STATE OF NEW JERSEY v. FRANK SPIRRA

NOT FOR PUBLICATION WITHOUT THE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.

FRANK SPIRRA,

Defendant-Appellant.

_________________________________

May 21, 2014

Argued January 29, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Municipal AppealNo. 2012-24.

Jay J. Ziznewski argued the cause for appellant (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Ziznewski and Christine D. Petruzzell, of counsel and on the briefs; Corrine L. McCann, on the briefs).

Michael J. Mennuti, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Mennuti, of counsel and on the brief).

PER CURIAM

Following a trial in the municipal court and trial de novo on the municipal court record in the Law Division, defendant Frank Spirra was convicted of driving while intoxicated, N.J.S.A. 39:4-50, and sentenced as a third-time offender to pay a $506 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 six months in the county jail, ninety of which could be served in an in-patient program, ordered him to spend forty-eight hours at the Intoxicated Driver's Resource Center, and required him to install an ignition interlock device for a period of two years post restoration. He appeals.

At the time of his arrest for drunk driving, defendant had an operating ignition interlock device installed in his car. Although his blood alcohol content was .15 according to the Alcotest, his ignition interlock device detected no presence of alcohol on his breath in a "rolling retest" minutes before he was stopped by the trooper. Defendant testified in his own behalf and called a representative of the manufacturer of the interlock device to testify regarding the reliability and general acceptance of the device installed in his car. In addition, defendant's expert on the Alcotest and breath testing, although not qualified to testify as an expert with regard to ignition interlock devices, was allowed to opine on the scientific reliability of the device.

Having heard that testimony, as well as the testimony of the arresting trooper, both Judge Stahl in the municipal court and Judge Fleming in the Law Division found defendant guilty beyond a reasonable doubt based upon the results of the Alcotest and the observations of the trooper.

Defendant raises the following issues for our consideration:

POINT I

BASED ON THE TESTIMONY OF THE ARRESTING OFFICER, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE FRUITS OF THE MOTOR VEHICLE STOP BECAUSE THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE TO ESTABLISH THAT THE OFFICER HAD AN OBJECTIVELY REASONABLE AND ARTICULABLE SUSPICION TO STOP DEFENDANT'S MOTOR VEHICLE.

POINT II

DEFENDANT DEMONSTRATED THAT THE IGNITION INTERLOCK DEVICE IS RELIABLE THROUGH EVIDENCE THAT THE FUEL CELL TECHNOLOGY USED BY IGNITION INTERLOCK DEVICES IS THE SAME AS THAT USED BY THE ALCOTEST AND IS A TECHNOLOGY THAT IS GENERALLY ACCEPTED BY THE RELEVANT SCIENTIFIC COMMUNITY; THAT IS RELIABLE BASED UPON PRINCIPLES OF JUDICIAL NOTICE; AND THAT THE EXPERTS DEFENDANT PROVIDED WERE QUALIFIED TO PROVIDE THESE OPINIONS.

A. The Trial Court Applied The Incorrect

Standard of Law And Erroneously Held

That The Ignition Interlock Device Is

Not Reliable Based On The Possibility

That It Can Be Circumvented.

1. Trial Court's Decision.

2. Defendant's Evidence.

3. The Trial Court Erred In

Requiring That The Device Be

Infallible, And Failed To

Examine Whether The Technology

Was "Generally Accepted" In

The Relevant Scientific Community.

B. The Trial Court Erred In Refusing To

Take Judicial Notice Of New Jersey

Statutes, And Thus, Also Erred In

Refusing To Estop The State From

Taking A Contrary Position To Its

Previously Stated Position In Regard

[To] The Reliability Of Smart Start's

Ignition Interlock Device.

C. The Trial Court Erred in Excluding

Expert Testimony . . . In The Area

Of Smart Start Interlock Devices.

POINT III

THE TRIAL COURT ERRED IN FINDNG DEFENDANT GUILTY BECAUSE HE SUPPLIED EVIDENCE SUFFICIENT TO DETERMINE THAT THERE WAS REASONABLE DOUBT AS TO HIS GUILT.

A. A Defendant Has An Absolute Right

To Introduce Evidence To Raise A

Reasonable Doubt Concerning The

Accuracy Of An Alcotest Reading.

B. The State Failed To Meet Its Burden

Of Proof That The Alcotest Was

Properly Administered.

C. The Trial Court Erroneously Failed

To Draw An Adverse Inference Against

The State As A Result Of The Trooper's

Failure To Video Record The Stop Of

Defendant's Vehicle And The Activities

During The Stop.

D. The Sobriety Field Tests Were

Improperly Administered And

Therefore A Conviction Cannot

Stand On This Observational Evidence.

Having carefully reviewed the record, the applicable law, and having heard the arguments of counsel, we affirm defendant's conviction substantially for the reasons expressed by Judge Fleming in his written opinion of January 16, 2013. We have nothing to add to his thorough and thoughtful analysis of the issues.

Affirmed.