STATE OF NEW JERSEY, Plaintiff-Appellant,
v. DIMKO MICESKI,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant-Respondent. _____________________________________
Argued March 16, 2011 - Decided April 8, 2011
Before Judges Ashrafi, Nugent and Newman.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4858.
Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for appellant (Camelia M. Valdes, Passaic County Prosecutor, Mr. Hsieh, of counsel and on the brief).
Adolph J. Galluccio argued the cause for respondent (Fontanella Benevento Galluccio & Smith, attorneys; John Vincent Saykanic and Mr. Galluccio, on the brief).
PER CURIAM On leave granted, the State appeals from the Law Division's
May 14, 2010 order prohibiting the State from using defendant Dimko Miceski's Alcotest reading as evidence of a per se
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5437-09T2
violation of driving while intoxicated (DWI), N.J.S.A. 39:4-50. We reverse.
On April 19, 2009, defendant was arrested in Little Falls and charged with DWI. The police administered two breath tests using the Alcotest 7110 MK III-C (Alcotest). "The Alcotest is an embedded system, which utilizes two separate methods of measurement on each provided breath sample: electric chemical oxidation sensing (EC) and infrared sensing (IR)." State v. Rivera, 411 N.J. Super. 492, 494 (App. Div. 2010) (citing State v. Chun, 194 N.J. 54, 78, cert. denied, U.S. , 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)). The EC and IR readings are printed on an Alcohol Influence Report (AIR). Chun, supra, 194 N.J. at 79.
If the results are within the acceptable tolerance, the AIR shows the [blood alcohol concentration (BAC)] values for each IR and EC reading for each of the tests to three decimal places. The AIR then reports the final BAC test result, which will be the lowest of the four acceptable readings, that is, readings within acceptable tolerance, which the device is programmed to truncate to two decimal places.... The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee.
[Id. at 83.] Defendant's first breath test resulted in an EC reading of
0.085% and an IR reading of 0.084%. His second breath test
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resulted in an EC reading of 0.084% and an IR reading of 0.084%. The final truncated BAC reading (final BAC) was 0.08%.
Defendant challenged the Alcotest results in a hearing conducted by the municipal court pursuant to N.J.R.E. 104. The sole witness was defendant's DWI expert, Gary Aramini. Aramini first discussed the calibration of the Alcotest, a subject
explained
in Chun:
Calibration of the machines involves attaching the machine to an external simulator which uses a variety of solutions of known alcohol concentrations to create vapors that approximate human breath. By exposing the IR and EC mechanisms to these differing concentrations, and by analyzing the device's ability to identify accurately each of those samples within the acceptable range of tolerance, referred to as a linearity test, the coordinator is able to ensure that the machine is correctly calibrated.
[Chun, supra, 194 N.J. at 84 (emphasis added).]
"Tolerance is the range of any set of measurements that is accepted as being representative of a true reading." Id. at 110.
According to Aramini, when the Alcotest was calibrated on December 8, 2008, the control and linearity tests resulted in high readings. On test number one, a 0.10% simulator solution tested at 0.101%; on test number four, a 0.080% fuel cell tested at 0.081%. Aramini provided a technical explanation for the
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readings, but conceded they were within the acceptable range of tolerance.
When "a new solution change" was made on April 10, 2009,1 testing indicated the 0.10% solution resulted in a 0.102% EC reading and a 0.103% IR reading. Aramini again conceded the readings were within the acceptable range of tolerance.
Lastly, Aramini testified there is 0.005% margin of error in any Alcotest AIR reading. He opined that the 0.005% margin of error should reduce defendant's final BAC reading, and he stated within a reasonable degree of scientific certainty that defendant's actual BAC could have been below 0.08%.
The municipal court denied the motion to suppress the Alcotest readings, and thereafter defendant entered a conditional guilty plea. The court sentenced defendant, a third-time offender, for a per se violation, to 180 days incarceration in county jail, suspended his driving privileges for ten years, ordered three years of the use of an ignition interlock device, and imposed appropriate fines and penalties. The court stayed the jail sentence and monetary penalties pending appeal.
1
On direct examination, Aramini testified the new solution change occurred on April 10, 2008. On cross-examination, he testified the change occurred on April 10, 2009.
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After de novo review, the Law Division granted in part defendant's motion to suppress the Alcotest readings. Because the calibration testing demonstrated "an unofficially high reading," the court concluded the actual BAC could have been 0.78% or 0.79%. The Law Division remanded the matter to municipal court with an order that the Alcotest results were admissible, but could not result in a per se DWI violation. The Law Division also stayed its order and all further municipal court proceedings pending the State's appeal.
In its appeal, the State raises one issue:
THE LAW ADMISSIBLE LOWERED
DIVISION ERRONEOUSLY ALCOTEST EVIDENCE, THE READING, AND
POINT I - SUPPRESSED ARBITRARILY DISREGARDED STATE V. CHUN.
Generally, our function as a reviewing court is to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). However, because the Law Division's decision involves an interpretation of Chun, our scope of review is de novo, without affording any special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. Rivera, supra, 411 N.J. Super. at 497; State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010).
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The Alcotest has been held to be "generally scientifically reliable," and with certain modifications, its results admissible to support a per se violation of N.J.S.A. 39:4-50. Chun, supra, 194 N.J. at 65. The expert's opinions concerning tests conducted during calibration and the solution change did not establish any flaw in the Alcotest or its readings. Instead, the expert's concession that the readings were within acceptable tolerances established that they were within "the range of any set of measurements that is accepted as being representative of a true reading." Chun, supra, 194 N.J. at 110.
We disagree with defendant that an adjustment other than that required by Chun must be made to the final BAC because of a 0.005% margin of error. The 0.005% margin of error is taken into consideration when the Alcotest is properly administered:
Chun ordered the programmed Alcotest range of tolerance be revised such that the benchmark for a true reading of BAC must be set at plus or minus five percent or, in absolute terms, "0.005 percent BAC from the mean or plus or minus five percent of the mean, whichever is greater[.]" Id. at 116. This requires two calculations when setting the upper and lower limits. Id. at 116, 119. Because the Firmware version 3.11 at issue utilized a plus/minus ten percent range of tolerance, manual calculations on a worksheet developed by the Court (Worksheet A) were required to assure accuracy. Id. at 118.
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[Rivera, supra, 411 N.J. Super. at 496.] Thus, the margin of error is incorporated in the Worksheet A calculations. If the EC and IR readings fall within the acceptable range of tolerance, the final BAC reading shall be deemed sufficiently reliable to be admissible as proof of a per se violation. See Chun, supra, 194 N.J. at 65, 119-20, 148. Defendant's argument, that under the facts of this case a 0.005% reduction should be made to the final BAC, is contrary to the holding in Chun.
Defendant raises an unrelated issue in his brief. He contends his conditional guilty plea should be vacated because he was not afforded the right of allocution before he was sentenced. The case is before us on leave granted to the State. Defendant did not file a cross-motion for leave to appeal. Consequently, this issue is not properly before us and we decline to address it. See State v. Banko, 364 N.J. Super. 210, 223 (App. Div. 2003), rev'd on other grounds, 182 N.J. 44 (2004).
Reversed and remanded to the Law Division for further proceedings consistent with this opinion.
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