STATE OF NEW JERSEY VS. STEPHEN D. WOOD (17-010, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1685-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHEN D. WOOD,
Defendant-Appellant.
________________________
Submitted September 27, 2018 – Decided June 12, 2019
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Municipal Appeal No. 17-
010.
Michael A. Grasso, attorney for appellant.
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Paula C. Jordao, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Stephen D. Wood appeals his conviction for driving while
intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division that
followed his conviction in municipal court.1 We affirm.
The record reveals that on March 11, 2016, Patrolman Thomas DeNicola of
the Roxbury Police Department was dispatched to investigate an automobile
accident. While on the scene, DeNicola ascertained defendant had operated one of
the cars involved in the accident, and noted defendant had slurred speech,
bloodshot and watery eyes, and that his breath smelled of alcohol. After he refused
to submit to a field sobriety test, defendant was arrested for DWI and taken to the
Roxbury Township Police Department.
DeNicola attempted to use an Alcotest 7110 MKIII-C breath-testing device
(device) at the police station to determine defendant's blood alcohol content
(BAC), but the machine did not operate properly. DeNicola transported defendant
to the Mount Arlington Police Department, where he successfully used Mount
Arlington's device to ascertain defendant's BAC. The Alcohol Influence Report
(AIR) generated by the device revealed defendant's BAC was 0.11%, which is
above the legal limit prescribed by N.J.S.A. 39:4-50(a). Defendant was then
charged with DWI and careless driving.
1
Defendant was also convicted in municipal court of careless driving,
N.J.S.A. 39:4-97, but did not challenge such conviction.
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During the municipal court trial, DeNicola provided various details about the
device used to test defendant at the Mount Arlington Police Department, and
identified various documents, subsequently placed in evidence, that yielded
additional information. These documents included the Calibration Record for the
device, which revealed it had last been calibrated in January 2016. That record
also indicates the device had been calibrated with an Alcotest 7110 black key
temperature probe and a digital thermometer. The serial numbers for the
temperature probe and the digital thermometer were provided in the Calibration
Report.
Other documents showed the temperature probe referenced in the
Calibration Report received a certificate of accuracy in October 2015; the
certificate stated the probe was tested for accuracy with instrumentation traceable
to NIST. The digital thermometer referenced in the Calibration Report received a
certificate of calibration in August 2015; the certificate stated the thermometer was
calibrated using instruments traceable to NIST. The State provided a certificate of
accuracy for another temperature probe, but such probe was not mentioned in the
Calibration Report. However, the latter probe was tested for accuracy with
instrumentation traceable to NIST in August 2015.
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It is not disputed the device used the software known as New Jersey
Firmware version 3.11 (Firmware). The State provided to defendant during
discovery the three core foundational documents, see State v. Chun, 194 N.J. 54,
154 (2008), as well as the twelve foundational documents, id. at 153. All of these
documents were placed in evidence during the municipal court trial.
Defendant presented testimony from an expert who challenged the results of
defendant's test, because the AIR did not include the serial number of the
temperature probe used on the device at the time defendant was tested. The expert
claimed the absence of such information on the AIR deprived defendant of
knowing which of the two temperature probes was used on the device; thus,
defendant was precluded from discovering whether the probe that was actually
used was functioning properly when defendant's BAC was tested. The expert
conceded the Firmware was not programmed to include such information on an
AIR.
The municipal court judge concluded there was sufficient evidence to
find defendant guilty of a per se DWI. On such charge, the judge sentenced
defendant to a two-year driver's license suspension, thirty days of community
service, one year of using an ignition interlock unit, forty-eight hours at the
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Intoxicated Driver's Resource Center, and to pay the applicable fines, costs,
and surcharges.
Defendant appealed his conviction for DWI to the Law Division for a
trial de novo. Following that trial, the Law Division judge upheld the
municipal court judge's determination in a written decision. Among other
things, the Law Division judge observed there is no legal authority to support
defendant's position that the State's failure to identify on the AIR the specific
temperature probe used on the device to test defendant's BAC invalidates the
results of such test.
On appeal, defendant raises the following argument for our
consideration:
POINT I: SINCE THE STATE CANNOT PROVIDE
THE REQUISITE IDENTIFICATION PROOFS AS
TO WHAT TEMPERATURE PROBE WAS USED
DURING THE DEFENDANT'S BREATH TEST,
THE RESULTS OF THE BREATH TEST ARE
INADMISSIBLE IN THIS CASE.
After examining the record and applicable legal authority, we conclude
defendant's contention is without sufficient merit to warrant discussion in a
written opinion, see Rule 2:11-3(e)(2), and affirm defendant's conviction for
DWI for substantially the same reasons expressed by the Law Division judge
in his written decision.
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Affirmed.
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