STATE OF NEW JERSEY v. MICHAEL J. MEYER

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NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3138-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL J. MEYER,

     Defendant-Appellant.
__________________________

                    Argued January 9, 2020 – Decided September 18, 2020

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Municipal Appeal No. 17-15.

                    John J. Novak argued the cause for appellant (John J.
                    Novak, PC, attorneys; John J. Novak and Deborah A.
                    Plaia, on the briefs).

                    Cheryl L. Hammel argued the cause for respondent
                    (Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney; Samuel Marzarella, Chief Appellate Attorney,
                    of counsel; Cheryl L. Hammel, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Defendant Michael J. Meyer appeals from the March 11, 2019 order of the

Law Division convicting him after a trial de novo of driving while intoxicated

(DWI),  N.J.S.A. 39:4-50. We affirm.

                                       I.

      The following facts are derived from the record. On June 13, 2016,

defendant was involved in a three-car accident in Lacey Township that resulted

in personal injuries. An officer took breath samples from defendant with an

Alcotest machine at the station. After the tests reported blood alcohol content

(BAC) readings above the legal limit, the officer charged defendant with DWI.1

      On June 20, 2017, defendant entered a conditional plea of guilty in the

municipal court to the DWI charge. Several stipulations were entered at the time

of the plea: (1) the operator of the Alcotest machine was qualified; (2) the

Alcotest machine was in proper working order; (3) the first ambient air sample

was taken at 06:42; (4) the second ambient air sample was taken at 06:43; (5)

defendant's first breath sample was taken at 06:44; (6) defendant's second breath

sample was taken at 06:46; and (7) the test results reported a . 21 BAC reading.



 1
  The officer also charged defendant with reckless driving,  N.J.S.A. 39:4-96.
That charge is not before the court.
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      Pursuant to the conditional plea, defendant preserved the argument that

the results of his Alcotest breath samples are inadmissible and, if so, his

conviction should be vacated. In State v. Chun,  194 N.J. 54 (2008), the Supreme

Court addressed the scientific reliability of the Alcotest and adopted standards

and procedures that must be followed by police before an Alcotest report is

admitted into evidence.     Relevant to defendant's reservation is the Court's

holding that at least two breath samples are necessary for the results to be valid.

Id. at 118, 151.

      A Special Master's Report on the reliability of Alcotest results, relied on

by the Court in Chun, discussed possible contamination from one sample to the

next whenever the second sample is taken too soon after the first. See Findings

and Conclusions of Remand Court, No. 58,879, 2 007 N.J. Lexis 39 at 43 (N.J.

Feb. 13, 2007). To allow evacuation of the first breath from the cuvette into

which it is collected, the Alcotest software locks the machine and "[a]fter a two-

minute lock-out period during which the device will not permit another test, the

instrument prompts the operator to . . . collect the second breath sample." Chun,

 194 N.J. at 81.

      Before the municipal court, defendant argued the stipulated facts create a

reasonable doubt that his breath samples were taken at least two minutes apart


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and raise the possibility that the second sample was contaminated by the

remnants of the first sample. In support of his argument, defendant offered an

expert report by a retired New Jersey State Trooper who previously headed the

State Police alcohol drug testing unit. The expert explained that the report

issued by the Alcotest recorded the hour and minutes, but not the seconds, of

each of defendant's breath samples. He opined that defendant's

              first breath test was conducted at 06:44D 2 and his
              second breath test was conducted at 06:46D. There
              appears to be a two[-]minute lock-out on the [Alcohol
              Influence Report] between breath samples. It is
              possible [defendant's] first breath test was completed at
              06:44:55D and his second breath test was started at
              06:46:15D. The times would raise reasonable doubt a
              two[-]minute lock-out was adhered to between breath
              samples. . . . The lack of a two[-]minute lock[-]out
              between breath tests would raise a question as to the
              reliability of [defendant's] breath tests results.

The State did not present a rebuttal expert report.

        The municipal court judge stated he was unaware of any precedent

supporting defendant's position. He accepted the guilty plea and sentenced

defendant to a seven-month loss of driving privileges, twelve hours in the

intoxicated driver's resource center, six months of ignition interlock, a $306 fine,

and financial penalties.


2
    The significance of "D" after the times is not explained in the report.
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      At the trial de novo in the Law Division, defendant again relied on the

expert's report to challenge admission of the Alcotest results. As he had done

in the municipal court, defendant argued there was a reasonable doubt that a full

two minutes transpired between the taking of defendant's breath samples

because the Alcotest report did not include seconds in the time notations for the

samples. In addition, defendant argued that the record indicates he blew breath

for the first sample for 12.8 seconds, which added to the doubt that a full two

minutes transpired before the next breath sample was taken.

      The trial court issued a written opinion rejecting defendant's argument.

The court relied almost exclusively on an unpublished opinion of this court,

State v. Mukherjee, No. A-3031-10 (App. Div. Jan. 9, 2012), in which we

rejected arguments similar to those raised by defendant. In doing so, the trial

court, in effect, adopted the testimony of a witness described in Mukherjee,

which contradicted the expert testimony offered by defendant. On March 11,

2019, the trial court entered an order upholding defendant's conviction.

      This appeal followed. Defendant makes the following arguments.

            POINT I

            THE COURT ERRED IN RELYING ON AN
            UNPUBLISHED      OPINION,        STATE      V.
            MUKHERJEE, 2012 N.J. SUPER. UNPUB. LEXIS 24
            (APP. DIV. OCTOBER 25 [SIC], 2012) IN DENYING

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          DEFENDANT'S APPEAL WHERE IT IS NOT
          CLEAR THAT TWO MINUTES HAD PASSED
          BETWEEN BREATH SAMPLES.

          POINT II

          THE COURT ERRED IN RELYING ON THE
          MUNICIPAL COURT TESTIMONY OF ONE
          TROOPER KREBS, A WITNESS IN AN
          UNRELATED MUNICIPAL COURT TRIAL WHOSE
          TESTIMONY   WAS     QUOTED     IN    THE
          UNPUBLISHED     OPINION,    STATE      V.
          MUKHERJEE; WHERE THE DEFENDANT IN
          MUKHERJEE    PRESENTED     NO     EXPERT
          TESTIMONY TO THE CONTRARY; AND WHERE
          DEFENDANT   IN    THE    SUBJECT    CASE
          PRESENTED EXPERT TESTIMONY REFUTING
          TROOPER KREBS' TESTIMONY.

          POINT III

          WHETHER THE BLOOD ALCOHOL RESULTS
          OBTAINED FROM CHEMICAL BREATH TESTING
          USING AN ALCOTEST 7110 MK III C
          INSTRUMENT ARE COMPLIANT WITH THE
          CONDITIONS FOR SCIENTIFIC RELIABILITY
          CITED IN STATE V. CHUN,  194 N.J. 54, 130 (2008)
          AND ADMISSIBLE AS EVIDENCE WHERE THERE
          IS REASONABLE DOUBT THAT TWO MINUTES
          HAD ELAPSED BETWEEN BREATH TESTS?

                                    II.

     On appeal from a municipal court to the Law Division, the review is de

novo on the record. R. 3:23-8(a)(2). The Law Division judge must make



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independent findings of fact and conclusions of law but defers to the municipal

court's credibility findings. State v. Robertson,  228 N.J. 138, 147 (2017).

      We do not, however, independently assess the evidence. State v. Locurto,

 157 N.J. 463, 471 (1999). Our "standard of review of a de novo verdict after a

municipal court trial is to determine whether the findings made could reasonably

have been reached on sufficient credible evidence present in the record,

considering the proofs as a whole." State v. Ebert,  377 N.J. Super. 1, 8 (App.

Div. 2005) (internal quotations marks and citation omitted). "[A]ppellate review

of the factual and credibility findings of the municipal court and the Law

Division 'is exceedingly narrow.'" State v. Reece,  222 N.J. 154, 167 (2015)

(quoting Locurto,  157 N.J. at 470). But, "[a] trial court's interpretation of the

law and the legal consequences that flow from established facts are not entitled

to any special deference." Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J.
 366, 378 (1995).

      We agree that it was error for the trial court to rely on our unpublished

opinion. According to Rule 1:36-3,

            [n]o unpublished opinion shall constitute precedent or
            be binding upon any court. Except for appellate
            opinions not approved for publication that have been
            reported in an authorized administrative law reporter,
            and except to the extent required by res judicata,
            collateral estoppel, the single controversy doctrine or

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             any other similar principle of law, no unpublished
             opinion shall be cited by any court.

The trial court "acknowledge[d] that Mukherjee has not been approved for

publication and is therefore not explicitly dispositive."           Despite that

acknowledgement, the trial court provided a detailed description of the

Mukherjee opinion and concluded that "the Chun-Mukherjee [sic] line of cases

governs the outcome in this matter." The court concluded its opinion by stating

that it "finds Mukherjee persuasive and relies upon it in making this decision."

This error, however, is not fatal to the trial court's decision.

      The heart of the trial court's holding is that, as noted in Mukherjee, the

Chun Court found the Alcotest results were reliable, not because a full two

minutes must transpire between breath samples, but because a second sample

cannot be taken until "[a]fter a two-minute lock-out period during which the

device will not permit another test . . . ."  194 N.J. at 81. The Special Master's

report on which the Court relied noted that the Alcotest machine did not always

strictly adhere to the two-minute lock-out period but that the timing error was

"very slight." 2 007 N.J. Lexis at 100.

      In light of this holding, the expert opinion proffered by defendant, even if

accepted as true, does not create reasonable doubt about the proper

administration of the Alcotest to defendant. The parties stipulated that the

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Alcotest machine was operating properly when defendant's breaths were taken.

There is no evidence in the record that the machine malfunctioned when it

allowed a second breath sample to be taken after a lock-out period. Under the

holding in Chun, it was not necessary for the lock-out period to have been a full

two minutes for the test results to be admissible. The predicate for admissibility

on this aspect of the Alcotest test procedure is that the machine's lock-out feature

functioned properly. Slight deviations to the two-minute period permitted by

the machine's software, such as through the rounding down of seconds, were not

found by the Court to undermine the reliability of the test results.

      To the extent we have not specifically addressed any of defendant's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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