STATE OF NEW JERSEY v. WALTER R. KAWKO, IV

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5391-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER R. KAWKO, IV,

Defendant-Appellant.

-

Argued March 19, 2013 Decided May 15, 2013

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 45-2011.

John Menzel argued the cause for appellant.

Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief; Matthew P. Tallia, on the brief).

PER CURIAM

Defendant Walter Kawko appeals from an order entered by the Law Division on June 15, 2012, denying his motion to suppress Alcotest results and request for a jury trial. We affirm.

This appeal arises from the following facts. On the night of August 19, 2009, the Woodbridge Police Department pulled over the automobile defendant was operating due to a report that it had left the scene of an accident. The police transported defendant to headquarters where he submitted to an Alcotest breath examination. The Alcotest recorded defendant's blood alcohol content (BAC) at 0.17 percent.

The police placed defendant under arrest, charging him with driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129(b); and failure to report an accident, N.J.S.A. 39:4-130.

Thereafter, the Woodbridge Municipal Court denied defendant's request for a jury trial. Defendant then filed a motion to suppress the Alcotest results due to the State's failure to use the Ertco-Hart digital temperature monitoring measuring system. The municipal court granted defendant's motion; however, in accordance with our decision in State v. Holland, 423 N.J. Super. 309 (App. Div. 2011), the municipal court subsequently granted the State's motion to reconsider the suppression of the Alcotest results.

Defendant again moved to exclude the Alcotest results, claiming the State failed to (1) provide complete electronic data files; (2) use an Ertco-Hart digital thermometer during calibration; and (3) provide additional discovery. The municipal court denied this motion.

On September 8, 2011, defendant entered a conditional plea of guilty to DWI, reserving his right to appeal the denial of his motion to suppress and his request for a jury trial. Following defendant's conditional guilty plea, the municipal court granted the State's motion to merge and dismiss the other three charges. The municipal court sentenced defendant to a term of 180 days in the Middlesex County Jail, a ten year driver's license suspension, forty-eight hours in the intoxicated driver resource program, and fees and costs.

Defendant appealed his conviction to the Law Division, and again argued for suppression of the Alcotest results and renewed his request for a jury trial. On June 15, 2012, the court rejected defendant's challenge to the Alcotest results and request for a jury trial, and found him guilty. The court imposed the same sentence as the municipal court, and stayed the sentence pending appeal to this court.

On appeal, defendant raises the following arguments for our consideration:

I. The State's Failure to Provide Complete Alcotest Data, Irrespective of the Good Faith or Bad Faith of the Prosecution, Violated Due Process Because This Data Is Material to Guilt and Punishment.

A. Electronic Data Files from the Alcotest Used to Test Defendant's Breath are Missing.

B. Downloaded Data Is Material, Relevant, Exculpatory Evidence.

C. The State Intentionally Withheld or Destroyed Material, Relevant, Exculpatory Evidence in Bad Faith.

D. The Failure of the Process in This Matter Was So Blatant, the Denial of Fundamental Fairness Was So Great, and the Integrity of the Judicial Process So Crippled, as to Warrant Dismissal.

II. Because the State Failed to Use an Ertco-Hart Probe, This Court Should Exclude the Alcotest Result.

III. Defendant Was Entitled to a Jury Trial, Given Both His Exposure to More than 180 Days Imprisonment and the Legislature's Packing of Penalties for DWI.

We first address defendant's argument pertaining to the missing electronic data records. Specifically, defendant claims that five of the six Alcotest electronic data sets were incomplete. Thus, according to defendant, the Alcotest results should have been suppressed. We disagree.

Pursuant to State v. Chun, 194 N.J. 54, 153, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the State must disclose twelve "foundational" documents in discovery pertaining to the Alcotest:

(1) New Standard Solution Report of the most recent control test solution change, and the credentials of the operator who performed that change;

(2) Certificate of Analysis for the 0.10 percent solution used in that New Solution Report;

(3) Draeger Safety Certificate of Accuracy for the Alcotest CU34 Simulator;

(4) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe;

(5) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Instrument;

(6) Calibration Records, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;

(7) Certificate of Analysis for the 0.10 percent solution used in the calibration control test;

(8) Certificate of Analysis for the 0.04, 0.08, and 0.16 percent solutions used in the calibration linearity test;

(9) New Standard Solution Report, following the most recent calibration;

(10) Draeger Safety Certificates of Accuracy for the Simulators used in calibration;

(11) Draeger Safety Certificate of Accuracy for the Alcotest 7110 Temperature Probe used in calibration; and

(12) Draeger Safety Ertco-Hart Calibration Report[.]

To admit the Alcotest results at trial, the State must enter three "core foundational" documents into evidence: "(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 tests." Id. at 148.

As part of the Alcotest machine's normal functioning, it produces electronic data records. Id. at 90. In Chun, the Court ordered that the State "[c]reate and maintain a centralized statewide database, comprised of downloaded Alcotest results, and . . . make the data, following appropriate redactions of personal identification as needed, available to defendants and counsel[.]" Id. at 153. A DWI defendant is also entitled to the downloaded Alcotest results from the date of the machine's last calibration. State v. Maricic, 417 N.J. Super. 280, 286-88 (App. Div. 2010).

Here, the State provided defendant with the twelve foundational documents required by Chun and access to the Alcotest machine's electronic data records. The State admits there was some missing data, claiming it was purged as a result of "the normal functioning of the machine." Our review of the record reveals no evidence that the missing data pertained to any of the foundational documents. Defendant did not provide a certification or expert testimony as to how the missing data tainted the Alcotest results.

Moreover, on appeal, defendant fails to provide anything more than a bald assertion in support of his claim that the State improperly withheld the data. "Where the lost evidence is merely potentially exculpatory, the court's finding of bad faith is crucial. In the absence of bad faith, relief should be granted only where there is a showing of manifest prejudice or harm arising from the failure to preserve evidence." George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (internal quotation marks and citations omitted). Accordingly, we see no basis in the law or the record to support defendant's contention that the Alcotest results should have been suppressed based on the missing data.

We now turn to defendant's argument that the Alcotest results should have been suppressed due to the State's failure to use the Ertco-Hart Temperature Probe. In Holland, supra, 423 N.J. Super. 309, we held that the State is not required to use the Ertco-Hart Temperature Probe. Here, the State used the Control Company digital thermometer, which in Holland we determined "is comparable in all material respects to the Ertco-Hart digital thermometer previously used during the Alcotest calibration process; and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by Chun[.]" Id. at 319. We discern no reason based on defendant's arguments to diverge from our holding in Holland.

Finally, we address defendant's argument that he was entitled to a jury trial. Defendant bases his argument on the assertion that the aggregate penalties he faced were greater than 180 days of incarceration. We determine this argument lacks merit.

In Blanton v. North Las Vegas, 489 U.S. 538, 539, 109 S. Ct. 1289, 1291, 103 L. Ed. 2d 550, 554 (1989), the United States Supreme Court held that DWI offenders facing a prison term of six-months or less are not guaranteed a jury trial, but noted that one may be required "in the rare situation where a legislature packs an offense it deems serious with onerous penalties that nonetheless do not puncture the [six]-month incarceration line." Id. at 543, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57.

New Jersey does not recognize a right to a trial by jury for DWI, which under state law is considered a motor-vehicle offense rather than a criminal offense. State v. Hamm, 121 N.J. 109, 116 (1990), cert. denied, 499 U.S. 947, 111 S. Ct. 1413, 113 L. Ed. 2d 466 (1991). "Despite the fact that the Legislature regards DWI as a profound social problem, it has yet to impose the full force of law on that offense that would denote a social evaluation that DWI is a 'crime' or an offense that equates with the need of trial by jury." Ibid. However, in situations where a DWI defendant is also charged with "'factually related petty offenses . . . whose maximum sentences [when combined with the DWI sentence] total more than six months, and the defendant is not offered a jury trial, the sentences may not total more than six months.'" State v. Federico, 414 N.J. Super. 321, 330 (2010) (quoting State v. Linnehan, 197 N.J. Super. 41, 43 (App. Div. 1984), certif. denied, 99 N.J. 236 (1985)).

Here, defendant's DWI charge carried a potential prison sentence of up to 180 days, N.J.S.A. 39:4-50(a)(3), his careless driving charge a potential prison sentence of up to 15 days, N.J.S.A. 39:4-104, and his leaving the scene of an accident charge a potential prison sentence of up to 30 days, N.J.S.A. 39:4-129(b). However, we see nothing in the record to suggest that defendant faced any real risk of receiving a prison term greater than 180 days. If a sentence greater than 180 days had been entered, our holding in Federico would have limited defendant's sentence to 180 days. Moreover, the additional fines, penalties, and surcharges defendant faced were not "onerous" penalties triggering a right to a jury trial. See Blanton, supra, 489 U.S. at 543, 109 S. Ct. at 1293, 103 L. Ed. 2d at 556-57. Thus, federal and State precedent support the Law Division's decision to deny defendant's request for a jury trial.

Affirmed.