STATE OF NEW JERSEY v. SCOTT CAMPBELL
DOCKET NO. A-5535-12T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
June 27, 2014
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION; APPROVED FOR PUBLICATION June 27, 2014
Before Judges Messano, Sabatino and Hayden.1
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Summons No. 0112 209587-590.
Brenden T. Shur argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Shur, on the brief).
Kathleen E. Bond, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SABATINO, J.A.D.
Specifically, defendant argues that our case law authorizing the admission of BAC results at trial when the prerequisites for the Alcotest‘s evidential admissibility are shown by clear-and-convincing proof, coupled with the conclusively incriminating treatment of a BAC at or above .08 percent under
For the reasons that fоllow, we reject defendant‘s claim of unconstitutionality, and affirm his conviction.
I.
On June 15, 2012, defendant Scott Campbell was driving a motor vehicle in Hamilton Township in Atlantic County when he
Defendant was arrested and charged with DWI,
After considering the parties’ submissions and oral arguments, the Law Division rejected defendant‘s claim of unconstitutionality and denied declaratory relief. Defendant then entered a conditional guilty plea, preserving his right to appeаl the ruling on the constitutional issue. Sentencing was stayed in anticipation of that appeal, which defendant is now pursuing.
In his brief on appeal, defendant makes the following singular argument:
BECAUSE THE ALCOTEST IS CONSIDERED RELIABLE BASED SOLELY ON CLEAR AND CONVINCING EVIDENCE, A DEFENDANT CANNOT BE FOUND GUILTY OF A PER SE VIOLATION BEYOND A REASONABLE DOUBT BASED UPON THE RESULTS OF THE ALCOTEST.
We reject this claim, essentially because it fails to distinguish appropriately between (1) the State‘s threshold burden to meet the elements required by case law for admitting Alсotest BAC results into evidence in a particular case, as contrasted with (2) the State‘s ultimate burden of proof at trial to establish defendant‘s guilt of a per se DWI offense beyond a reasonable doubt.
The opening portion of
Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant‘s blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant‘s blood shall be subject [to the various discrete penalties enumerated in the statute.]
[
N.J.S.A. 39:4-50(a) (emphasis added).]
The constitutional issues now before us concern “per se” DWI prosecutions that arise under the second basis listed in
Because of the conclusive nature of the BAC results, our case law prohibits defendants from presenting “extrapolation” counter-proof in an effort to show that they were not under the influence while driving. Tischio, supra, 107 N.J. at 506 (issuing this holding in the cоntext of the formerly-used Breathalyzer). “[I]t is the blood-alcohol level at the time of the . . . test that constitutes the essential evidence of the offense.” Ibid.
Although DWI cases are quasi-criminal rather than criminal prosecutions, our courts have applied certain traditional aspects of criminal law to DWI cases. In particular, 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. State v. Howard, 383 N.J. Super. 538, 548 (App. Div.) (citing State v. Dively, 92 N.J. 573, 585 (1983); State v. Di Carlo, 67 N.J. 321, 327 (1975); State v. Emery, 27 N.J. 348, 353 (1958)), certif. denied, 187 N.J. 80 (2006).
The well-known standard of proof beyond a reasonable doubt is the most rigorous burden of persuasion imposed by law. “A reasonable doubt is an honest and reasonable uncertainty in [the fact-finder‘s] mind[] about the guilt of the dеfendant after
The current device widely used by police departments in our State to measure BAC levels is the Alcotest.7 The Alcotest replaced the Breathalyzer years ago as the prevalent testing device.
In State v. Chun, 194 N.J. 54 (2008), the Court rejected challenges to the scientific reliability of the Alcotest, after extensive hearings before a special master and the master‘s detailed fact-finding. The Court held that the Alcotest “is sufficiently scientifically reliable that its reports [measuring
Notably, our case law has held thаt the results of a breath test, formerly the Breathalyzer, now the Alcotest, are not admissible into evidence unless the State shows that the foundational prerequisites of admissibility are satisfied by clear and convincing proof. See Romano, supra, 96 N.J. at 89-90. The clear and convincing standard is less stringent than proof beyond a reasonable doubt, but is more exacting than the usual stаndard of mere “preponderance of the evidence” that is applied in most civil matters.
Evidence that is “clear, cogent, certain, and definite . . . will satisfy the clear and convincing standard of proof.” Bhagat v. Bhagat, 217 N.J. 22, 46 (2014); see also Model Jury Charge (Civil), 1.19, “Burden of Proof — Clear and Convincing
Defendant argues that the application of a clear-and-convincing standard of admissibility of Alcotest results in per se DWI cases has the improper effect of relieving the State of its more rigorous burden of proving a defendant‘s guilt beyond a reasonable doubt. As a remedy, he suggests that Alcotest results no longer be treated as per se conclusive evidencе of a .08 percent BAC violation, but instead only be accorded a rebuttable presumption of correctness.8 We reject defendant‘s argument because it is based on a mistaken premise.
A court‘s decision to admit proof into evidence against a party, even if it is over objection, does not preclude the party from disputing the strength of that evidence at the end of trial. See
Thus, although Alcotest BAC results are admissible into evidence upon a proffer by the State satisfying the Chun conditions to a clear-and-convincing degree, the State‘s ultimаte burden of proof at the end of trial is more rigorous. After hearing all of the testimony and considering all of the admitted exhibits, the judge ultimately must be persuaded that the elements of the offense, including the defendant‘s offending BAC level, have been proven beyond a reasonable doubt.
Assume further that, before trial, the hypothetical defendant moves to suppress the BAC readings. Suppose that the judge hears testimony at the suppression hearing from one of the police officers, who asserts that he watched defendant continuously before the test was administered and that defendant did not vomit or put anything in his mouth during the pre-test period.
Based on the trial judge‘s preliminary impressions of the officer‘s credibility at the suppression hearing, let us assume that she is satisfied, to a clear-and-convincing degree, that the officer is being truthful. But the case is not necessarily over. For instance, after the State rests at trial, the defendant might call other witnesses who were also in the police
In this hypothetical situation, it is conceivable that the trial judge might conclude, upon further reflection in light of the evidence as a whole, that the defendant‘s .08 percent BAC level was not sufficiently proven by the State beyond a reasonable doubt. The judge‘s earlier decision to admit the BAC proof — a ruling that is interlocutory in nature and surely can be reconsidered — does not prevent the court from doubting the strength of that admitted evidence аt the end of the case. In fact, the court can even reconsider its previous decision to admit the evidence, if subsequent developments support such reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384-88 (App. Div. 1996).
To be sure, we are mindful that DWI defendants commonly do not “hang back” and save until the defense case at trial their
We are not suggesting that courts will frequently admit BAC results into evidence under the clear-and-convincing test, but then conclude at the end of trial that such proof is inadequate under the reasonable doubt standard. Frequency is not the issue. Our point is that the two standards have different functions at different phases of the case. Defendant‘s argument
For these reasons, we discern no constitutional flaw in the evidential aspеcts that govern per se DWI cases prosecuted in our State.10 The State will always bear in each prosecution the burden of proving a defendant‘s guilt beyond a reasonable doubt. The fact that a somewhat lower proof standard is used for admitting the BAC results into evidence does not dilute that ultimate burden.
Affirmed. Remanded for the imposition of sentenсe. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION