STATE OF NEW JERSEY v. CHARLES G. DIMARCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES G. DIMARCO,

Defendant-Appellant.

_______________________________

August 9, 2013

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 54-2009.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Kimberly A. Schultz, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Tzvi Dolinger, on the brief).

PER CURIAM

In a trial de novo before the Law Division, defendant Charles G. DiMarco was found guilty of a per se violation of driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on the results of an Alcotest. He was sentenced to three months loss of his driving privileges and twelve hours of instruction through the Intoxicated Driver Resource Center, along with fines and penalties. On appeal, he raises this single argument challenging the administration of the Alcotest:

THE ALCOTEST READING IS INADMISSIBLE BECAUSE THE STATE FAILED TO SHOW THAT THE ALCOTEST MACHINE WAS OPERATED IN A PROPER MANNER.

Following our review, we affirm. In our discussion, we recite only facts related to the single issue on appeal, omitting discussion of other events and issues raised in the prior proceedings.

Defendant was stopped after his vehicle passed, at a high rate of speed, the vehicle of arresting officer Michael Carullo of the Edison Township Police Department. Ultimately, defendant was arrested for DWI and transported to the Metuchen police station for breath testing. Upon arrival, another Edison officer, Patrolman Brian Freud, a certified Alcotest operator, was completing his testing of another suspect. Patrolman Freud prepared to test defendant by placing the Alcotest in front of him and seating defendant to his left. Patrolman Freud explained he always clears the room of cell phones and makes sure all portable radios are turned off or left outside the testing room before he prepares for testing. He next commenced the "initiation of the Alcotest machine, which is prompted" as the machine tells the preparer what information to input. Officer Carullo read defendant the required statement regarding refusal, as Patrolman Freud finished preparing the Alcotest to accept the first breath sample. Patrolman Freud read defendant the Alcotest instructions then defendant blew into the machine. Since the first sample was inadequate, Patrolman Freud waited for the machine to purge, perform the ambient air checks, and issue the cue for the next breath sample. Two successful breath samples were obtained. Patrolman Freud recorded the results, showing a blood alcohol concentration of .08 percent, and provided defendant with a copy.

Patrolman Freud recited his Alcotest training and experience, stating he had performed approximately forty tests. When asked on cross-examination whether he or Officer Carullo had observed defendant prior to administering the Alcotest, he responded: "Yeah, we were both in the same room with [defendant]." He explained defendant sat next to him, and he watched him as he simultaneously logged the information into the machine. Patrolman Freud affirmed he observed defendant for twenty minutes.

The State introduced the foundational documents for the Alcotest, which were maintained by the police department in the ordinary course of business. Further, the Alcohol Influence Report of defendant's tests was admitted.

The Law Division judge, guided by State v. Chun, 194 N.J. 54, cert. denied, 55 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), reviewed this evidence and found, as had the municipal court judge, the police had properly prepared the Alcotest machine prior to administering defendant's tests. He noted, "[c]onsidering the number of steps undertaken by an officer for every Alcotest administered, requiring testimony as to the completion of each individual step seems impractical." He admitted the test results and concluded defendant had committed a per se violation of N.J.S.A. 39:4-50.

In our review, we determine whether the Law Division's judgment is supported by sufficient credible evidence in the record. State v. Ugrovics, 410 N.J. Super. 482, 487 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). Further, we are not bound by "[a] trial court's interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). We review legal issues de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 609 (App. Div. 2007).

In Chun, supra, the Court considered the scientific reliability of the Alcotest, and set forth procedures for administering the test. 194 N.J. at 77-148. Describing pre-testing procedures, the Court explained:

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrested swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[Id. at 79.]

In his testimony, Patrolman Freud affirmed he followed the machine's prompts prior to requesting defendant's breath sample, defendant sat beside him, within his line of sight, and both he and Officer Carullo watched defendant for the requisite twenty minutes. Defendant also testified. He acknowledged he did not drink anything, spit up, chew gum, or otherwise place anything in his mouth that would compromise the accuracy of the test. Thus, the Law Division judge's finding that the procedures to assure the test's accuracy were fully followed was based on substantial credible evidence in the record, and will not be disturbed.

Defendant additionally argues there was no specific testimony regarding changing the mouth piece of the Alcotest machine. Pointing out, when he arrived at the stationhouse, another suspect was being tested on the same machine he used to test defendant, yet no testimony proved the mouthpiece was changed.

"[T]here is a key difference between the responsibilities of the operator in administering the Alcotest and the State's burden of proof at trial." Ugrovics, supra, 410 N.J. Super. at 489. While the test operator must ensure he attaches a new mouthpiece to the machine before taking a breath sample, among a litany of other procedural steps, Chun, supra, 194 N.J. at 140, a trial court may find from the totality of the State's evidence that complete and proper procedures were followed, notwithstanding the absence of direct testimony on each and every procedural step followed by the Alcotest operator.

That is exactly what occurred in this matter. Patrolman Freud provided testimonial evidence of the procedures he followed in the administration of the Alcotest, which he had completed at least forty times. He noted he completed the testing of the prior suspect then began to prepare the machine to test defendant. He stated he followed the required procedures and completed all prompts given by the machine.

We have noted, "one of the benefits associated with the Alcotest is its automation, which is intended to reduce the role of the operator and thereby minimize the potential for human error." Ugrovics, supra, 410 N.J. Super. at 490. Based on this record, we have no basis to attack the findings of the Law Division judge that the Alcotest was properly performed and no steps were skipped. Further, the judge's decision to admit as reliable the Alcotest results was not improper. The State's evidence conclusively supports the conclusion defendant was guilty of DWI beyond a reasonable doubt.