STATE OF NEW JERSEY v. JOHN J. SWALA, Jr.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5102-04T35102-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN J. SWALA, Jr.,

Defendant-Appellant.

_______________________________________

 

Submitted April 24, 2007 - Decided May 23, 2007

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hunterdon County,

Municipal Appeal No. 17-A-2004.

Levow & Costello, attorneys for appellant

(Evan M. Levow, on the brief).

J. Patrick Barnes, Hunterdon County

Prosecutor, attorney for respondent (Sean

M. Foxe, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant John J. Swala, Jr. appeals from a conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, that was entered following a trial de novo in the Law Division. He argues that the State failed to prove the reliability of the breathalyzer test results, that his gastroesophageal reflux disease (GERD) rendered the tests unreliable, and that the evidence was inadequate to support a conviction based on the officer's observations. We conclude that defendant's conviction is amply supported by competent evidence in the record. See State v. Locurto, 157 N.J. 463, 471 (1999). Accordingly, we affirm substantially for the reasons stated by Judge Mahon in his oral decision of April 14, 2005.

The arresting officer saw defendant drive his car into an intersection controlled by a stop sign before stopping to check for oncoming traffic. The officer followed defendant's car and saw him drive it across the center line. He stopped defendant at approximately 12:08 a.m. As soon as he approached the car, the officer detected a "strong odor of alcoholic beverages." Defendant had difficulty removing his license from his wallet. When the officer asked defendant to get out of his car, defendant stumbled. The officer grabbed him by his shoulder to keep him from falling into the roadway. Defendant then staggered as he walked to the back of his car with the officer.

Although defendant told the officer that he knew the alphabet and had no physical impairments, he was unable to recite beyond the letter "G" or to stand on one leg for more than two seconds without assistance. After observing defendant's efforts, the officer placed him under arrest and drove him to headquarters.

At headquarters, a second officer, who was certified to administer breathalyzer tests, twice tested defendant's breath. In performing the tests, he read and followed each of the steps on the "breathalyzer checklist." He checked each entry on the list after completing each step. The completed checklist was admitted into evidence. The first test showed an alcohol concentration of .13. The second test showed a concentration of .14.

Defendant presented the testimony of two experts. He did not testify.

A former State Trooper gave testimony criticizing the reliability of roadside tests for intoxication and the manner in which this testing was done.

A toxicologist gave testimony suggesting doubt about the validity of the results of the breathalyzer tests given to defendant. According to the toxicologist, persons suffering from GERD frequently burp, which forces air from the stomach into the mouth. As a consequence, when a person who has alcohol in his or her stomach burps, the concentration of alcohol in that person's breath is higher than it would have been if the person had not burped.

Defendant did not testify, and there was no evidence that defendant burped or complained of any discomfort at any time while he was in the custody of either officer. His toxicologist, however, reviewed his medical records and found that defendant had been treated for "acid reflux." On that basis, he concluded defendant "could" suffer from GERD and could have burped at or around the time of the breathalyzer test.

After review of this record in light of the issues presented, we are convinced that defendant's conviction is supported by adequate competent evidence. See Locurto, supra, 157 N.J. at 471-75. The officer who tested defendant's breath testified at trial; his testimony and the breathalyzer checklist he completed were properly admitted into evidence and established his compliance with the testing protocol and the reliability of the tests he administered. Cf. State v. Renshaw, 390 N.J. Super. 456, 462-63 (App. Div. 2007). In addition, the testimony of the arresting officer provided sufficient evidence to permit a finding based on his observations.

The municipal court and the Law Division considered and were free to reject the testimony of defendant's experts, which was less than persuasive. Defendant simply has not shown the "very obvious and exceptional" error that is required to permit this court to disturb determinations made by the municipal court and the Law Division. See Locurto, supra, 157 N.J. at 474.

Affirmed.

 

Defendant was also charged with reckless driving, N.J.S.A. 39:4-96, and failure to stop or yield, N.J.S.A. 39:4-144. He was acquitted of reckless driving and convicted of failure to stop. He presents no argument concerning his conviction for failure to stop or his sentence for that violation.

Defendant contends that the officer failed to repeat essential steps when he performed the second breathalyzer test. That claim is based on a portion of the officer's testimony that defendant has taken out of context. The prosecutor asked, "Did you conduct the second test, without having to repeat it, in the same fashion as the first test?" The officer answered yes. The prosecutor, apparently recognizing the ambiguity of the question, clarified the question as follows: "Indicating that you read it to yourself and checking [sic] the box?" The officer answered yes. Thus, contrary to defendant's claim, this passage cannot be read to mean that the officer skipped any essential step when he performed the second test.

(continued)

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A-5102-04T3

May 23, 2007