STATE OF NEW JERSEY v. BLAIR CREED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3496-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BLAIR CREED,

Defendant-Appellant.

_______________________________________

November 20, 2012

Argued October 16, 2012 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-19-11.

Kevin T. Conway argued the cause for appellant.

Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the brief).

PER CURIAM

Defendant Blair Creed appeals from an order entered by the Law Division on February 8, 2012, denying his motion to suppress Alcotest results. We affirm.

This appeal arises from the following facts. On October 28, 2010, Officer Douglas McDowell (McDowell) of the Montvale Police Department was traveling east on Grand Avenue. He observed defendant's car traveling west. The car crossed over the double yellow lines in the roadway and entered his lane of travel. McDowell turned his vehicle around and followed the car. The car again crossed over the double yellow lines in the road and almost struck a curb.

McDowell called for assistance and stopped the car. He approached the driver's side of the vehicle and asked defendant for his license and the paperwork for the vehicle. The officer detected the odor of an alcoholic beverage emanating from defendant and from the interior of the car. McDowell asked defendant if he had been drinking any alcoholic beverages. Defendant admitted he had four drinks.

McDowell then asked defendant to perform certain field sobriety tests. Thereafter, McDowell arrested defendant, charged him with driving while intoxicated (DWI) and transported him to the Montvale police headquarters. Defendant was informed of his Miranda rights.1 He did not, however, sign the waiver-of-rights form.

McDowell read the DWI Standard Refusal Statement to defendant. He signed the form, and indicated he would provide the requested breath samples. Officer Deak (Deak) observed defendant for twenty minutes, and Officer Earl Cruise (Cruise) began the test. The Alcotest machine aborted during the first control test, and the machine indicated a solution test change was required. The machine generated a report which stated that the test was aborted because the "control test failed."2

Cruise and Deak then transported defendant to the headquarters of the Park Ridge police headquarters. There, an officer observed defendant for twenty minutes, after which Cruise took defendant's breath samples. Defendant's first and third samples were acceptable. Defendant's blood alcohol content (BAC) was 0.16%.

Defendant was charged with DWI, N.J.S.A. 39:4-50; crossing over a double yellow line, N.J.S.A. 39:4-86; careless driving, N.J.S.A. 39:4-97; and failure to keep to the right side of the roadway, N.J.S.A. 39:4-82. Defendant subsequently filed a motion in the municipal court to suppress the Alcotest results.

At the hearing on the motion, defendant presented testimony from Mary McMurray (McMurray), who was qualified as an expert in alcohol testing, toxicology, and forensic science related to chemical breath tests. Among other things, McMurray testified that defendant provided two breath samples in Montvale, which she said was sufficient to determine his BAC.

The municipal court judge denied defendant's motion. The judge found that the Montvale police did not violate defendant's rights by transporting him to the Park Ridge police headquarters after the Alcotest machine in Montvale experienced a control test failure. The judge later determined that the police officers were not required to repeat the standard DWI refusal statement before defendant was tested in Park Ridge. The judge noted that defendant never refused to provide a breath sample, and found that the testing involved constituted "one continuous action."

Defendant thereafter entered a conditional plea of guilty to DWI, reserving his right to appeal from the denial of his motion to suppress on two grounds: (1) the police were not permitted to take defendant from Montvale to Park Ridge to administer the breath test after the control test failure of the Montvale Alcotest; and (2) the police were required to read the standard DWI refusal statement a second time when the test was administered in Park Ridge. The municipal prosecutor agreed to dismiss the remaining charges.

The municipal court judge imposed the following sentence: a $200 DWI surcharge; a $300 fine; twelve hours at the Intoxicated Driver Resource Center; the loss of driving privileges for seven months; various monetary assessments; and $33 in court costs. The judge stayed the sentence pending appeal.

Defendant appealed the denial of his motion to suppress to the Law Division. The court considered the matter on January 18, 2012, and denied defendant's motion. The court imposed the same sentence that the municipal court judge imposed, and stayed the sentence pending appeal to this court.

Defendant raises the following arguments for our consideration:

POINT I

[N.J.S.A.] 39:4-50.2 DOES NOT GIVE POLICE UNBRIDLED AUTHORITY TO TRANSPORT A DEFENDANT FROM JURISDICTION IN HOPES OF FINDING A BREATHALYZER MACHINE THAT WAS PROPERLY CALIBRATED HAVING CONDUCTED A TEST.

A. THE DEFENDANT FULLY COMPLIED WITH [N.J.S.A.] 39:4-50.2.

B. THE POLICE VIOLATED [N.J.S.A.] 39:4-50.2 BY FAILING TO PROVIDE AND MAINTAIN A PROPERLY WORKING AND CALIBRATED ALCO-TEST MACHINE.

POINT II

THE ORDER DENYING THE MOTION TO SUPPRESS IS INCONSISTENT WITH THE FACTS OF THIS CASE AND THE PRINCIPLES OF LAW.

A. FORUM SHOPPING IS NOT PERMISSIBLE.

B. IN THE ALTERNATIVE, IT IS ERROR TO HOLD THAT THE TWO SEPARATE TESTS WERE PERFORMED; YET, NOT REQUIRING TWO SEPARATE SETS OF DWI REFUSAL WARNINGS.

As noted, defendant argues that the Montvale police did not have authority to transport him from Montvale to Park Ridge to administer the Alcotest after the machine in Montvale experienced a control test failure. Defendant contends that he complied with N.J.S.A. 39:4-50.2(a) by providing breath samples at the Montvale police headquarters, and therefore he could not be required to provide additional breath samples in Park Ridge. We disagree.

N.J.S.A. 39:4-50.2(a) provides that any person who operates a motor vehicle on a roadway in this State "shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood[.]" The purpose of the statute is to allow police officers to determine the BAC of persons reasonably believed to be operating a motor vehicle under the influence of alcohol. State v. White, 253 N.J. Super. 490, 496 (Law Div. 1991). The statute requires a driver to provide breath samples for determining his or her BAC, and it does not specify the number of samples a driver must provide. Ibid.

Thus, N.J.S.A. 39:4-50.2(a) did not preclude the Montvale police officers from transporting defendant from Montvale to Park Ridge for the breath test after the control test failure of the Montvale Alcotest machine. Even if we assume that defendant provided two breath samples in Montvale as he claimed, the officers were not able to determine defendant's BAC there due to the machine's control test failure. We are satisfied that, under these circumstances, N.J.S.A. 39:4-50.2(a) did not preclude the Montvale officers from requiring defendant to provide additional breath samples in Park Ridge.

Defendant further argues that the Montvale police violated N.J.S.A. 39:4-50.2(a) by failing to provide and maintain a functioning and properly-calibrated Alcotest machine. Again, we disagree. Alcotest machines must be recalibrated on a semi-annual basis. Chun, supra, 194 N.J. at 123. The record shows that the Montvale machine had been recalibrated and certified less than four months prior to defendant's arrest. In addition, there is no evidence indicating that the control test failure experienced at the Montvale police headquarters was the result of improper calibration or maintenance of the Alcotest.

Defendant maintains, however, that the Montvale test could not be completed because the machine required a solution change and the State failed to explain why that condition was allowed to exist. However, as indicated in Chun, an Alcotest machine can experience a test failure when a solution change is required, and this can occur when the solution is not changed within thirty days or after twenty-five test sequences. Id. at 80 n.13.

The record indicates that the solution in the Montvale machine was last changed on October 4, 2010, which was within the twenty-five days noted by the Special Master. There also is no evidence that, when the officers attempted to test defendant, the Montvale machine had been used for more than twenty-five test sequences after the last solution change. We are therefore convinced the record does not support defendant's contention that the control test failure on the Alcotest at Montvale was due to a lack of diligence on the part of the Montvale police.

Defendant further argues that the Park Ridge Alcotest results should have been suppressed because the Montvale officers engaged in what defendant claims was forum shopping. In our view, this contention is without merit. As we have explained, the Montvale police officers transported defendant to Park Ridge for the Alcotest because of the Montvale machine experienced a control test failure. Consequently, the officers never determined defendant's BAC in Montvale. Thus, the officers did not transport defendant to Park Ridge to secure a more favorable BAC reading. Therefore, the record does not support defendant's claim of forum shopping.

Defendant additionally contends that the Park Ridge Alcotest results should have been suppressed because McDowell failed to repeat the standard DWI refusal warnings when the breath samples were taken in Park Ridge. We do not agree. N.J.S.A. 39:4-50.2(e) provides in pertinent part, that the police must "inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a]. A standard statement, prepared by the chief administrator [of the New Jersey Motor Vehicle Commission], shall be read by the police officer to the person under arrest."

Here, the warnings were read to defendant at the Montvale police headquarters and defendant was informed of the consequences of refusing to provide the breath samples. The officer was not required to repeat the warnings before the Park Ridge test because, as the municipal court judge found, defendant never refused to provide the breath samples, and the Park Ridge test was essentially a continuation of the testing begun in Montvale.

We have considered defendant's other arguments and find that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 It is not clear from the record whether defendant actually provided any breath samples at the Montvale police headquarters. The record indicates that the test was aborted during the control test, which is made with a vapor sample from a solution. State v. Chun, 194 N.J. 54, 80, cert. denied, 555 U.S. 825, 129 S. Ct. 158; 172 L. Ed. 2d 41 (2008). Defendant contends, however, that he provided two breath samples in Montvale.