STATE OF NEW JERSEY v. ROBERT C. SAMUELS

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT C. SAMUELS,

Defendant-Appellant.

____________________________________

April 30, 2014

Submitted January 23, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-08-12.

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

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following trial de novo on the record of the Municipal Court of the Township of Washington, Gloucester County, the Law Division Judge found defendant Robert C. Samuels guilty of driving while intoxicated on the basis of the results of the Alcotest, N.J.S.A. 39:4-50, and sentenced him as a third-time offender to pay a $1007 fine, $33 in court costs, a $50 VCCB assessment, a $200 DWI surcharge, and a $75 SNSF assessment. In addition, the judge revoked defendant's driver's license for ten years, required him to serve 180 days in the county jail, ordered him to spend twelve hours at the Intoxicated Driver's Resource Center, and required him to install an ignition interlock device for a period of one year post restoration. Defendant appeals contending that the Alcotest was improperly administered. Because there is sufficient credible evidence in the record to support the Law Division's opposite conclusion, we affirm.

Defendant was stopped after making an illegal U-turn in a construction zone and almost striking a construction vehicle. After detecting the odor of alcohol emanating from defendant's car, the officer asked him to step out and perform sobriety tests. Defendant did not perform well on the first test, and the officer discontinued the effort after defendant became belligerent and refused to cooperate. Defendant was driven to the stationhouse for administration of the Alcotest.

A different officer sat across from defendant to review the questionnaire with him during the twenty minute observation period. At the end of that period, the officer saw defendant move his mouth and realized that he was chewing gum. She had defendant remove the gum and allowed him to use the facilities. Afterwards, defendant squirted a hand sanitizer into his palms and rubbed them together. The officer provided him a paper towel which he used to wipe his hands. The officer then began timing a new twenty-minute period.

The officer testified that because defendant had been belligerent to the arresting officer, she elected not to remove her radio while she processed him. Instead, she retained the radio for safety reasons and turned it off at the end of the second twenty-minute period before activating the machine.

Defendant presented two expert witnesses who critiqued the officer's administration of the Alcotest. One expert observed that hand sanitizers often contain alcohol, which he claimed could pose concerns for a breath test. He noted that defendant raised his hands to his mouth at least seven times after using the hand sanitizer. He also testified that the officer failed to maintain direct continuous observation of defendant for the full twenty minutes required and failed to observe the Chun1 protocol by retaining her radio in the testing area. The other expert testified that although the Supreme Court noted in Chun that the Alcotest is "well-shielded," that does not mean that it is impervious to RF (radio frequency) interference. He opined that police radios or cell phones in standby mode generate RF to which the Alcotest "is not necessarily impervious."

Judge Whitcraft, who observed the witnesses as they testified in municipal court and reviewed a video of the officer administering the Alcotest, found nothing in the record "to suggest that [the officer] was anything other than credible." The judge found that the officer was never "more than a couple of feet away" from defendant and could "see what he's doing at all times." He thus was satisfied "that there was a complete 20-minute observation as required."

The judge rejected defendant's argument that his use of the hand sanitizer may have tainted his breath sample. The judge found that the video established that defendant did not put his fingers in his mouth after sanitizing his hands and wiping them with a paper towel. Moreover, defendant made no effort to prove that there was actually any alcohol in the hand sanitizer in the station. Accordingly, the judge rejected the argument as based on nothing more than speculation.

The judge also rejected defendant's argument that the presence of the officer's radio invalidated the test. The judge noted that neither expert testified that the radio would emit RF if turned off. The only testimony offered was to the effect that a radio in standby mode might potentially interfere with the Alcotest device. Judge Whitcraft found that the testimony "wasn't that it was turned down; it was off. And, nobody testified that a radio that was turned off would have any [e]ffect on the Alcotest result."

Judge Marshall heard defendant's appeal in the Law Division. In a thorough and well-reasoned written opinion, the judge rejected defendant's arguments that the Alcotest was improperly administered, denied his motion to suppress the results, and found defendant guilty of driving while under the influence, imposing the same sentence as the municipal court.

The judge agreed with the municipal court that the video established that defendant was within the officer's line of sight for the entire twenty-minute period and that his use of the hand sanitizer could not affect the results of the test. Giving due regard to Judge Whitcraft's credibility findings, Judge Marshall found the officer credible and accepted her testimony that she turned her radio off before entering into the general vicinity of where the Alcotest was located. The judge found that the Chun Court determined, based on extensive findings of a Special Master, that the Alcotest is not vulnerable to such interference in any event. The judge also rejected defendant's argument that the functioning of the machine was not proven by clear and convincing evidence due to missing and compromised data and repair records.

Defendant's only contention on this appeal is that the Alcotest was improperly administered, requiring suppression of the results. Specifically, he renews his arguments that the officer did not continually observe him for twenty minutes before he provided breath samples, hand sanitizer that may have contained alcohol may have resulted in alcohol on his hands being transferred to his mouth, and the officer failed to remove her radio when she administered the test.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division not the municipal court. Id. at 162. As is the case in the Law Division, however, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71, 474 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Based upon our review of the record, we are satisfied that it amply supports the Law Division judge's findings and conclusion that the Alcotest was properly administered and defendant guilty of DWI beyond a reasonable doubt. In accord with the two-court rule, we find no basis to disturb the concurrent findings of the municipal court and the Law Division that the officer kept defendant under continuous observation for the full twenty-minute period, that defendant's use of a hand sanitizer before the start of the second twenty-minute period had no effect on the test results, and that the officer turned her police radio off before entering the testing area. Locurto, supra, 157 N.J. at 474. We further agree with Judge Marshall that defendant is not free to relitigate the legal and evidentiary issue resolved in Chun, that the Alcotest is well-shielded from RF interference. Chun, supra, 194 N.J. at 89; see also State v. Carrero, 428 N.J. Super. 495, 509-12 (App. Div. 2012) (declining defendant's request that we reconsider the Supreme Court's holding on the admissibility of Alcotest results based on the possibility of RFI interference).

Affirmed.

1 State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).