzer checklist. He checked the box next to each of the items, except for number fourteen which tells the officer to record the breath test result on the upper right-hand side of the form. Although Papa wrote the test result in the appropriate place, he inadvertently failed to check box number fourteen.

Although not explained in defendant's brief, Papa's failure to check box number fourteen appears to be the defect he claims requires reversal of his conviction.

N.J.A.C. 13:51-3.6(a)(2) requires that the checklist be used when the breathalyzer test is being administered. The regulation states that "[t]he sole purpose of a checklist is to provide a record of the taking of breath samples of a person." N.J.A.C. 13:51-3.6(a)(2).

We agree with Judge Salem Ahto when he stated:

[T]hat box that wasn't checked has nothing to do with the manner in which the test is performed. That box according to the administrative code has a purpose, and the sole purpose is to record the result and of course to make sure that the defendant knows what the result is.

. . . .

[This has] [n]othing to do, however, with the manner in which the instrument is prepared, or [how] the tests are conducted.

. . . .

Has the check list been fully complied [with] as the officer was trained? Well, he's trained to check off all the boxes. He didn't, but he did testify that he performed . . . the tests in the appropriate manner.

Judge Ahto concluded:

I'm satisfied that the . . . tests were properly administered, I'm satisfied that the date and time and results of the tests were provided, the results were introduced into evidence, so . . . I'm satisfied that this is a per se finding that's been made.

The officer's testimony indicates that he satisfied all of the requirements for a proper administration of the breathalyzer test. Moreover, his failure to check box fourteen is of no consequence to the outcome because the breathalyzer reading was properly recorded on the form. The checklist is an administrative aid to the proper administration of the test. Papa's testimony, as well as his completion of the form, other than checking box fourteen, satisfies the requirement under Romano that the test be performed in accordance with official procedures.

 
Defendant's second point is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2), and we affirm substantially for the reasons stated by Judge Ahto in his de novo decision.

Affirmed.

(continued)

(continued)

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A-5636-04T2

February 6, 2006