STATE OF NEW JERSEY v. SKENDER BRUNCAJ

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NOT FOR PUBLICATION WITHOUT THE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.

SKENDER BRUNCAJ,

Defendant-Appellant.

__________________________________

December 3, 2014

 

Submitted November 5, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-026.

Scarinci & Hollenbeck, attorneys for appellant (Jay V. Surgent, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Skender Bruncaj appeals from his August 22, 2013, conviction, after a trial de novo before Judge Robert Gilson, of driving while under the influence of intoxicating liquors (DWI), N.J.S.A. 39:4-50. Defendant entered a conditional guilty plea after the court denied his motion to suppress the Alcotest results showing he had a blood alcohol level of .11.

In contesting the admissibility of Alcotest results, defendant renews arguments presented to the Law Division. He contends as follows

POINT I

THE DRIVING WHILE INTOXICATED (DWI) CONVICTION SHOULD BE REVERSED AND THE DWI SUMMONS DISMISSED DUE TO THE FAILURE OF THE STATE TO PROVIDE THE DATA DOWNLOADS AS REQUIRED UNDER STATE V. CHUN, 194 N.J. 54 (2008).

POINT II

THE DWI CONVICTION SHOULD BE REVERSED AND THE DWI SUMMONS DISMISSED SINCE THE ALCOTEST RESULTS SHOULD BE SUPPRESSED DUE TO THE FAILURE OF THE STATE TO PROVIDE COMPLETE REPAIR RECORDS (THE DIAGNOSTIC REPORTS FROM DRAEGER SAFETY DIAGNOSTICS, INC.)

POINT III

THE DWI CONVICTION SHOULD BE REVERSED AND THE DWI SUMMONS DISMISSED SINCE THE ALCOTEST RESULTS SHOULD BE SUPPRESSED AS THERE WERE MULTIPLE INSTANCES OF LESS THAN THE NECESSARY TWO MINUTE PURGE OF THE INFRARED CHAMBER.

We affirm, substantially for the reasons set forth in Judge Gilson's cogent written opinion. We add the following comments.

The Supreme Court held that the Alcotest, using New Jersey Firmware version 3.11, was generally scientifically reliable, subject to certain ordered modifications, and its results were admissible to prove a per se violation of N.J.S.A. 39:4-50. State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Defendant's expert argued that the reliability of the device used in defendant's case was questionable because the State failed to produce certain data downloads that are routinely erased, and certain repair records of the specific Alcotest device that were created by the device's manufacturer.

We recently concluded that the State had no duty under discovery rules to disclose such evidence, and defendant had no constitutional right to its disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because such evidence was neither relevant nor material. State v. Robertson, ___ N.J. Super. ___ (App. Div. 2014). Based on our reasoning in Robertson, defendant's arguments with respect to repair records and erased data downloads lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant also contends that the Alcotest results are questionable because two minutes did not elapse each time the device's test chamber, known as a cuvette, was purged regardless of whether the vapor came from the defendant's breath sample, or a control test solution. We disagree.

Some background is required. According to the testing procedures outlined in Chun, operators should wait twenty minutes to collect a sample to prevent the residual effects of mouth alcohol from causing overestimated readings. Id.at 79. Once the requisite waiting period has elapsed, the testing process can begin. Ibid. First, the device automatically samples room air to check for contaminants; this is commonly known as the blank air test. Chun, supra, 194 N.J.at 80. If the initial test is valid, the machine performs the control test, which measures a standard alcohol solution. Ibid. If that test is also valid, that is, if the device accurately analyzes the standard solution, a second blank air test is performed, after which the operator can obtain a breath sample from a defendant. Ibid. After the defendant provides a sample, the device performs a third blank air test to purge the defendant's sample from the device, and then locks out for a two-minute period. Id.at 81. After the two minutes have elapsed, a second breath sample is taken from the defendant. Id.at 81.

There is no question that more than two minutes elapsed between defendant's two breath tests utilized by the State. The first was collected at 4:47 a.m. and the second at 4:50 a.m. Defendant contends that a two-minute waiting period should apply not only to the interval between a defendant's two samples, but also between a control test and a sample. Chunimposes no such requirement. Apparently, that is because the two-minute lockout was primarily designed to assure that the defendant's mouth was sufficiently cleared of alcohol from his or her first breath sample, before the defendant provided another. SeeFindings and Conclusions of Remand Court, Special Master Report (SMR), February 13, 2007, at 87, reprinted at 2 007 N.J. Lexis 39, 100 (stating that the State Police forensic science director, Thomas "Brettell wanted the full two-minute lockout to ensure that all the breath was expelled from a subject's mouth before the second breath test was taken").

A defense expert who testified before the Special Master also apparently considered the two-minute lockout to be a means of addressing mouth alcohol, although he contended the two-minute period was too short. Id. at 220, 2 007 N.J. Lexis at 255 ("In Hlastala's opinion, the two-minute lockout between breath tests and the twenty-minute observation periods also did not provide complete safeguards against mouth alcohol.").

A State expert agreed that the two-minute lockout addressed potential mouth alcohol, but asserted that the two-minute interval was sufficient. Id. at 168, 2 007 N.J. Lexis at 195 ("Logan viewed New Jersey's two-minute lockout between duplicate tests . . . as [an] additional safeguard[] to ensure against mouth alcohol interference by allowing time for dissipation and monitoring of abnormal breath profiles.")1

In sum, we find no merit to defendant's challenge to the admissibility of the Alcotest results.

Affirmed.


1 We recognize that there is also evidence in the Special Master's report that the two-minute lockout was a means of clearing alcohol from the cuvette, but the focus was still on the clearing of mouth alcohol. Id. at 38, 2 007 N.J. Lexis at 43 ("New Jersey also intended for the Alcotest 7110 to institute a two-minute lockout between breath samples to prevent mouth alcohol inside the cuvette from contaminating the second sample.").