110 A.3d 97
N.J. Super. Ct. App. Div.2015Background
- Gale Sorensen was arrested for DWI after observed erratic driving; an Alcotest at the station produced an Alcohol Influence Report (AIR) showing BAC 0.12%.
- Officer printed the AIR but did not give a copy to Sorensen at the station; the Standard Statement (which tells arrestees they may request a copy) was read.
- Sorensen entered a conditional guilty plea to the per se (BAC) charge while conceding observation-based DWI; she appealed admissibility of the Alcotest results.
- Municipal Court admitted the AIR and sentenced on the per se violation; on de novo review the Law Division suppressed the AIR because Chun stated the operator “must…give a copy to the arrestee,” then sentenced Sorensen on the observation violation.
- The State appealed; the Appellate Division reversed the Law Division suppression, held no double jeopardy bar to the State’s appeal, and remanded to enforce the Municipal Court per se sentence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Sorensen) | Held |
|---|---|---|---|
| Whether the State's appeal is barred by double jeopardy | Appeal allowed; conditional plea preserves State's right to seek reinstatement of per se conviction | Law Division’s suppression amounted to an acquittal; double jeopardy bars State appeal | No double jeopardy bar; conditional plea preserved State's appellate rights; Law Division did not resolve per se factual elements |
| Whether Chun requires giving the AIR to the arrestee at the station such that failure mandates suppression | Chun's description was technical; statutory scheme (N.J.S.A. 39:4-50.2(b)) requires providing a copy on request, not automatically at station | Chun’s statement that operator "must…give a copy to the arrestee" means contemporaneous turnover is required; suppression warranted | Chun’s remark was descriptive/dicta, not a judicially imposed timing requirement; statute controls and requires delivery only upon request |
| Whether failing to give the AIR at the station requires suppression absent prejudice | The delay did not affect test reliability; defendant suffered no prejudice and had been informed of rights; suppression inappropriate | Immediate delivery necessary to preserve opportunity for independent testing; delay interferes with right to independent testing and merits suppression | Suppression is not appropriate without a showing of prejudice; defendant did not show she was thwarted from independent testing |
| Whether a new rule requiring contemporaneous AIR turnover should be applied retroactively | Even if adopted, it should be prospective because law enforcement relied on the preexisting statutory rule and Chun was not a clear change | Immediate application would vindicate independent-testing rights and deter police lapses | Any new obligation would apply prospectively only; court declines to adopt a retroactive suppression rule |
Key Cases Cited
- State v. Chun, 194 N.J. 54 (2008) (Alcotest admissibility framework; descriptive discussion of AIR procedures)
- State v. Greeley, 178 N.J. 38 (2003) (conditional guilty plea preserves right to appeal suppression ruling)
- State v. Sohl, 363 N.J. Super. 573 (App. Div. 2003) (Law Division must remand when suppression reversed; conditional pleas remain viable)
- State v. Golotta, 354 N.J. Super. 477 (App. Div. 2002) (Law Division’s labeling of suppression as acquittal does not bar State appeal where merits not decided)
- State v. Golotta, 178 N.J. 205 (2003) (Supreme Court addressed and reversed suppression on merits)
- State v. Widmaier, 157 N.J. 475 (1999) (double jeopardy principles; labeling of ruling irrelevant to substance)
- State v. Kashi, 180 N.J. 45 (2004) (double jeopardy and scope of retrial/appeal where prior proceedings occurred)