STATE OF NEW JERSEY v. JULIAN REY-ARANGO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4034-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIAN REY-ARANGO,

Defendant-Appellant.

______________________________

October 26, 2012

 

Argued October 11, 2012 - Decided

 

Before Judges Sapp-Peterson and Haas.

 

On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5988.

 

Hugo Villalobos argued the cause for appellant.

 

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Michelle J. Ghali, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Julian Rey-Arango was convicted in the Elizabeth Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, he was again found guilty. As a first offender under N.J.S.A. 39:4-50(a)(1)(ii), defendant was sentenced to participate for twelve hours in the Intoxicated Driver Resource Program and his driving privileges were suspended for seven months. He was also required to pay mandatory fines and penalties.

On appeal, defendant raises the following contentions:

Point I.

 

THE FINDINGS OF THE LAW DIVISION COULD NOT HAVE BEEN REASONABLY REACHED AS THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE CONVICTION.

 

Point IIA.

 

THE FINDINGS OF THE LAW DIVISION COULD NOT HAVE BEEN REASONABLY REACHED AS THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE CONVICTION BEYOND A REASONABLE DOUBT ON THE POLICE OFFICER(S) OBSERVATIONS.

 

Point IIB.

 

THE FINDINGS OF THE LAW DIVISION COULD NOT HAVE BEEN REASONABLY REACHED AS THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE CONVICTION THROUGH THE USE OF THE ALCOTEST DEVICE AND THE SENTENCE OF 12 MONTHS SUSPENSION IS THEREFORE ILLEGAL.

 

Point IIC.

 

THE FINDING OF GUILTY OF THE DEFENDANT AND THE ILLEGAL SENTENCE OF 12 MONTHS SUSPENSION EXPOSED DEFENDANT TO DOUBLE JEOPARDY AND DUE PROCESS VIOLATION.

 

Point III.

 

THE LAW DIVISION ERRED IN FINDING THE DEFENDANT GUILTY OF VIOLATING N.J.S.A. 39:4-50, BECAUSE THE STATE FAILED TO PROVE THE PER SE VIOLATION ACCORDING TO THE MANDATES OF STATE V. CHUN.

 

 

Point III.(1).

 

Failure to admit the foundational documents.

 

Point III.(2).

 

Failure to prove the officers had probable cause and a basis for defendant's arrest was lacking.

 

Point III.(3).

 

Failure to prove by clear and convincing evidence that the officers observed the defendant for deprivation for 20 minutes before testing.

 

Point III.(4).

 

Failure to prove by clear and convincing evidence that the Alcotest operator changed the mouthpiece before each breath test and that he removed the radios and cell phones from the testing area.

 

Point III.(5).

 

Failure to force the State to provide the dataloads and the repair records of the applicable Alcotest machine prior to the State resting its case left the machine unreliable and the defendant unable to prepare his case.

 

Point III.(6).

 

Failure to dismiss the case because the State used the Control Company digital Thermometer, which may [b]e the whole cause of Alcotest malfunctioning.

 

Point III.(7).

Failure to schedule a timely and proper Rule 104 Hearing prior to trial as to the internal gages of the Alcotest device.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's DWI conviction. However, we remand to the Law Division for resentencing under N.J.S.A. 39:4-50(a)(1)(i).

I.

The State developed the following proofs at trial. On August 16, 2010, Officers Alana Farrow and David Chrysler were patrolling the streets of the City of Elizabeth. Sometime between 1:30 a.m. and 2:30 a.m., they came upon a car that was double-parked near an intersection. The car was running and its hazard lights were on. No one was visible in the car. The officers blew an air horn to see if anyone would respond to move the car. There was no response.

The officers approached the car and, as they did, they observed defendant "slouched over to the right of the vehicle asleep." The driver's side window "was already down." The officers tried to awaken defendant by shaking him, but he did not immediately respond. The officers shook him again and defendant "came to" and replied, "Leave me alone. Let me sleep." Chrysler got defendant to get out of the car. Chrysler testified that at the time defendant "stepped out of the vehicle, his eyes were glazed. He was swaying a little bit, talking." Chrysler "was able to smell alcoholic beverage on him" and defendant "stated he drank beer." Chrysler patted defendant down and then placed him under arrest for DWI.

Fowler's account of defendant's response to the officers was only slightly different. Fowler initially testified "[t]here was a light smell of alcohol" on defendant's breath after he left his car. Later, however, she said it was a "heavy alcoholic smell" and that defendant told her "he had a few beers." According to Fowler, defendant was responsive to the officers' request that he produce his driver's license, registration and insurance card. Fowler described defendant as "completely coherent, just a little tired." However, she also noted that defendant "was rambling" after he woke up and told her "to leave him alone, let him sleep." No field sobriety tests were performed by either officer.

The officers transported defendant to the police station. Once there, they contacted Sergeant Gregory Poliview, a certified Alcotest operator, to come to the station. During the fifteen-minute interval before Poliview arrived, Farrow "mostly" watched defendant. Chrysler prepared the arrest paperwork and had defendant sign a form indicating his consent to the Alcotest. The paperwork indicated that defendant had been arrested at 2:21 a.m. and he consented to the Alcotest at 2:51 a.m. Chrysler testified that, as they waited for Poliview, defendant "began rambling. He was still swaying and also he began crying, telling us that he's going to lose his job." Chrysler claimed that, between them, the officers observed defendant "20 to 25 minutes in total."

Once Poliview arrived, he set up the Alcotest and then administered it to defendant at 2:59 a.m. He testified he had no personal knowledge as to whether defendant had been observed by the other officers for at least twenty minutes prior to the start of the test or what any such observation revealed. The test resulted in a Blood Alcohol Content (BAC) reading of 0.14%.

Based upon the evidence presented, the Law Division judge found the State had proven, through the results of the Alcotest, that defendant was guilty of DWI. However, the judge noted that "[e]ven without the Alcotest, the officers, Alana Farrow and David C[h]rysler, above [sic] their observations of the defendant could have been proven beyond a reasonable doubt that the defendant operated the motor vehicle while under the influence of intoxicating liquor." The judge further stated, "[t]hat being said, the results of the Alcotest themselves in my view having reviewed this record, were properly admitted and used to convict the defendant."1 The judge found that "approximately 25 minutes" had passed between defendant's arrest and the first breath sample, which gave the officers the opportunity to "observe the defendant and verify that he did not regurgitate or swallow anything that would interfere with the Alcotest reading." He also found that defendant had not provided any evidence that the test had malfunctioned.

II.

We review the Law Division judge's findings by application of the standard enunciated in State v. Locurto, which requires appellate deference to factual findings when the findings could reasonably be reached through reliance on credible evidence in the record. 157 N.J. 463, 471 (1999). Only when the record produces a "feeling of 'wrongness'" - - that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" - - will we disregard a judge's factual findings. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). On the other hand, our review of the judge's "interpretation of the law and legal consequences that flow from established facts" is de novo. State v. Brown, 118 N.J. 595, 604 (1990).

"[A] violation of N.J.S.A. 39-4.50(a), may be proven 'through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level.'" State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006) (citing State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, o.b., 180 N.J. 45 (2004)). Here, the judge found the State had proven defendant's guilt on both grounds beyond a reasonable doubt.

Initially, defendant argues the Law Division judge erred in considering the results of the Alcotest as a basis to find defendant guilty of DWI. The Alcotest established that defendant's BAC was 0.14%. Defendant argues that the judge erred by admitting the results of the Alcotest because the State failed to comply with the requirements established by the Supreme Court for the introduction of this scientific evidence in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). We agree.

The Alcotest has been held to be "generally scientifically reliable" and its results are admissible to support a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. As a precondition for admissibility of Alcotest results, however, Chun requires the State to establish that: "(1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and (3) the test was administered according to official procedure." Id. at 134. To establish that the Alcotest was in proper working order when an arrestee's breath samples were taken, the State must enter into evidence three foundational documents:

(1) the most recent Calibration Report prior to a defendant's test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

 

(2) the most recent New Standard Solution Report prior to a defendant's test; and

 

(3) The Certificate of Analysis of the 0.10 Simulator Solution used in a defendant's control test.

 

[Id. at 154.]

 

Here, the State never submitted these three foundational documents in evidence at trial. Indeed, the only document that was entered in evidence was the Alcohol Influence Report (AIR), which Poliview testified was simply "the print-out2 from the [Alcotest]." Without the foundational documents, the State could not meet its burden of proving the Alcotest machine was in working order. State v. Holland, 422 N.J. Super. 185, 197-98 (App. Div. 2011) (holding that the State meets its burden of demonstrating the "proper working order" of the Alcotest device "by introducing into evidence the three core foundational documents").

The State argues that, "[a]lthough it is not explicitly enumerated in the list of trial exhibits, a fair reading of the transcript suggests that the State introduced these documents at trial." We disagree. The transcript contains no references to the required foundational documents.

We also reject the State's argument that defendant had the obligation to demand that it submit these documents as part of its case. As Chun makes clear, the State is required to produce the three foundational documents "in all pending prosecutions based on or including [the] Alcotest." Supra, 194 N.J. at 154. It cannot introduce or rely upon the results of the Alcotest without first introducing these documents. Ibid. In any event, defense counsel consistently complained before the municipal court that the State had not provided the documents required by Chun.

The State's argument that defendant conceded that the results of the Alcotest were admissible also lacks merit. After the municipal court judge found defendant guilty of DWI, there was a discussion on the record with counsel about a "worksheet." This document was not introduced in evidence and the record is unclear as to its content. It appears to have been a worksheet that was prepared by the prosecutor during a short recess following the verdict to assist the judge in determining the sentence. The worksheet was obviously not the three foundational documents required by Chun. After the recess, the following colloquy occurred between the judge and defense counsel:

THE COURT: The worksheet presented to me by the Prosecutor indicates that the machine was operating within the proper parameters on the evening in question. Is that satisfactory, Mr. Villalobos [defense counsel]? Have you had an opportunity to review that worksheet?

 

MR. VILLALOBOS: I reviewed it.

 

THE COURT: Okay.

 

MR. VILLALOBOS: Yes, Your Honor.

 

THE COURT: And you're satisfied the machine was operating properly during that time?

 

MR. VILLALOBOS: After reading the report, yes, Your Honor.

 

The judge then proceeded to sentence defendant, apparently using other information set forth in the worksheet.

The State contends that when defense counsel answered "yes" to the judge's question whether he was "satisfied the machine was operating properly during that time?," this constituted a concession that the machine was reliable, and a waiver of the requirement that it produce the three foundational documents. We disagree. When this discussion occurred, the judge had already found defendant guilty of DWI. Thus, the statement clearly could not constitute a stipulation by defense counsel that the results of the Alcotest were admissible or a "waiver" of the Supreme Court's requirement that the foundational documents be submitted in evidence in each DWI case as a pre-condition to the introduction of the Alcotest results.

In addition, defense counsel argued throughout the trial that the State had not submitted the documents it was required to introduce and rested defendant's case once it became clear that the State was not going to introduce any additional documents. This is in no way consistent with a waiver of the requirements imposed upon the State by the Supreme Court in Chun.

Therefore, the Alcotest results were not properly admitted in evidence and the Law Division judge could not rely upon them in finding a per se violation of N.J.S.A. 39:4-50.

III.

We turn to defendant's contention that the Law Division judge also erred in finding him guilty of DWI based upon his physical condition. To establish a violation of N.J.S.A. 39:4-50, the State must prove beyond a reasonable doubt that defendant was "under the influence of intoxicating liquor." To prove a defendant's intoxication, the State is entitled to rely on observational evidence such as defendant's "demeanor and physical evidence," as well as "proofs as to the cause of intoxication i.e., the smell of alcohol, an admission of the consumption of alcohol or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 588-89 (2006).

Contrary to defendant's contention, there was ample evidence to support defendant's DWI conviction based on his physical condition. The testimony of Fowler and Chrysler, which was credited by the judge, contained first-hand observations of defendant's demeanor. The judge found that the officers discovered defendant slumped over in the driver's seat of a double-parked vehicle, which was still running. They were unable to rouse him by blowing an air horn and had to shake him a couple of times before he awakened. Defendant smelled of alcohol and asked the officers "to leave him alone." Defendant admitted to drinking beer prior to the stop.

The record also indicates that defendant was swaying as he got out of the car and his eyes were glazed. While he was responsive to the officers' questions, he still "rambled," both at the scene and later at the police station. While waiting for the Alcotest officer to arrive, defendant began crying and he continued to sway.

As the judge found, this demeanor was consistent with that of a person under the influence of alcohol. We have held that "[a] defendant's 'slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes and strong odor of alcoholic beverage on [his] breath [are] sufficient to sustain a conviction for DWI.'" State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007) (citing State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003)). The observations made of defendant by the officers were sufficient to allow the judge to determine beyond a reasonable doubt that defendant was guilty of driving while intoxicated. Locurto, supra, 157 N.J. at 471.

Defendant's argument that the Law Division judge was bound by the fact-finding made by the municipal court judge lacks merit. It is well-established that the Superior Court judge "does not affirm or reverse what occurred in the municipal court. Rather, the Superior Court judge reviews the transcript and makes an independent determination of the sufficiency of the evidence presented, giving appropriate deference to any credibility assessments that the municipal court judge may have made." Kashi, supra, 360 N.J. Super. at 545. Thus, "[n]othing precluded the Superior Court judge from making his own assessment of the sufficiency of the evidence contained within the record." Ibid.

Contrary to defendant's argument, the municipal court judge made no reference to the credibility, or lack thereof, of the officers who testified before him. Rather, he was concerned that the officers had not performed field sobriety tests upon defendant at the scene. However, such tests are not required. State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that field sobriety tests are not needed to determine the effect of alcohol on a driver's physical and mental faculties where the totality of his behavior proved his guilt of DWI beyond a reasonable doubt). Therefore, we affirm defendant's conviction of DWI based upon his physical condition. Kashi, supra, 360 N.J. Super. at 545.

However, we remand this matter to the Law Division for resentencing. Based upon his BAC of 0.14%, defendant was sentenced under N.J.S.A. 39:4-50(a)(1)(ii), which provides that if a defendant's BAC level exceeds 0.10%, the suspension will be for between seven months and one year. As we have ruled, the judge erred in considering the Alcotest. Thus, defendant cannot be sentenced based upon his BAC results. Rather, defendant must be sentenced under N.J.S.A. 39:4-50(a)(1)(i), which applies where the defendant is found guilty of operating a motor vehicle "while under the influence of intoxicating liquor," and a BAC reading is not available.

Defendant's remaining arguments are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).

Affirmed; except remanded to the Law Division for resentencing. We do not retain jurisdiction.

 

1 The municipal court judge had ruled that the State had not proven, by the observational evidence presented by the officers, that defendant had driven while under the influence of alcohol. However, the judge ruled that the Alcotest had been properly admitted and demonstrated that defendant was guilty of DWI.

2 The AIR listed defendant's "name, age, gender, height, weight, his driver's license" and "date of arrest," together with the BAC reading.