STATE OF NEW JERSEY v. DAVID C. FIDALGO

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4211-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID C. FIDALGO,

Defendant-Appellant.

________________________________________

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March 1, 2007

Argued January 10, 2007 - Decided

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5769.

Timothy J. Dey argued the cause for appellant.

Nathan R. Hewette-Guyton, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).
 
PER CURIAM

On April 24, 2005, defendant David Fidalgo was stopped while traveling on the Garden State Parkway after Trooper John Salvato, a seventeen-year veteran of the New Jersey State Police and a certified breathalyzer operator, observed him speeding. Following further investigation, which included the performance of roadside sobriety tests and administration of a breathalyzer test, Fidalgo was charged with speeding, N.J.S.A. 39:4-98, and driving while under the influence (DWI), N.J.S.A. 39:4-50. He was convicted of both charges in Municipal Court and appealed the DWI conviction to the Law Division. Following a de novo review of the record, the Law Division reversed that part of the DWI conviction based upon defendant's alleged failure to adequately perform Standard Field Sobriety Tests (SFSTs), but convicted defendant of the per se violation based upon the .08 blood alcohol concentration (BAC) reading. Defendant filed a timely appeal. We affirm.
Defendant raises the following arguments for our consideration on appeal:
POINT I
DEFENDANT'S B.A.C. RESULTS MUST BE SUPPRESSED AS THE TROOPER LACKED PROBABLE CAUSE TO ARREST ABSENT PROPERLY ADMINISTERED SFST[]s.

POINT II
DEFENDANT CANNOT BE CONVICTED OF N.J.S.A. 39:4-50 AS THE STATE CANNOT MEET ITS BURDEN OF PROOF WITH REGARD TO THE BREATHALYZER READINGS.

THE TRIAL JUDGE APPLIED THE WRONG STANDARD IN DETERMINING STATE'S BURDEN OF PROOF.

Our standard of review on an appeal from a trial de novo in the Law Division is to determine whether there is "sufficient credible evidence" in the record to support the findings by the Law Division judge. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
Defendant contends the BAC results should have been suppressed because the trooper lacked probable cause to request that defendant submit to a breathalyzer examination. We reject this claim for two reasons. First, defendant never moved to suppress the BAC test results. Pursuant to Rule 7:5-2(d), a motion to suppress must be made prior to trial. No such motion was made, nor was an oral motion made at the time of or during the trial. "[A] defendant must act expeditiously and must raise the suppression issue as soon as he becomes aware of same." State v Colapinto, 309 N.J. Super. 132, 137 (App. Div. 1998) (citing State v. DiRienzo, 53 N.J. 360, 384 (1969)). Here, before both the Municipal Court and the Law Division, defendant challenged the manner in which the SFSTs were performed, but only regarding defendant's contention that the State could not meet its burden of proof as to the substantive elements of the DWI conviction. Thus, defendant's suppression argument is not properly before us. See DiRienzo, supra, 53 N.J. at 384.
Second, irrespective of the deficiencies the Law Division judge found as to Trooper Salvato's administration of the SFSTs, the judge was satisfied, based upon the record, that "there was a reasonable, articulable suspicion to . . . stop defendant and to investigate further[.]" The judge indicated that "[i]t's clear to me that [defendant] could not recite the alphabet. It's clear to me that [defendant] had the odor of alcohol on his breath. It's clear to me that [defendant] was driving in excess of the speed limit."
Based upon our review of the record, we are satisfied that the findings of the Law Division judge are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See Locurto, supra, 157 N.J. at 472-74; State v. Johnson, 42 N.J. at 162.
Defendant next argues that because the post-breathalyzer machine inspection certificate reported an overheating problem, the onset of which could not be determined, the BAC test could not have been properly administered. Additionally, defendant contends that since the simulator solution is calibrated at .10 and not to .08, the current level for a per se DWI violation, there remains the potential for false positives in the testing protocols.
Breathalyzer tests in New Jersey are considered scientifically reliable as long as certain conditions are met. In Romano v. Kimmelman, 96 N.J. 66, 82 (1984), the Court held,
[T]he results of a breathalyzer test shall be generally admissible in evidence when the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures, and that such results may, upon the establishment of these conditions, form the basis upon which a conviction of violating N.J.S.A. 39:4-50 may be obtained.
 
Five days before Trooper Salvato administered the BAC test to defendant, the machine utilized was inspected. The inspection certificate indicated that the machine functioned properly. The machine was again tested ten days later and an overheating problem was detected. The trooper who inspected the machine noted the following remarks in his report: "During periodic inspection observed instrument heated beyond the proper operating temperature range. Thermostat was adjusted correcting the malfunction. The existence of this malfunction would make adherence to the check-off list impossible."
Salvato testified that prior to administering the test, he performed the pre-test, as outlined in the Alcohol Influence Report Checklist, which, among other pre-test requirements, calls for the officer administering the test to check the machine's temperature and to discontinue the test if there is any indication of overheating. On cross-examination, Salvato acknowledged that he did not know the exact temperature of the machine at the time the test was performed, but testified that "it was in the proper temperature range," which he described as "between the lines, plus or minus three degrees." He also testified that he watched the temperature range, as he was required to do, during the test.
With respect to the simulator solution, the Certificate of Analysis for the breath alcohol simulator solution was admitted into evidence without objection.
The court expressly found that the State demonstrated the proper working order of the breathalyzer machine by clear and convincing evidence and that Trooper Salvato administered the breathalyzer test "according to [S]tate [P]olice protocol and established protocol through the State of New Jersey." The court specifically rejected the claimed defects raised by defendant:
I am not persuaded by [defense counsel's] arguments regarding the simulator solution, that it was calibrated to .10 and not to .08. I'm not satisfied that the machine was not in working -- proper working condition.

If -- if the officer observed protocols, then the item -- that the machine would have been determined to be inoperable and would not have been -- the test could not have been completed on that machine.

 
We agree with these observations.
In State v. Maure, we recognized that State Police certifications of such reliability may be "challenged by evidence that the test ampoule was in some way defective." 240 N.J. Super. 269, 283 (App. Div. 1990), aff'd, 123 N.J. 457 (1991). While both the State and defense experts agreed that depletion of the simulator solution may produce higher BAC readings, nothing in the record pointed to evidence of any depletion in the simulator solution utilized here. Thus, defendant's claim that there was the potential for a false positive in the testing protocols administered by Salvato is entirely speculative. See State v. Benas, 281 N.J. Super. 251, 255 (App. Div. 1995).
Finally, contrary to defendant's position, the State's burden to prove the requirements set forth in Romano, supra, is clear and convincing proof. Romano, supra, 96 N.J. at 90.
We are satisfied the findings of the Law Division judge are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See Locurto, supra, 157 N.J. at 472-74; Johnson, supra, 42 N.J. at 162.
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Affirmed.

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