NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3976-17T4
STATE OF NEW JERSEY,
Argued March 27, 2019 – Decided June 12, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 17-04.
John Menzel argued the cause for appellant.
Roberta Di Biase, Supervising Assistant Prosecutor,
argued the cause for respondent (Bradley D. Billhimer,
Ocean County Prosecutor, attorney; Samuel J.
Marzarella, Deputy Executive Assistant Prosecutor, of
counsel; Roberta Di Biase, on the brief).
Defendant Vincent DiArchangel appeals from a March 27, 2018 Law
Division decision convicting him of driving while intoxicated (DWI), N.J.S.A.
39:4-50, after a trial de novo. See R. 3:23-8(a)(2). We affirm.
Defendant initially entered a conditional guilty plea to DWI, reserving his
right to appeal the municipal court judge's admission into evidence of the
alcohol influence report and accompanying worksheet, finding his blood alcohol
content (BAC) was 0.15 percent. The municipal court judge admitted the report
after testimony from the New Jersey State Trooper who administered the
breathalyzer test on the night of the stop. Defendant contested the admission of
the report, contending the State did not adequately authenticate "core
foundational documents." The municipal court found that the State established
the requisite twenty-minute observational period before the test was
administered, a finding defendant also challenged on appeal. See State v. Chun,
194 N.J. 54, 79 (2008).
This was defendant's third DWI conviction—which was treated as a
second, resulting in the imposition of a two-year loss of license, installation of
an alcohol ignition interlock device thereafter, forty-eight hours in the
Intoxicated Drivers Resource Center (IDRC) in lieu of jail time, plus thirty days
of community service along with appropriate fines and penalties. The
prosecutor dismissed charges of speeding and reckless driving. Defendant's
sentence was stayed by consent pending appeal to the Law Division, and then
stayed again at the Law Division level by the trial judge.
The facts underlying the DWI conviction are as follows. Defendant was
observed on February 20, 2016, operating a motor vehicle at speeds in excess of
ninety miles per hour on the Garden State Parkway. When stopped, the trooper
immediately suspected that defendant was under the influence, and performed
sobriety field tests. Defendant smelled of alcohol, his eyes were bloodshot and
watery, his speech slurred, his gait slow and fumbling, and he swayed with knees
After defendant's unsuccessful attempts at the completion of those tests,
the trooper drove him to the Galloway State Police barracks, where the state
police breathalyzer machine was not operating. At 12:39 a.m., the trooper and
defendant proceeded the three miles from the troop station to the Galloway
Township Municipal Police Department. They arrived at 12:43 a.m., the time a
dispatcher at 12:55 a.m. logged in as a "delayed note" on the computer aided
dispatch (CAD) report. The dispatcher noted the arrival time in non-military
The trooper placed his phone, weapon, and other electronic devices in a
gun locker, and entered the room in which breathalyzer tests were administered.
At 1:09 a.m., he performed the first calibrated or control test. At 1:11 a.m.,
defendant breathed into the alcotest machine. On a signal from the machine,
defendant blew into it a second time. The result of defendant's breathalyzer was
a BAC of 0.15 percent.
Defendant raises the following points on appeal:
I. Because the State Failed to Establish that
Defendant Was Observed Continuously for [Twenty]
Minutes Before He Submitted Breath Samples, This
Court Should Exclude the Breath Test Result and
Remand This Case for Trial.
II. Because the State Failed to Authenticate Certain
Core Foundational Documents Necessary for
Admission of the Breath Test Result, This Court Should
Exclude These Documents and the Breath Test Result
and Remand This Case for Trial.
When a municipal court decision is appealed, the court "conduct[s] a trial
de novo on the record below." R. 3:23-8(a)(2). The Law Division judge makes
his or her "own findings of fact and conclusions of law [while] defer[ring] to the
municipal court's credibility findings." State v. Robertson, 228 N.J. 138, 147
On an appeal to our court, we review the record to determine whether there
is "sufficient credible evidence present in the record." State v. Johnson, 42 N.J.
146, 162 (1964). We "should not undertake to alter concurrent findings of facts
and credibility determinations made by two lower courts absent a very obvious
and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999)
(citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). Once satisfied with
the findings and outcome, our "task is complete and [we] should not disturb the
result." Reversal is justified only if the courts' decisions are clearly mistaken
"and so plainly unwarranted that the interests of justice demand intervention and
correction[.]" Johnson, 42 N.J. at 162.
If a driver is convicted of DWI, he or she "must satisfy an onerous
standard to obtain a stay of a license suspension by the Law Division."
Robertson, 228 N.J. at 153. Such a showing includes demonstrating that there
is a substantial question which warrants a stay, that the safety of the community
will not be threatened or jeopardized by the license suspension stay, and that
defendant will not flee, although the latter consideration is rarely present. Id. at
The Law Division judge made substantial findings of fact regarding the
claimed failure to adhere to the Chun twenty-minute observation period. See
194 N.J. at 79. The judge said that the State's proofs established on the record,
as found by the municipal court judge, that the officer did honor the appropriate
twenty-minute observation period as the notation on the CAD clearly indicated
it was a "delayed entry." Thus, in the opinion of the Law Division judge, the
proofs established compliance with the twenty-minute observational period. We
see nothing in the record that would cause us to question the concurrent findings
of fact and credibility determinations on this subject made by the municipal
court judge and the Law Division judge. Locurto, 157 N.J. at 474. We will
neither disturb the result nor discuss the issue further. The courts' decisions
were not clearly mistaken and the interests of justice do not warrant our
Defendant's next basis for appeal also warrants only brief discussion.
Defendant's contention that the foundational documents for admission of the
breathalyzer test were not adequately authenticated has no merit. The municipal
court judge concluded that the state trooper's inability to identify the individuals
who had signed the calibration report and the new standard solution report was
inconsequential. He considered all the foundational documents to have been
adequately authenticated, including the operator's qualification card, the most
recent calibration report, the most recent standard solution change report, the
certificate of analysis, the control test, the alcohol influence report, and the
worksheet. The municipal court judge therefore found that the device was in
proper working order, had been inspected pursuant to protocol, the trooper was
certified to administer the test, and the test was administered in accord with
official procedures. The Law Division judge reached the same conclusions on
trial de novo.
After reviewing the municipal court record, the Law Division judge found
that the standard for admission is "not very high, it's really that the document
purports . . . to be [that] which . . . the proponent says that it is." As a result, he
too found the documents to be admissible.
In Chun, the Court observed because the breathalyzer machine "is not
'operator-dependent,' . . . the record demonstrates that the operator will play a
relatively lesser role here than has been the case in the past." Chun, 194 N.J. at
140. The Chun Court noted the enumerated documents supporting the test,
which include those defendant now challenges on appeal, are merely business
records ordinarily considered reliable. Id. at 142-45. Given the nature of these
documents, that the trooper who administered the breathalyzer test could not
identify signatures, or was unfamiliar with the processes which resulted in a
particular document, were not relevant to the admission of the results. As the
Chun Court found, the breathalyzer machine was one "not subject to influences
from the operator" and therefore, the results require less than was previously the
case. Id. at 140. We see no reason to alter the concurrent findings of fact on
this issue either. Nothing in the record suggests the alcotest results were not
reliable, or the machine was not functioning properly. We do not find the court's
decisions to be clearly mistaken or to demand our intervention and correction.
No error has been demonstrated. Locurto, 157 N.J. at 474.
Finally, we note that despite the fact this defendant had been previously
convicted of driving while intoxicated on two other occasions, and that on this
occasion his blood alcohol was .15, the Law Division judge granted a stay of the
license suspension without a showing pursuant to Robertson, and essentially
upon the consent by the State of the issuance of the stay. The stay in the
municipal court was by actual consent of the prosecutor. We remind the court
and counsel to consider the Supreme Court's exhortation in Robertson. A
showing of a substantial question, and safety to the community, should at least
be considered before such stays are granted.
Affirmed. The stay of license suspension is vacated.