STATE OF NEW JERSEY v. DYLAN OGDEN

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3660-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DYLAN OGDEN,

     Defendant-Appellant.
______________________________

              Argued August 14, 2018 – Decided           September 7, 2018

              Before Judges Sumners and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Municipal
              Appeal No. 17-004.

              Thomas M. Cannavo argued the cause for
              appellant (The Hernandez Law Firm, attorneys;
              Thomas M. Cannavo, of counsel and on the
              brief).

              Monica do Outeiro, Assistant Prosecutor,
              argued the cause for respondent (Christopher
              J. Gramiccioni, Monmouth County Prosecutor,
              attorney; Monica do Outeiro, of counsel and
              on the brief).

PER CURIAM
     Following a trial de novo in the Law Division, defendant

Dylan Ogden was convicted of driving while intoxicated (DWI) per

se,  N.J.S.A. 39:4-50, based upon the Alcotest results of 0.14

percent blood alcohol concentration (BAC).              On appeal, defendant

argues that the State's failure to move into evidence the Alcotest

operator card and coordinator certification card for the state

trooper who calibrated the Alcotest device constituted a failure

to prove that the Alcotest was in proper working order.             We affirm

because   we   conclude   that   the       admission    of   documents,     which

contained the trooper's certification regarding the calibration

of the Alcotest, satisfied the requirement of State v. Chun,  194 N.J. 54, 154 (2008), that "foundational documents" be admitted

into evidence to show the Alcotest was in proper working order.

     We set forth the limited facts presented at the two-witness

municipal court trial that are necessary to resolve this appeal.

On June 18, 2016, defendant was stopped by a Manasquan police

officer for driving with a taillight that was not illuminated.

The officer testified that upon speaking to defendant, he believed

defendant had been drinking due to the odor of alcohol emanating

from the vehicle and his observation that defendant's eyes were

"bloodshot and watery."      To confirm his suspicions, the officer

had defendant perform roadside sobriety tests, which were recorded

on a motor vehicle recording device (MVR).             The officer determined

                                       2                                  A-3660-16T2
that defendant failed the test and arrested him for DWI.                  At the

police station, the officer administered the Alcotest, resulting

in a BAC of 0.14 percent. Defendant was charged with DWI, reckless

driving,  N.J.S.A. 39:4-96, and failure to maintain lamps,  N.J.S.A.

39:3-66.       Defendant's expert, a retired state trooper, testified

that, based upon his observation of the MVR, defendant did not

operate his vehicle while intoxicated, and that the officer's

operation of the Alcotest was inconsistent with Chun.

       Following the trial, the municipal court issued a reserved

oral decision finding defendant guilty per se of DWI based upon

the BAC results, guilty of failure to maintain lamps, but not

guilty    of    reckless   driving.       The   court   rejected    defendant's

argument that the State's decision not to admit into evidence

State Trooper David W. Klimak's Alcotest operator card and the

coordinator card – which were provided in discovery – prevented

it from adducing the "foundational documents" required by Chun,

 194 N.J. at 154, to sustain a per se DWI violation, and thereby

found    the    BAC   results   admissible.      The    court   held    that   the

foundational      documents       required    were   satisfied     by   Klimak's

signatures below the certifications at the bottom of the Alcotest

7110     Calibration     Record     and   the   Alcotest   7110     Calibration




                                          3                              A-3660-16T2
Certificate Part I Control Tests (collectively, the calibration

documents).      Klimak's certifications on April 22, 2016 provided:1

              Pursuant to law, and the "Chemical Breath
              Testing Regulations" N.J.A.C. 13:51, I am a
              duly        appointed       Breath        Test
              Coordinator/Instructor.    In   my    official
              capacity, and consistent with "Calibration
              Check Procedure for Alcotest 7110," as
              established by the Chief Forensic Scientist
              of the Division of State Police, I perform
              calibration checks on approved instruments
              employing      infrared      analysis      and
              electrochemical analysis, when utilized in a
              single approved instrument as a dual system
              of chemical breath testing. Pursuant to, and
              consistent with, the current "Calibration
              Check Procedure for Alcotest 7110," as
              established by the Chief Forensic Scientist,
              I performed a Calibration Check on the
              approved   instrument   identified   on   this
              certificate. The results of my Calibration
              Check are recorded on this certificate, which
              consists of two parts on two pages: Part I -
              Control Tests; and Part II - Linearity Tests.
              I certify that the foregoing statements made
              by me are true. I am aware that if any of the
              foregoing statements made by me are willfully
              false, I am subject to punishment.

The   court    further   found   that   the   officer,   who   operated   the

Alcotest, did so in conformance with Chun's requirements.                 The

court, however, did not make a ruling whether the State proved

defendant was guilty based on the officer's observations.




1
    The calibration documents depicted the seal of the New Jersey
State Police printed under or over the text of the certifications.


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      On trial de novo appeal to the Law Division, defendant renewed

his   contention   that    the    foundational    documents       to    admit   the

Alcotest results were not satisfied.2 In a thorough oral decision,

Judge   Leslie-Ann   M.     Justus    found    that,    based    upon    her    own

independent assessment of the record, there was insufficient proof

that defendant was guilty of DWI based upon observation, but that

he was guilty per se of DWI due to his 0.14 percent BAC.                        The

judge stated she was bound by the evidentiary record from the

municipal court in accordance with State v. Thomas,  372 N.J. Super.
 29, 31 (Law. Div. 2002), but recognized under State v. Kashi,  180 N.J. 45, 48 (2004), that she could make her own "assessment of the

sufficiency of the evidence contained within the record."                       The

judge found that the admitted calibration documents with the

trooper's   certification        established     his    "requisite       ability,

qualifications     and    authority    to     operate    and     calibrate      the

Alcotest" such that it was not necessary for the State to admit

into evidence his credentials – the Alcotest operator card and

coordinator certification card.             Thus, Judge Justus ruled that

Chun's documentation requirements were satisfied.                 Moreover, the

judge   determined       that    defendant's     reliance       upon    State    v.


2
   The municipal court also denied defendant's pretrial motion to
suppress the Alcotest results, and defendant agreed to incorporate
the testimony from the suppression hearing into the trial.
Defendant did not challenge the denial of the suppression motion.

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Kuropchak,  221 N.J. 368, 384-85 (2015), was misplaced because

there the Court found that the State's evidence of the wrong

certificate for the semi-annual calibration, instead of the recent

Calibrating Unit New Standards Solution Report, was contrary to

Chun; thereby making the Alcotest results inadmissible and the

finding that the defendant was guilty per se of DWI invalid.                She

further found as not credible the testimony of defendant's expert

that the officer's operation of the Alcotest was inconsistent with

Chun.

     Before us, defendant again argues that the State did not have

the necessary foundational documents under Chun to admit the

Alcotest   results     into   evidence     to   sustain   his   per   se    DWI

conviction.3      He contends that, without the testimony of the

trooper coordinator or a letter from the Attorney General as to

the qualifications of the coordinator, the Alcotest Coordinator

Instructor     card   or   replica   certificate   must   be    entered    into

evidence to presumptively satisfy Chun's credentials requirement.

     In reviewing a trial court's decision on a municipal appeal,

we determine whether sufficient credible evidence in the record

supports the Law Division's decision.           State v. Johnson,  42 N.J.
 146, 162 (1964).      Unlike the Law Division, which conducts a trial


3
   Defendant takes no issue with Judge Justus' ruling that the
officer operated the Alcotest in accordance with Chun.

                                       6                              A-3660-16T2
de novo on the record, Rule 3:23-8(a), we do not independently

assess the evidence.      State v. Locurto,  157 N.J. 463, 471 (1999).

In addition, under the two-court rule, only "a very obvious and

exceptional showing of error" will support setting aside the Law

Division and municipal court's "concurrent findings of facts."

Id. at 474.      However, we exercise plenary review of the trial

court's legal conclusions that flow from established facts.            State

v. Handy,  206 N.J. 39, 45 (2011).

       The results from Alcotests have been deemed scientifically

reliable.      Chun,  194 N.J. at 66.      Furthermore, Alcotest results

are admissible to prove a per se violation of DWI.            Ibid.       In

Chun,    the    Court   held   that   a   condition   precedent   to     the

admissibility of Alcotest results is proof that (1) the Alcotest

was in working order and inspected prior to the procedure in

question, (2) the operator was certified, and (3) the operator

administered the test according to official procedure.            Id. at

134.    The first Chun factor requires the State to produce and

admit three foundational documents:

            (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


                                      7                           A-3660-16T2
             (3) the Certificate of Analysis of the 0.10
             Simulator Solution used in a defendant's
             control tests.

             [Id. at 154.]

The Court has also directed the State to disclose in discovery

twelve other foundational documents.          Id. at 153.

      There is no dispute that the State produced in discovery the

core foundational documents required under Chun, ibid., to show

that the Alcotest used for defendant's breathalyzer samples was

in working order and inspected prior to defendant's test.                       We

agree with Judge Justus' reasoning that the calibration documents

were sufficient proof that Klimak had the ability, qualifications,

and authority to operate and calibrate the Alcotest.                    Klimak's

certifications in the calibration documents provide the foundation

required for admission of the calibration documents as business

records pursuant to N.J.R.E. 803(c)(6). They establish that Klimak

tested the device and reported the results on April 22, 2016, in

the regular course of his duties as a duly authorized Alcotest

coordinator and based on what he did and observed.               And, in Chun,

 194 N.J.   at   142,   the   Court   plainly   stated   that    all    of   the

"foundational     documents"     it    recognized   "qualify     as     business

records."      Accordingly, we discern no error in Judge Justus'

decision finding defendant guilty per se of DWI.

        Affirmed.

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