STATE OF NEW JERSEY v. BRIAN J. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5427-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN J. SMITH,

Defendant-Appellant.

___________________________________

April 19, 2011

 

Submitted March 30, 2011 - Decided

 

Before Judges Nugent and Newman.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 06-10.

 

The Ritter Law Office, L.L.C., attorneys for appellant (Matthew W. Ritter, Assigned Counsel, on the brief).

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Marianne V. Rogers, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Brian J. Smith was convicted of driving while intoxicated (DWI) based upon an excessive blood alcohol concentration (BAC) shown by Alcotest readings. The judge sentenced defendant to a seven-month revocation of his driving privileges, ordered that he attend twelve hours at an Intoxicated Driver Resource Center, and imposed appropriate fines and penalties. On appeal, defendant raises the following issues:

POINT I: THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TWENTY-MINUTE RULE WAS MET.

 

POINT II: THE CREDIBILITY DETERMINATION, UPON WHICH BOTH LOWER COURTS BASED THEIR DECISIONS, WAS FLAWED.

 

We affirm.

I.

On August 30, 2009, following a traffic stop, defendant was taken to the Millville police station and charged with DWI after two of his breath samples, analyzed by an Alcotest, disclosed his BAC to be 0.12%. He moved to suppress the BAC reading, contending the officer operating the Alcotest did not observe him for twenty consecutive minutes before taking his first breath sample, the observation period being a pre-condition to admitting the Alcotest results into evidence. The only witnesses to testify at the municipal court hearing were Millville Police Detective John Redden and defendant.

Redden testified defendant was brought to the station for breath testing. Three other officers were present. Redden was certified to administer the Alcotest and understood that an Alcotest operator must observe a subject for twenty minutes before taking the first breath sample. Redden entered the room at 12:58 a.m., turned on the Alcotest at 1:20 a.m., and administered the first test at 1:23 a.m. He observed defendant for more than twenty minutes, using his wristwatch to time the observation period, and was never more than six or seven feet from defendant. Defendant did not belch, consume anything orally, or leave Redden's sight.

Defendant wanted to use some lip balm but Redden took that from him. Defendant repeatedly requested to use the bathroom, but Redden would not allow it; he never let arrestees use the bathroom during the "observation" period. Redden administered four tests because defendant gave an inadequate breath sample on two. When testing was complete, Redden permitted defendant to use the bathroom.

According to defendant, Redden did not observe him for twenty minutes before taking the first breath sample. One of the officers denied defendant's request to use the bathroom, but when defendant insisted he "really had to go," another officer un-handcuffed him and permitted him to use a bathroom in a cell. Defendant could not remember which officer permitted him to use the bathroom, but no officer accompanied him, and the officers could not observe him when he used the bathroom. Redden administered the Alcotest when defendant returned.

The municipal court judge found Redden's testimony credible and determined the State had demonstrated by clear and convincing evidence that Redden observed defendant in excess of twenty minutes before administering the Alcotest. In making his credibility determination, the judge noted that defendant was under the influence of alcohol. Following the court's decision, defendant entered a conditional guilty plea to DWI. After a trial de novo, the Law Division determined that the State "proved compliance with the twenty-minute Alcotest observation period by clear and convincing evidence," convicted defendant of DWI, and sentenced him.

II.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The function of the Law Division in a trial de novo is to determine the case completely anew on the record made in the municipal court. See State v. Johnson, 42 N.J. 146, 157 (1964). The judge must give due regard, although not necessarily controlling weight, to the opportunity of the municipal court judge to evaluate the credibility of the witnesses. Ibid. Our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one. Ibid.

We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "Under the two-court rule, appellate courts 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.

Defendant was convicted based on Alcotest results. The Alcotest has been held to be "generally scientifically reliable," and with certain modifications, its results admissible to support a per se violation of N.J.S.A.39:4-50. State v. Chun, 194 N.J.54, 65, cert. denied, U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). As a pre-condition to the admissibility of the Alcotest results, the device's operator "must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol[]" and to assure that the test subject has not swallowed anything, regurgitated, or chewed gum or tobacco. Id.at 79.

Defendant contends the Law Division erred by concluding the Alcotest operator observed defendant for twenty minutes before administering the test. He argues the State did not clearly and convincingly establish the twenty-minute observation period because Redden's testimony conflicted with his, and the State did not call any of the other three witnesses. Defendant cites no authority to support his argument. The issue turned on credibility and the Law Division believed Officer Redden. There is ample evidence in the record to support the Law Division's findings of fact and credibility determinations. Locurto, supra, 157 N.J.at 474; see alsoState v. Ugrovics, 410 N.J. Super.482, 489-90 (App. Div. 2009), certif. denied, 202 N.J.346 (2010).

Defendant also contends the municipal court erred in considering defendant's intoxication when determining credibility, because the Alcotest results were the only evidence of his intoxication and they were at issue in the suppression hearing. Defendant asserts the Law Division compounded the error when it concluded there was no reason to disturb the municipal court's credibility findings. However, the Law Division made an independent determination of Officer Redden's credibility:

It is also clear to this Court that Detective Redden not only said it didn't happen here in terms of letting the defendant go to the bathroom but he said quite firmly, "I have never let a defendant go to the bathroom during a 20-minute observation period."

 

Therefore, I find that there is sufficient evidence and the State has met its burden of proof by clear and convincing evidence for the [Alcotest] to be administered.

 

T

he Law Division's findings are supported by sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162. Accordingly, we affirm.