State of New Jersey v. Gale Sorensen

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3797-13T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 27, 2015
v. APPELLATE DIVISION
GALE SORENSEN,
Defendant-Respondent.
________________________________
Argued December 15, 2014 – Decided February 27, 2015
Before Judges Sabatino, Simonelli and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Municipal Appeal No. 12-098-W.
Paula Jordao, Assistant Prosecutor, argued
the cause for appellant (Fredric M. Knapp,
Morris County Prosecutor, attorney; Ms.
Jordao, on the briefs).
Greggory M. Marootian argued the cause for
respondent.
The opinion of the court was delivered by
LEONE, J.A.D.
In the Municipal Court, defendant Gale Sorensen entered a
conditional plea of guilty to driving while intoxicated (DWI)
with a blood alcohol content (BAC) of 0.12%. N.J.S.A. 39:4-
50(a)(1)(ii). She appealed, and the Law Division suppressed the
Alcohol Influence Report (AIR) because the Alcotest operator did
not provide a copy of the AIR to defendant at the police
station, as mentioned in State v. Chun, 194 N.J. 54, cert.
denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).
The State appeals. We reject defendant's argument that the
State's appeal is barred by double jeopardy. We reverse the Law
Division's suppression order and remand to the Municipal Court.
I.
New Jersey's statute barring driving while intoxicated
penalizes "operat[ing] a motor vehicle while under the influence
of intoxicating liquor," which is usually proven by observation
of the person driving (an observation violation), and operating
a motor vehicle with a BAC of 0.08% or more (a per se
violation). N.J.S.A. 39:4-50(a). For a first-offense
observation violation, a person is subject to a fine of $250 to
$400, detainment for twelve to forty-eight hours in an
Intoxicated Driver Resource Center (IDRC) program, a term of
imprisonment of not more than thirty days, and a license
suspension of three months. N.J.S.A. 39:4-50(a)(1)(i). A first
offender who "operates a motor vehicle with a blood alcohol
concentration of 0.08% [and less than 0.10%] by weight of
alcohol in the defendant's blood" is subject to the same
penalties. N.J.S.A. 39:4-50(a), (a)(1)(i). However, "if the
2 A-3797-13T4
person's blood alcohol concentration is 0.10% or higher," a
first offender is also subject to a fine of $300 to $500 and a
license suspension of seven to twelve months. N.J.S.A. 39:4-
50(a)(1)(ii).
The Legislature has provided that if a person who operated
a motor vehicle gives a breath sample, "[a] record of the taking
of any such sample, disclosing the date and time thereof, as
well as the result of any chemical test, shall be made and a
copy thereof, upon his request, shall be furnished or made
available to the person so tested." N.J.S.A. 39:4-50.2(b).
"The police officer shall inform the person tested of" the right
to receive a copy on request, as well as the right "to have such
samples taken and chemical tests of his breath, urine or blood
made by a person or physician of his own selection." N.J.S.A.
39:4-50.2(c), (d).
The Legislature also provided that "[a] standard statement
. . . shall be read by the police officer to the person under
arrest." N.J.S.A. 39:4-50.2(e). The Standard Statement for
Motor Vehicle Operators (Standard Statement) advises:
3. A record of the taking of the breath
samples, including the test results, will be
made. Upon your request, a copy of that
record will be made available to you.
4. After you have provided samples of your
breath for testing, you have the right, at
your own expense, to have a person or
3 A-3797-13T4
physician of your own selection take
independent samples of your breath, blood or
urine for independent testing.
[New Jersey Attorney General’s Standard
Statement For Motor Vehicle Operators
(N.J.S.A. 39:4-50.2(e)) (revised & eff. July
1, 2012), available at http://www.njsp.org/
divorg/invest/pdf/adtu/070912_dwi_standardst
atement.pdf (hereinafter Standard
1
Statement).]
In Chun, our Supreme Court found the Alcotest was a
scientifically reliable breath test, and held its results could
be admissible to prove a per se violation of the DWI statute.
Chun, supra, 194 N.J. at 65. The Court said the Alcotest
"operator must retain a copy of the AIR and give a copy to the
arrestee." Id. at 82.
II.
On February 5, 2013, Patrol Officer Christopher Nelson
observed defendant's vehicle "jump[]" into the left lane of
Route 23, drift into the center and right lanes, and then drift
back to the left lane, all without using a turn signal. When
the officer turned on his emergency lights, defendant almost
caused an accident trying to get to the shoulder. Her eyes were
1
The 2012 version is slightly reworded from the 2004 version,
which identically stated: "Upon your request, a copy of that
record will be made available to you." New Jersey Motor Vehicle
Commission Standard Statement For Operators Of A Motor Vehicle -
N.J.S.A. 39:4-50.2(e) (revised & eff. Apr. 26, 2004), available
at http://www.state.nj.us/oag/dcj/agguide/dmvrefnew.pdf.
4 A-3797-13T4
bloodshot and watery, her eyelids were droopy, and her vehicle
smelled of alcohol. After she failed several psycho-physical
sobriety tests, she was arrested for DWI. Patrol Officer
William Juliano transported defendant to the police station for
an Alcotest.
At the station, Officer Nelson read defendant the Standard
Statement. Officer Juliano served as the Alcotest operator.
While he observed defendant, she burped. After restarting the
twenty-minute observation period, he conducted the test. The
Alcotest equipment printed the AIR, which showed defendant's BAC
was 0.12%. At the bottom of the AIR "Copy Given to Subject" was
preprinted. The officer made a copy of the AIR and gave it to a
superior officer, but did not give a copy to defendant.
Officer Juliano advised Officer Nelson of the test results.
Officer Nelson then issued defendant summonses for "Driving
While Intoxicated, [N.J.S.A.] 39:4-50," unsafe lane change,
N.J.S.A. 39:4-88(b), and careless driving, N.J.S.A. 39:4-97.
Defendant appeared before the Municipal Court. At the
beginning of the hearing, defense counsel announced that
defendant was "conceding that the observations, the driving, the
psycho-physical tests, [and] the other indicia are sufficient
under the [DWI] statute to establish [she was] under the
influence." Both sides agreed the issue was "a 90 day or a
5 A-3797-13T4
seven month suspension," that is, whether defendant was guilty
only of an observation violation, or also a per se violation.
The parties agreed to hold a pre-trial hearing under N.J.R.E.
104 to determine the admissibility of the Alcotest BAC results.
In the "104 hearing," Officer Nelson and Officer Juliano
testified about the Alcotest, and were found credible by the
court.
In the 104 hearing, defense counsel argued that the
Alcotest results must be suppressed because Chun required that
Officer Juliano provide the AIR to defendant in the station, and
that defendant did not have to show any prejudice from his
failure to do so. The prosecutor doubted whether any police
department in the State gave a copy of the AIR to the arrestee.
The Municipal Court was concerned that a copy of the AIR
was not given to defendant, as preprinted on the form, and urged
the State to either give a copy of the AIR to arrestees, or
change the form. However, the court ruled that failure to give
defendant a copy of the AIR was not sufficient to suppress the
BAC results. The court rejected defendant's other suppression
arguments, including that defendant's burp compromised the test.
The court admitted the AIR and the Alcotest results into
evidence.
6 A-3797-13T4
Defense counsel said defendant wanted to enter "a
conditional guilty plea, in other words, conceding the
observations as we discussed earlier." The Municipal Court made
clear to defendant that the conditional plea would allow her to
appeal the "decision concerning the 104 hearing and the []
admission of the Alcotest readings," but would not affect her
"guilty plea as to the 90 day loss of license based on the
observations." Defendant indicated she understood.
In her guilty plea colloquy, defendant admitted to driving
"under the influence of alcohol" because she had "[o]ne glass of
wine." The Municipal Court asked for more facts, and Officer
Nelson gave the observation testimony above. The court found a
factual basis for the guilty plea "based upon the statements of
the defendant, as well as the officer in regard to
observations." Under the plea bargain, the court dismissed the
charges of careless driving and unsafe lane change.
The Municipal Court sentenced defendant to a fine of $306
and a license suspension of seven months based upon "the reading
of .12 percent." The court also sentenced her to twelve hours
detainment in the IDRC program, a $200 Drunk Driving Fund
assessment, and various fees, surcharges, and court costs. On
the ticket, the court noted ".12" and a "conditional plea." The
court stayed the sentence pending appeal.
7 A-3797-13T4
Defendant appealed to the Law Division, where defense
counsel argued that the Alcotest results had to be suppressed
because of the burp and the failure to provide defendant a copy
of the AIR at the police station. The prosecutor argued that
the officer's reading of the Standard Statement informed
defendant of her right to get a copy of the AIR, that Chun did
not require the immediate presentation of the AIR, and that
defendant was not prejudiced because she requested the AIR at
the beginning of the legal proceedings and received it in a
timely fashion.
The Law Division judge rejected defendant's argument about
the burp. The court credited that Officer Nelson read defendant
the Standard Statement, and that defendant was informed of her
rights. However, the court ruled "defendant's motion to
suppress is granted on the grounds that the State failed to
provide a copy of the AIR at the time of the defendant's arrest
as required by Chun."
The Law Division judge then stated "as I understand it
there's no contest as to the observational standard." When
defense counsel agreed, the court immediately proceeded to
sentencing. The court stated that defendant had been "convicted
under the observational standard," and imposed the required $250
fine and license suspension of three months. The court also
8 A-3797-13T4
imposed a $6 assessment, a $100 Drunk Driving Fund assessment,
and the same IDRC detainment, fees, surcharges, and court costs
imposed by the Municipal Court. The Law Division's March 10,
2014 order stated "that Defendant's Motion to Suppress the
Alcotest Results is GRANTED," and that defendant was guilty of
DWI "under the observational standard."
This court granted the State's unopposed motion for leave
to appeal. Meanwhile, defendant served the three-month license
suspension, and then her driving privileges were restored.
III.
We first address defendant's claim that the State's appeal
is barred by double jeopardy. Defendant's argument is contrary
to proper appellate procedure and double jeopardy law.
The Supreme Court addressed the proper appellate procedure
in State v. Greeley, 178 N.J. 38 (2003). There, "[w]ith the
prosecution's consent, defendant entered a conditional guilty
plea [in Municipal Court], expressly preserving his right to
challenge the denial of his motion to suppress the breathalyzer
readings." Id. at 50. The Court held this was "the proper
procedure" to preserve such an issue for appeal. Id. at 50-51.
It allows a defendant to appeal the denial of the motion to the
Law Division de novo, to this court, and to the Supreme Court.
See id. at 42. If one of those courts grants defendant's
9 A-3797-13T4
appeal, the State may appeal to a higher appellate court, which
may reverse the suppression of the BAC results "and reinstate
defendant's conviction." Id. at 40, 42.
Here, defendant admittedly entered not only a conditional
plea to the per se violation, but also an unconditional guilty
plea to the observation violation. Thus, when she appealed and
the Law Division suppressed the BAC results, defendant's
unconditional guilty plea to the observation violation was
unaffected. The Law Division proceeded to sentence defendant on
her observation violation, imposing the three-month license
suspension required by N.J.S.A. 39:4-50(a)(1)(i). Nonetheless,
under proper appellate procedure, the State retained the right
to appeal the Law Division's suppression of the BAC results and
to seek reinstatement of the Municipal Court's sentence for the
per se violation.2
2
Defendant, citing State v. Giordano, 281 N.J. Super. 150 (App.
Div. 1995), notes that her motion to suppress the BAC results
was not a motion to suppress physical evidence unlawfully
obtained. That distinction required defendant to make her plea
conditional to preserve an appeal. Greeley, supra, 178 N.J. at
50-51; see R. 7:6-2(c) (allowing conditional pleas); Pressler &
Verniero, Current N.J. Court Rules, comment 2.4 on R. 7:6-2(c)
(2015) (the adoption of Rule 7:6-2(c) "effectively overrules"
Giordano). However, that distinction does not deprive the State
of its right to appeal, as the State can appeal an interlocutory
order excluding evidence before trial. R. 2:3-1(b)(5); State v.
Ruffin, 371 N.J. Super. 371, 389 (App. Div. 2004).
10 A-3797-13T4
Nevertheless, defendant contends that the State's appeal
violates the constitutional prohibitions of double jeopardy.
U.S. Const. amend. V, XIV; N.J. Const. art. I, ¶ 11; see State
v. Widmaier, 157 N.J. 475, 489-96 (1999). She asserts the Law
Division acquitted her of a per se violation. However, that
court never purported to acquit defendant. Rather, the court
simply reversed the denial of the motion to suppress the BAC
results, and then sentenced defendant based on her unconditional
plea to the observation violation.
Defendant argues that the Law Division's ruling was an
acquittal regardless of its label. "Under both the state and
federal double jeopardy clauses, an appeal from an acquittal is
impermissible if 'the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all
of the factual elements of the offense charged.'" Widmaier,
supra, 157 N.J. at 490 (quoting United States v. Martin Linen
Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L.
Ed. 2d 642, 651 (1977)). However, the Law Division did not find
defendant had a BAC of less than 0.10%, or otherwise resolve any
of the factual elements of the per se violation. Instead, the
court only ruled her 0.12% BAC result had to be suppressed
because the operator did not give her a copy of the AIR in the
police station.
11 A-3797-13T4
In these circumstances, even if the Law Division had said
defendant was "acquitted" or "not guilty," it would not have
affected the State's ability to appeal. In State v. Sohl, 363
N.J. Super. 573, 574 (App. Div. 2003), the defendant entered a
conditional plea to a per se violation in Municipal Court, and
appealed to the Law Division. The Law Division suppressed the
BAC results, "'reversed' the conviction of the municipal court
and entered a judgment of 'not guilty.'" Id. at 575. The State
appealed.
We ruled that, "[a]s defendant entered a conditional guilty
plea in municipal court, the Law Division judge should not have
entered a judgment of acquittal." Id. at 580-81 (citing State
v. Golotta, 354 N.J. Super. 477, 483 (App. Div. 2002), rev'd on
other grounds, 178 N.J. 205 (2003)). "The de novo appeal of the
motion was limited to the legal issue of the admissibility of
the [BAC results]. The case was not heard on its merits." Id.
at 581. "The Law Division judge was empowered to make his
findings and, upon reversal of the municipal court's ruling,
return the case to the municipal court for further proceedings
in accordance with his ruling." Ibid.3 Because the Law Division
3
We cited Rule 7:6-2(c), which provides that "a defendant may
enter a conditional plea of guilty, reserving on the record the
right to appeal from the adverse determination of any specified
(continued)
12 A-3797-13T4
failed to remand, the "[d]efendant did not return to the
municipal court where his plea remained viable. He did not
retract his guilty plea. Therefore, the Law Division judge was
unable to enter a finding of not guilty as defendant's plea of
guilt remained entered upon the record in municipal court."
Ibid. Thus, in Sohl, we reversed the suppression ruling and
remanded to the Municipal Court, "where defendant is to comply
with the terms of his sentence." Ibid.
In Golotta, supra, 354 N.J. Super. at 480, the Law Division
similarly reversed a denial of suppression and entered a
"judgment of acquittal." We rejected "defendant's argument that
[the State's] appeal is barred by the constitutional prohibition
against double jeopardy." Id. at 484. We stressed that "[t]he
State will be barred from seeking review of an acquittal only
'if the ruling of the judge, whatever its label, actually
represents a resolution, correct or not, of some or all of the
factual elements of the offense charged.'" Ibid. (quoting
Widmaier, supra, 157 N.J. at 490 (internal quotation marks
omitted)). We held that "[t]he disposition by the Law Division
judge of the motion to suppress was in no sense a resolution of
the merits of the charged offense. Thus, the use of the phrase
(continued)
pretrial motion. A defendant who prevails on appeal shall be
afforded the opportunity to withdraw the guilty plea."
13 A-3797-13T4
'judgment of acquittal' is not a bar to the State's appeal."
Ibid. Although we affirmed on the merits, ibid., the Supreme
Court addressed the State's appeal on the merits and reversed
the suppression ruling. State v. Golotta, 178 N.J. 205, 209,
229 (2003).
Under Golotta and Sohl, the State's appeal does not violate
double jeopardy. Defendant notes that double jeopardy is meant
to prevent the State from making "repeated attempts to convict
the accused." State v. Barnes, 84 N.J. 362, 370 (1980).
However, the State's appeal here will not result in multiple
trials. If we reverse the Law Division's suppression ruling,
defendant remains subject to a valid conditional guilty plea to
the per se violation, and we need only remand to the Municipal
Court so that defendant can "comply with the terms of [that
court's] sentence" under N.J.S.A. 39:4-50(a)(1)(ii). Sohl,
supra, 363 N.J. Super. at 581.
Defendant's conditional guilty plea distinguishes this case
from the cases cited by defendant in which a trial and acquittal
regarding a DWI charge barred a subsequent conviction on the
same DWI charge. E.g., State v. Cuneo, 275 N.J. Super. 16, 18,
22 (App. Div. 1994); State v. Costello, 224 N.J. Super. 157, 159
(App. Div.), certif. denied, 111 N.J. 596 (1988); State v.
Lanish, 103 N.J. Super. 441, 442-44 (App. Div. 1968), aff’d
14 A-3797-13T4
o.b., 54 N.J. 93 (1969); cf. State v. Kashi, 360 N.J. Super.
538, 544-45 (App. Div. 2003) (distinguishing Lanish), aff’d
o.b., 180 N.J. 45 (2004).4 Here, the State's appeal will not
subject defendant "to a conviction after an acquittal, or to the
possibility of conviction of a more serious offense, or of an
offense carrying a higher penalty" than the per se violation to
which she pled guilty. State v. Kashi, 180 N.J. 45, 48-49
(2004). Therefore, we hold there is no double jeopardy
violation.
IV.
We now turn to the merits of the Law Division's
interpretation of Chun. "A trial court's interpretation of the
law" is "not entitled to any special deference," and its "legal
conclusions are reviewed de novo." State v. Gamble, 218 N.J.
412, 425 (2014). We hew to that standard of review.
The Law Division ruled that "the failure of the State to
provide the defendant with a copy of the AIR on the date of
[her] arrest warrants suppression of the proffered BAC results."
The court reasoned that Chun's "use of the term 'arrestee'
rather than defendant contemplates that a copy of the AIR be
4
Defendant also cites unpublished appellate opinions that
dismissed State appeals. We are not bound by, and do not cite,
unpublished opinions. R. 1:36-3. In any event, those
defendants did not enter a conditional guilty plea, but went to
trial in the Municipal Court.
15 A-3797-13T4
given to the individual while under arrest, and not at a later
time upon request or during discovery once charges are brought
against the defendant." The court found support in the report
of the Alcotest Special Master. King, P.J.A.D., Special Master,
Findings and Conclusions Submitted to N.J. Supreme Court (Feb.
13, 2007) (hereinafter Special Master's Report), reprinted in
State v. Chun, No. 58, 879, 2007 N.J. LEXIS 39 (Feb. 13, 2007)
("LEXIS").5 The Special Master's Report noted: "With the
Alcotest 7110 a permanent record, the AIR, is printed out and a
copy given to the suspect after the test is completed." Id. at
248, LEXIS at *285.
However, the Special Master's comment was not a
recommendation of a legal requirement. Rather, it is part of
his technical comparison of the Alcotest machine and the
breathalyzer machine. Specifically, the comment occurs in his
discussion of why, "[u]nlike the breathalyzer, the Alcotest 7110
is not operator dependent." Ibid., LEXIS at *284. The
breathalyzer only showed the BAC results "where the needle
indicator stopped on the dial," and the "operator simply wrote
down his observation of the reading." Ibid., LEXIS at *285. By
5
We will note the LEXIS page number for the convenience of the
reader.
16 A-3797-13T4
contrast, the Alcotest machine is attached to a printer which
automatically prints an AIR containing the results. Ibid.
As the Special Master stated: "No contemporaneous, machine-
generated permanent record was produced by the breathalyzer.
With the Alcotest 7110 a permanent record, the AIR, is printed
out and a copy given to the suspect after the test is
completed." Ibid. The Special Master's emphasis was that the
Alcotest's "entire process is automatic," resulting in
"accuracy, contemporary documentation of the result, and
elimination of the ability of the operator to falsify or
exaggerate the test outcome. This independence from potential
operator influence and a permanent machine-printed record are
decided advantage over the breathalyzer." Id. at 249, LEXIS at
*285-86.
Further, the Special Master's comment about giving a copy
of the AIR to the suspect derived not from the law, but from the
practices of the Alcohol Drug Testing Unit (ADTU) of the New
Jersey State Police. "The ADTU instructs operators to give one
copy to the local police department, retain one copy, and give a
copy to the subject." Id. at 43, LEXIS at *48. "Upon
completion of a test, the ADTU recommends that the operator give
a copy of the AIR to the subject." Id. at 116-17, LEXIS at
17 A-3797-13T4
*135-36. The Special Master made no mention of requiring such a
practice in his findings of fact or conclusions of law.
Our Supreme Court's comment that the "operator must retain
a copy of the AIR and give a copy to the arrestee" was similarly
part of a technical discussion, not a legal discussion. See
Chun, supra, 194 N.J. at 82. The comment came in the section of
the Court's opinion addressing "How the Alcotest Works." Id. at
75-84. The Court made the comment as part of its "description
of the manner in which the device operates in practice,"
discussing "[o]ne of the claimed advantages of the Alcotest, as
compared to the breathalyzer, [namely] that it is not operator-
dependent." Id. at 79.
The Court did not reference that comment again in its
lengthy and thorough opinion. Most pointedly, there was no
mention of the comment in the Court's detailed section
addressing its "Requirements Prior to the Admissibility of
Alcotest Evidence," id. at 134-49, including its requirements
for "Alcohol Influence Report Admissibility," id. at 145.
Further, no such requirement is mentioned in the Court's
extensive order specifying conditions under which the AIR "is
admissible as evidence of" a defendant's BAC. Id. at 149-54.
Although that section and the order required the "foundational
documents" to be produced in discovery, id. at 134-35, 144-45,
18 A-3797-13T4
148, 153, they did not similarly dictate when the AIR had to be
produced. Thus, the context in which the Court made, and did
not make, its comment suggests that it was not establishing a
legal requirement, despite the word "must."6
We recognize that "'an expression of opinion on a point
involved in a case, argued by counsel and deliberately mentioned
by the court, although not essential to the disposition of the
case . . . becomes authoritative[] when it is expressly declared
by the court as a guide for future conduct.'" State v. Rose,
206 N.J. 141, 183 (2011) (quoting 21 C.J.S. Courts § 230
(2006)). Even "well-reasoned dictum" from our Supreme Court is
"worthy of and entitled to the utmost respect. Indeed, as an
intermediate appellate court, we consider ourselves bound by
carefully considered dictum from the Supreme Court." State v.
Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004),
certif. denied, 182 N.J. 628 (2005); see State v. Dabas, 215
N.J. 114, 136-37 (2013).
6
In analyzing legislation, "the words 'must' and 'shall' are
generally mandatory." Harvey v. Bd. of Chosen Freeholders, 30
N.J. 381, 391 (1959). However, that "presumption is not a
conclusive one" and it can "be overthrown by something in the
character of the legislation or in the context which will
justify a different meaning." Union Terminal Cold Storage Co.
v. Spence, 17 N.J. 162, 166 (1954); e.g., Franklin Estates, Inc.
v. Twp. of Edison, 142 N.J. Super. 179, 184-85 (App. Div. 1976),
aff'd o.b., 73 N.J. 462 (1977); see State v. Thomas, 188 N.J.
137, 149-50 (2006) (citing Norman J. Singer, 1A Sutherland
Statutes and Statutory Construction § 25:4 (6th ed. 2000)).
19 A-3797-13T4
Here, however, we are faced with a countervailing command,
namely the Legislature's specific determination of when a copy
of breath test results must be given to the person tested. The
Legislature provided that "a copy thereof . . . shall be
furnished or made available to the person so tested" "upon his
request." N.J.S.A. 39:4-50.2(b). That statutory requirement
has long been the controlling law, and is reflected in the
statutorily-required Standard Statement. "'Once the Legislature
has made that decision, and has made it within constitutional
bounds, our sole function is to carry it out.'" State v.
French, 437 N.J. Super. 333, 337 (App. Div. 2014) (quoting State
v. Des Marets, 92 N.J. 62, 65-66 (1983)).
We do not believe the Legislature would have mandated that
the police turn over a copy of the breath test results upon
request, or that the police tell the persons tested they have a
right to receive a copy upon request, if the Legislature
believed the police were also required to give a copy
simultaneously to those same persons. If the Legislature had
intended that the police be required to give a copy to the
persons tested at the police station, we see no reason why the
Legislature would not have stated that requirement in N.J.S.A.
39:4-50.2, rather than only requiring the police to provide a
copy upon request. If the Legislature had intended to give the
20 A-3797-13T4
persons tested the right to automatically receive a copy at the
police station, we see no reason why the Legislature would have
required the police to advise the persons tested only that they
had the right to get a copy if they made a request. Regardless
of the merits of providing the persons tested with a copy of the
breath test results at the police station, or requiring the
police to do so without a request, it does not appear that the
Legislature envisioned that requirement or intended to impose
it, and we cannot interpret N.J.S.A. 39:4-50.2 to encompass such
a requirement. See State v. Williams, 218 N.J. 576, 586 (2014).
After carefully reviewing Chun, we cannot find that our
Supreme Court deliberately intended to contravene the statutory
standard in N.J.S.A. 39:4-50.2(b). The Court did not cite
N.J.S.A. 39:4-50.2 or the Standard Statement. The Court gave no
inkling that it considered and replaced the Legislature's
standard that a copy of the breath test must be provided to the
tested person only "upon request," ibid., with a requirement
that the copy must be furnished to the tested person at the
police station without a request. The Court's opinion contains
no reasoning why the Legislature's standard could be superseded.
Although the Court stated that some "conditions upon
admissibility we impose as a matter of constitutional
imperative," Chun, supra, 194 N.J. at 65, the Court never
21 A-3797-13T4
referenced providing a copy at the police station as one of
those conditions, or indicated that providing a copy on request
would be constitutionally inadequate. Nor did the Court invoke
its "supervisory powers over the administration of criminal
justice" to justify such a change. See State v. Ramseur, 106
N.J. 123, 252 n.56 (1987) (declining to exercise its supervisory
powers because "[t]he Legislature has spoken in this area"). We
believe that if the Supreme Court had intended to change the
Legislature's standard, it would have referenced N.J.S.A. 39:4-
50.2(b) and expressly explained that it was altering the
statutory standard and that the Standard Statement should be
similarly revised.
Indeed, subsequent cases contain no indication that the
Court made such a change. Three times since Chun, our Supreme
Court has discussed at length the requirements of N.J.S.A. 39:4-
50.2 and the adequacy and accuracy of the Standard Statement.
State v. O'Driscoll, 215 N.J. 461, 465-81 (2013) (addressing the
reading of an outdated Standard Statement with incorrect
penalties); State v. Schmidt, 206 N.J. 71, 72-89 (2011)
(addressing the alleged incompleteness of the Standard
Statement); State v. Marquez, 202 N.J. 485, 489-515 (2010)
(addressing the need to make the Standard Statement intelligible
to the suspect); see also State v. Spell, 196 N.J. 537, 538-40
22 A-3797-13T4
(2008) (addressing suggested changes to the Standard Statement).
The Court quoted and referenced the Standard Statement's
language that a copy of the test results will be provided "on
request" under N.J.S.A. 39:4-50.2(b). Schmidt, supra, 206 N.J.
at 75, 82; accord O'Driscoll, supra, 215 N.J. at 467; Marquez,
supra, 202 N.J. at 492, 500.
For all these reasons, we hold that the Court's terse
comment in Chun did not reject N.J.S.A. 39:4-50.2(b)'s standard
for when a police officer is required to provide a copy of the
results of a breath test.7 Nor do we feel it appropriate to
rewrite N.J.S.A. 39:4-50.2(b) ourselves.8 Accordingly, we reject
the Law Division's finding of error.
V.
In any event, Chun did not discuss whether disclosure of
the AIR on request, rather than in the police station, would
7
We note that a leading treatise states that although "[p]olice
are trained to retain a copy of the AIR and to give a copy to
the defendant," and cites Chun, supra, 194 N.J. at 82, it
reaffirms "[t]echnically, a test subject must request a copy of
the results," and cites N.J.S.A. 39:4-50.2(b). Robert Ramsey,
New Jersey Drunk Driving Law § 10:20 at 381 & n.1 (2014).
8
Unlike the Supreme Court, "we have no supervisory authority
over courts and no rulemaking power." State v. Spell, 395 N.J.
Super. 337, 348 n.8 (App. Div. 2007) (nonetheless requiring
officers to read an additional paragraph of the Standard
Statement), aff'd as modified, 196 N.J. 537, 539 (2008) (holding
that "the Appellate Division exceeded its mandate" by requiring
officers to read the additional paragraph).
23 A-3797-13T4
require suppression. We hold that suppression of the AIR is not
an appropriate remedy in the absence of prejudice.
The Law Division suggested that suppression was required
because Chun "demanded that, as a precondition for admissibility
of the results of a breathalyzer, the State was required to
establish that: (1) the device was in working order and had been
inspected according to procedure; (2) the operator was
certified; and (3) the test was administered according to
official procedure." Chun, supra, 194 N.J. at 134 (citing
Romano v. Kimmelman, 96 N.J. 66, 81 (1984)).
Here, it was undisputed that the Alcotest device "was in
good working order and that the operator of the device was
appropriately qualified to administer the test." Ibid.
Furthermore, the Municipal Court and the Law Division found that
the test itself "was administered according to official
procedure." Ibid. Both courts rejected defendant's challenges
to the procedure of the test itself.
By contrast, the issue here concerns only the timing of
when a person receives a copy of the AIR — at the police
station, on request, or in discovery. It in no way affects the
validity of the already-completed Alcotest, or the already-
recorded BAC. Delivery of a copy thus differs from the protocol
designed to ensure the Alcotest is properly conducted and the
24 A-3797-13T4
test results are accurate. The Special Master stated that "the
multiple-step testing protocol must be meticulously followed
before the test result is admitted in evidence," and "[i]f the
test protocol or instructions are violated in any respect, the
BAC reading must be rejected as evidence." Special Master's
Report, supra, at 230, 234, 242, LEXIS at *267, 271, 280. He
did not state that the timing of copy delivery should invalidate
a valid test.
Defendant here expressly declined to make a showing of
prejudice from receiving the AIR at the beginning of the
litigation rather than at the police station. Therefore, we see
no basis to suppress her valid test results. See State v.
Wolfe, 431 N.J. Super. 356, 363 (App. Div. 2013) (refusing to
exclude the AIR, despite the State's delay in providing a copy
of the Alcotest foundational documents to the defendant, because
he made "no significant argument of prejudice"), certif. denied,
217 N.J. 285 (2014).
The Law Division also asserted that suppression was
warranted because "failing to provide a copy of the AIR
substantially interferes with the defendant's right to obtain
independent testing under N.J.S.A. 39:4-50.2. By [] immediately
providing a copy of the results, the individual is given a
meaningful opportunity to challenge the results of the AIR."
25 A-3797-13T4
Thus, the Law Division reasoned, "the failure to give the AIR
deprives the defendant of a potential defense[.]"9
However, a tested person does not need a copy of the AIR to
obtain independent testing under N.J.S.A. 39:4-50.2(c). Since
1982, N.J.S.A. 39:4-50.2(c) has provided that "the person tested
shall be permitted to have such samples taken and chemical tests
of his breath, urine or blood made by a person or physician of
his own selection." Ibid. Defendants long have exercised that
right without getting a copy of the breath test results at the
police station.
Furthermore, the AIR does not advise a tested person of
their right to obtain independent testing. Rather, pursuant to
N.J.S.A. 39:4-50.2(e), that advice is given when the officer
reads the Standard Statement to the person, stating "you have
the right, at your own expense, to have a person or physician of
your own selection take independent samples of your breath,
blood or urine for independent testing." Standard Statement,
supra. The Law Division found that Officer Nelson read the
Standard Statement to defendant. She has never contended she
was unaware of her right to independent testing or was prevented
9
We read the Law Division as referring solely to the opportunity
to contradict the Alcotest BAC results through independent
testing. A defendant who receives the AIR upon request,
including in discovery, has ample opportunity to challenge
whether the Alcotest was properly conducted.
26 A-3797-13T4
from exercising it because she did not get a copy of the AIR at
the police station.
We recognize that giving tested persons a copy of the AIR
at the police station informs them of their BAC results, as well
as details about the test. However, the State long used
breathalyzers which did not produce a printout with the BAC
results. Nevertheless, neither the Legislature in drafting
N.J.S.A. 39:4-50.2(b), nor the Executive Branch in crafting the
Standard Statement, found the right of independent testing
required officers to inform persons at the police station of the
BAC found by a breath test. Other than advising a defendant of
the rights expressly set forth in N.J.S.A. 39:4-50.2(b) and (c),
"the statute sets forth no other affirmative duties on the part
of the police." Greeley, supra, 178 N.J. at 43; see State v.
Howard, 383 N.J. Super. 538, 549 (App. Div.), certif. denied,
187 N.J. 80 (2006).
Defendant already had an incentive to obtain independent
testing to show she was not driving with an elevated BAC. She
knew that her breath had been tested for BAC, and that she was
being charged with drunk driving. An independent test might
contradict any BAC found by the State's Alcotest, or undermine
any testimony that she was observed "operat[ing] a motor vehicle
27 A-3797-13T4
while under the influence of intoxicating liquor," N.J.S.A.
39:4-50(a)(1).
In any event, it is defendant's burden to show that she
would have sought independent testing absent the allegedly
improper police conduct, and that "such an examination could
have been conducted in a reasonable period of time so as to
produce relevant or probative evidence." State v. Hicks, 228
N.J. Super. 541, 551 & n.4 (App. Div. 1988), certif. denied, 127
N.J. 324 (1990); see State v. Jalkiewicz, 303 N.J. Super. 430,
434-35 (App. Div. 1997). "[S]o long as a defendant is informed
of the right to an independent test, police conduct will warrant
suppression of BAC test results only if that conduct
affirmatively interferes with or thwarts a defendant's good-
faith attempt to obtain an independent test." Greeley, supra,
178 N.J. at 45. Here, defendant has failed to carry her burden
to show such prejudice, or that the police conduct "render[ed]
the statutory right meaningless." Id. at 43; see Hicks, supra,
228 N.J. Super. at 549. Because there was no "arbitrary
deprivation of the right to an independent test, we reverse the
[Law] Division's judgment suppressing the breath[] results and
reinstate defendant's conviction." Greeley, supra, 178 N.J. at
50.
28 A-3797-13T4
Our decision is supported by consideration of the cost and
benefit of suppressing the AIR that showed defendant's blood
alcohol level was 0.12%. Even when constitutional protections
against search and seizure are at stake, courts: consider that
"'[t]he exclusionary rule generates substantial social costs,
which sometimes include setting the guilty free and the
dangerous at large'"; are "'cautious against expanding it'"; and
apply it only "'where its deterrence benefits outweigh its
substantial social costs.'" State v. Gioe, 401 N.J. Super. 331,
339 (App. Div. 2008) (quoting Hudson v. Michigan, 547 U.S. 586,
591, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56, 64 (2006)),
certif. denied, 199 N.J. 129 (2009). "Sometimes, the cost of
excluding evidence is not justified by the rule and its
purposes." State v. Herrerra, 211 N.J. 308, 330 (2012). Such
an analysis is even more crucial where no constitutional rights
are at issue, as here. E.g., Gioe, supra, 401 N.J. Super. at
341-44 (declining to suppress evidence seized in violation of a
rule).
Suppressing a defendant's valid BAC results, and
eliminating or substantially reducing the license suspension,
subjects the public to a danger the Legislature sought to
prevent. "[T]he primary purpose behind our drunk driving laws
is to remove intoxicated drivers from our roadways and thereby
29 A-3797-13T4
'to curb the senseless havoc and destruction' caused by them."
Chun, supra, 194 N.J. at 71 (quoting State v. Tischio, 107 N.J.
504, 512 (1987)). The Legislature created the per se offense of
driving with a BAC of 0.10% or higher "to take into account
'mounting scientific findings,' to the effect that almost all
drivers suffered reduced driving ability at a BAC of 0.10
percent." Id. at 72 (quoting Tischio, supra, 107 N.J. at 516).
The Legislature subsequently increased the period of license
suspension for a first-offender to seven months. Id. at 74.
License suspensions "'are mainly designed to protect the public
by removing the offenders from the road.'" N.J. Div. of Motor
Vehicles v. Egan, 103 N.J. 350, 357 (1986).
On the other hand, providing a copy of the AIR to the
suspect at the police station, rather than on request or in
discovery, may produce benefits in limited circumstances.
Persons being breath tested may be intoxicated, experiencing
their first arrest, and unrepresented by counsel. Providing a
copy of the AIR at the police station may benefit persons who,
despite hearing the Standard Statement, fail to understand their
right to request a copy, and do not make a request themselves,
through counsel, or in discovery. Here, defendant did not claim
she failed to understand the Standard Statement.
30 A-3797-13T4
Given the significant costs of suppressing valid BAC
results, the limited benefits of the new obligation defendant
seeks to impose, and her failure to show prejudice, we find
suppression unwarranted.
VI.
In any event, we would not apply a new obligation requiring
suppression retroactively. "'[A] case announces a new rule when
it breaks new ground or imposes a new obligation on the
State[.]'" State v. Molina, 187 N.J. 531, 543 (2006). The
"'purpose of the [new] rule'" must be weighed against "'the
degree of reliance placed on the old rule'" and "'the effect a
retroactive application would have on the administration of
justice.'" Ibid. Here, law enforcement has long relied on
N.J.S.A. 39:4-50.2(b). Moreover, given the many Alcotests
performed since the Attorney General approved the Alcotest for
use in 1999, see 31 N.J.R. 770(b) (eff. Feb. 19, 1999),
retroactivity could have a substantial effect and "would expose
the judicial system to the undue burden of resolving numerous
concluded matters," Olds v. Donnelly, 150 N.J. 424, 450 (1997).
Further, "new procedural rules generally do not apply
retroactively." State v. J.A., 398 N.J. Super. 511, 526 (App.
Div.), certif. denied, 196 N.J. 462 (2008). Moreover, where
"the predominant purpose of the new rule is to deter illegal
31 A-3797-13T4
police conduct," that "deterrence purpose will not be
appreciably advanced by retroactive application to police
conduct that has already occurred, [and] the new rule will be
given prospective effect only." State v. Young, 87 N.J. 132,
141 (1981).
In addition, as set forth above, the timing of when a
person receives a copy of the AIR has no effect on the
reliability or accuracy of the already-determined test results.
Thus, the new rule is not "'designed to enhance the reliability
of the factfinding process,'" and "'the old rule did not
"substantially" impair the accuracy of [the fact-finding]
process.'" State v. Fortin, 178 N.J. 540, 648 (2004).
Based on all those considerations, if we were to adopt a
new rule imposing such an obligation and requiring suppression,
we would apply it "prospectively only." Molina, supra, 187 N.J.
at 543. Accordingly, "the AIR report resulting from
[defendant's] test" would still be "admissible against [her]."
State v. Pollock, 407 N.J. Super. 100, 107 (App. Div. 2009)
(applying only prospectively Chun's recalibration requirement
for the Alcotest).
VII.
Although we reverse the suppression ruling here, we
recognize that providing the tested person with a copy of the
32 A-3797-13T4
AIR at the police station does provide benefits in limited
circumstances, as set forth above. Moreover, it may not require
significant effort by law enforcement to provide a copy of the
AIR to the arrestee at the police station. Like the State
Police ADTU, the Attorney General recommends that "the defendant
should be given a copy of the [AIR]."10 We urge all law
enforcement officers to follow their recommendations.
We reverse the suppression order of the Law Division, and
remand to the Municipal Court for defendant to comply with the
terms of the sentence that court imposed for her per se
violation under N.J.S.A. 39:4-50(a)(1)(ii).
10
Attorney General Guideline: Prosecution of DWI & Refusal
Violations, at 20, (Jan. 24, 2005), available at
http://www.state.nj.us/lps/dcj/agguide/d-10jd-dwi-2005.pdf.
33 A-3797-13T4
________________________________________
SABATINO, P.J.A.D., concurring.
I join in the result, which reinstates this defendant's
conviction of a DWI offense under N.J.S.A. 39:4-50(a)(1)(ii). I
write separately because I differ with portions of the main
opinion's discussion within Parts IV and V.
My colleagues rightly acknowledge that "providing a copy of
the AIR to the suspect at the police station, rather than on
request or in discovery, may produce benefits in limited
circumstances." Ante at __ (slip op. at 30). They also
properly recognize that both the State Police and the Attorney
General prescribe the AIR be supplied contemporaneously to the
arrestee when the test is completed. Id. at __ (slip op. at
33). They also recognize, as the State's attorney conceded
before us at oral argument, that supplying the AIR to an
arrestee on the spot is not apt to impose a great burden on the
police. Ibid. They urge, as I do, that this recommended
practice be followed. Ibid.
I part company with my colleagues because I support the Law
Division judge's conclusion that immediate turnover of the AIR
to an arrestee should be more than an aspirational goal.
Because alcohol in a human's body dissipates quickly, time is of
the essence. See Missouri v. McNeely, ___ U.S. ___, ___, 133 S.
Ct. 1552, 1560, 185 L. Ed. 2d 696, 706 (2013) ("It is true that
as a result of the human body's natural metabolic processes, the
alcohol level in a person's blood begins to dissipate once the
alcohol is fully absorbed and continues to decline until the
alcohol is eliminated."); Schmerber v. California, 384 U.S. 757,
771, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966) (noting
that "the percentage of alcohol in the blood begins to diminish
shortly after drinking stops, as the body functions to eliminate
it from the system"); see also Chun, ante, 194 N.J. at 76
(stating that "[e]limination of alcohol also starts as soon as
the person begins to drink").
An arrestee's right to obtain an independent test to
challenge the police's AIR readings is essentially worthless if
the arrestee does not act right away. The AIR contains various
forms of material information, including the critical BAC levels
that can indicate whether it might be worthwhile for the driver
to take immediate action to obtain an independent test or to
have her blood drawn for that purpose. See Chun, ante, 194 N.J.
at 82-83 (describing the information contained in the AIR); see
also Ramsey, N.J. Drunk Driving Law, ante, § 10:25 at 390
(stating that "[t]he alcohol influence report (AIR) is the key
piece of discovery in an Alcotest 7110 case").
For instance, if the BAC levels are borderline, an
independent test potentially might produce levels that are below
2 A-3797-13T4
the legal limits, thereby rebutting the State's burden to prove
guilt of DWI beyond a reasonable doubt. State v. Campbell, 436
N.J. Super. 264, 269 (App. Div.) (stating that "we have long
required the State to establish the elements of a DWI offense by
the heightened criminal standard of proof beyond a reasonable
doubt"), certif. denied, ___ N.J. ___ (2014). Conversely, the
AIR may show that the driver's BAC is way above the limits, and
further indicate no irregularity on its face, thereby suggesting
that independent testing will be a fruitless exercise.
Because DWI based on BAC levels is essentially a strict
liability offense, the arrestee should act quickly, most likely
in an emergent telephone consultation with an attorney, to
decide whether to pursue independent testing. It is therefore
important that the AIR be turned over to the arrestee as soon as
the report is generated by the Alcotest device. In fact, the
standard documents presently used statewide in the process
reflect that a copy of the AIR is to be given on the spot to the
driver. See ante at ___ (slip op. at 5) (noting, in this case,
the printing of the phrase "Copy Given to Subject" at the bottom
of the AIR).
Unlike my colleagues, I am not persuaded that the "on
request" language in N.J.S.A. 39:4-50.2(b) should be read to
signify that the police are to turn over the AIR report only
3 A-3797-13T4
upon an arrestee's request.1 Of course, if an arrestee makes
such a request, the report certainly should be supplied. That
said, I doubt that the Legislature has foreclosed the Judiciary,
within its supervisory authority over the adjudication of DWI
cases, from directing that the AIR be routinely turned over
after the test has been administered, regardless of whether the
arrestee specifically requests it. What could be the harm in
that?
I do not construe the statute to require the police to
withhold the AIR unless the arrestee specifically requests it.
Nor do I read the statute to preclude the Judiciary from
enhancing the procedural protections afforded to the tested
driver. Indeed, the Supreme Court imposed in Chun various
procedural and administrative requirements concerning the use of
the Alcotest that go beyond what the statutes explicitly
require. See Chun, ante, 194 N.J. at 145 (noting, among other
things, that the State must produce the most recent calibration
report, the most recent new standard solution report, and the
certificate of analysis of the 0.10 simulation solution used in
defendant's test prior to admission of the AIR).
1
The present situation differs from Spell, ante, 395 N.J. Super.
at 337, cited by my colleagues, see ante __ (slip op. at 23),
because automatic turnover of the AIR is, in my view at least,
mandated by the Supreme Court in Chun, ante, 194 N.J. at 82-83,
and is not an innovation being crafted by this court.
4 A-3797-13T4
Like the Law Division judge, I read the Court's statement
in Chun that the Alcotest "operator must retain a copy of the
AIR and give a copy to the arrestee," id. at 82, as a sensible
mandate, not a mere recommendation. The term "must" within that
passage is consistent with that interpretation. See Thomas,
ante, 188 N.J. at 149-50; Harvey, ante, 30 N.J. at 391
(observing that generally "the words 'must' and 'shall' are . . .
mandatory"). It is also consistent with the Special Master's
Report, ante.
If the Supreme Court did not intend to require
contemporaneous turnover of the AIR, or if it agrees with my
colleagues that the statute forbids such a judicial gloss, then
perhaps the Legislature might revise N.J.S.A. 39:4-50.2(b) to
require such automatic turnover. Doing so would be in the
interests of justice, fairness, and the attainment of
evidentially-sound dispositions in DWI cases.
Despite the grave dangers and undeniable societal costs of
drunk driving, it is well established that judicial suppression
of BAC results may be an appropriate remedy in certain cases.
See McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1567-68, 185
L. Ed. 2d at 714-15; see also Chun, ante, 194 N.J. at 145-49.
Of course, the State may still prove guilt by other means, such
as observation evidence, as potentially could have been done
5 A-3797-13T4
here. See, e.g., State v. Kent, 391 N.J. Super. 352, 383-85
(App. Div. 2007).
That said, I do not construe the law to require the
automatic suppression of an Alcotest's BAC readings in every
instance where, as in the present case, the police slip up and
neglect to give the AIR contemporaneously to the arrested
driver. As my colleagues point out, suppression of the BAC
readings is not an appropriate remedy unless a defendant shows
that a procedural error caused him or her actual prejudice.
Ante at ___ (slip op. 24); see also Greeley, ante, 178 N.J. at
45-46.
No such actual prejudice is demonstrated in the present
record, in which defendant's BAC reading of .12 is not
borderline and where no arguable irregularity on the face of the
AIR has been identified. In this respect, I believe the Law
Division judge erred in treating the lack of turnover of the AIR
as a compulsory basis for suppression. Instead, a case-by-case
assessment of prejudice should be undertaken before the Alcotest
results are excluded. An inconsequential failure by the police
to turn over the AIR report at the station house should not
jeopardize an otherwise valid DWI prosecution.
I also agree with my colleagues, see ante at ___ (slip op.
at 31-32), that principles of suppression, if they were to be
6 A-3797-13T4
adopted in this context, would be prospective only, thereby
affording law enforcement officials a reasonable opportunity to
adjust to such potential future consequences. Since the Office
of Attorney General (which, notably, is also the issuer of the
Standard Statement that must be read to the arrestee) and the
State Police already call for the AIR to be turned over on the
spot to arrestees, it does not appear that a lengthy period of
transition would be required.
Having made these observations, I join in the reversal of
the Law Division's judgment insofar as it vacated defendant's
conviction under N.J.S.A. 39:4-50(a)(1)(ii).
7 A-3797-13T4