STATE OF NEW JERSEY v. GALE SORENSEN
DOCKET NO. A-3797-13T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
February 27, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION Fеbruary 27, 2015 APPELLATE DIVISION
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.
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%.
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).
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
The Legislature also provided that “[a] standard statement . . . shall be read by the police officer to the person under arrest.”
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 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_statement.pdf (hereinafter Standard Statement).]1
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
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, [
Defendant appeared before the Municipal Court. At the beginning of the hearing,
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 hаve 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.
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.
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
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 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 Stаte‘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 оne of those courts grants defendant‘s 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
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 оf 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.
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
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, actuаlly 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). 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.”
‘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, dеfendant 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
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 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
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
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
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 documentatiоn 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 *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 “oрerator 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
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).
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.”
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 testеd at the police station, we see no reason why the Legislature would not have stated that requirement in
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
After carefully reviewing Chun, we cannot find that our Supreme Court deliberately intended to contravene the statutory standard in
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
For all these reasons, we hold that the Court‘s terse comment in Chun did not reject
V.
In any event, Chun did not discuss whether disclosure of the AIR on request, rather than in the police station, would 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 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.
Dеfendant 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
Furthermore, the AIR does not advise a tested person of their right to obtain independent testing. Rather, pursuant to
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
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 thаt she was observed “operat[ing] a motor vehicle while under the influence of intoxicating liquor,”
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
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, 16 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 lаws is to remove intoxicated drivers from our roadways and thereby ‘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. 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
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 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 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
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
SABATINO, P.J.A.D., concurring.
I join in the result, which reinstates this defendant‘s conviction of a DWI offense under
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 рolice‘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 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
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 solutiоn report, and the certificate of analysis of the 0.10 simulation solution used in defendant‘s test prior to admission of the AIR).
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
Despite the grave dangers and undeniable societal costs of drunk driving, it is well estаblished 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 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. at 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 thе 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 adopted
Having made these observations, I join in the reversal of the Law Division‘s judgment insofar as it vacated defendant‘s conviction under
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION