State of New Jersey v. Gale Sorensen

110 A.3d 97, 439 N.J. Super. 471

• Court: New Jersey Superior Court Appellate Division
• Decided: February 27, 2015
• Docket: A-3797-13
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

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