STATE V. OGDEN DECISION SEPTEMBER 9, 2018 DWI FOUNDATIONAL DOCUMENT APPEAL ARGUMENT
Submitted by New Jersey DWI Lawyer, Jeffrey Hark.
In this DWI appeal the defendant attempted to argue that the state’s failure to introduce the State Trooper’s Alcotest operating card at the time of trial was a violation of the NJ Supreme Court mandate of State v. Chun and as a result of state’s failure to comply with the procedural requirements of Chun require the defendant’s conviction be reversed.
The Chun requirements were laid out in the seminal NJ Supreme Court decision of State v. Chun. In that case the special master outline numerous “foundational documents” that had to be admitted into evidence in order to prove the Alcotest machine was in proper working order and that the officer operating the machine was properly certified and trained. If and when these foundational documents were admitted the Alcotest results would be admitted on their face without any ability to contest the breath test results; causing any defendant great difficulty to overcome the threshold argument that the machine was not working properly.
In this case the State argued that because the officer operating the Alcotest machine signed the appropriate calibration record and the control test record forms any failure to introduce the operating officer’s certification card was not fatal in this case. On appeal from the municipal court, the Law Division judge rendered a decision that the defendant was guilty of a ‘per se’ violation based on the Alcotest results of a .14 and she was bound by the evidentiary record established in the municipal Court judge regarding the evidentiary documents admitted at the time of the municipal court trial. She also recognize that she could make her own assessment of the sufficiency of the evidence and ruled that the calibration documents and the troopers certification establish the requisite officer qualifications and authority to operate and calibrate the Alcotest machine regardless of the fact that the Alcotest operator card and coordinator certification card we’re not introduced at the time of trial. The Law Division judge also rejected the defendants expert argument that the failure to introduce the operator certification card of the trooper performing the test was inconsistent with the mandate ward required in the state version decision. In other words, at the fan and are you going to peel that the failure to comply with the production at introduction at the time of trial of the “foundational documents “denied the state it’s ability to admit the Alcotest results and made his per se violation/conviction void.
The appellate court recurring it’s limited role in overturning trial court decisions ruled:
“On trial de novo appeal to the Law Division, defendant renewed his contention that the foundational documents to admit the Alcotest results were not satisfied. The judge stated she was bound by the evidentiary record from the municipal court in accordance with State v. Thomas, 372 N.J. Super. 29, 31 (Law. Div. 2002), but recognized under State v. Kashi, 180 N.J. 45, 48 (2004), that she could make her own “assessment of the sufficiency of the evidence contained within the record.” The judge found that the admitted calibration documents with the trooper’s certification established his “requisite ability, qualifications and authority to operate and calibrate the Alcotest” such that it was not necessary for the State to admit into evidence his credentials – the Alcotest operator card and coordinator certification card. Thus, Judge Justus ruled that Chun’s documentation requirements were satisfied. Moreover, the judge determined that defendant’s reliance upon State v. Kuropchak, 221 N.J. 368, 384-85 (2015), was misplaced because there the Court found that the State’s evidence of the wrong certificate for the semi-annual calibration, instead of the recent Calibrating Unit New Standards Solution Report, was contrary to Chun; thereby making the Alcotest results inadmissible and the finding that the defendant was guilty per se of DWI invalid. She further found as not credible the testimony of defendant’s expert that the officer’s operation of the Alcotest was inconsistent with Chun.
Before us, defendant again argues that the State did not have the necessary foundational documents under Chun to admit the Alcotest results into evidence to sustain his per se DWI conviction. He contends that, without the testimony of the trooper coordinator or a letter from the Attorney General as to the qualifications of the coordinator, the Alcotest Coordinator Instructor card or replica certificate must be entered into evidence to presumptively satisfy Chun’s credentials requirement. In reviewing a trial court’s decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division’s decision. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only “a very obvious and exceptional showing of error” will support setting aside the Law Division and municipal court’s “concurrent findings of facts.” Id. at 474. However, we exercise plenary review of the trial court’s legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011).”
In conclusion, the New Jersey Appellate court ruled:
The results from Alcotests have been deemed scientifically reliable. Chun, 194 N.J. at 66. Furthermore, Alcotest results are admissible to prove a per se violation of DWI. Ibid. In Chun, the Court held that a condition precedent to the admissibility of Alcotest results is proof that (1) the Alcotest was in working order and inspected prior to the procedure in question, (2) the operator was certified, and (3) the operator administered the test according to official procedure. Id. at 134. The first Chun factor requires the State to produce and admit three foundational documents:
(1) the most recent Calibration Report prior to a defendant’s test, including control tests, linearity tests, and the credentials of the coordinator who performed the calibration;
(2) the most recent New Standard Solution Report prior to a defendant’s test; and
(3) the Certificate of Analysis of the 0.10 Simulator Solution used in a defendant’s control tests. [Id. at 154.]
The Court has also directed the State to disclose in discovery twelve other foundational documents. Id. at 153.
There is no dispute that the State produced in discovery the core foundational documents required under Chun, ibid., to show that the Alcotest used for defendant’s breathalyzer samples was in working order and inspected prior to defendant’s test. We agree with Judge Justus’ reasoning that the calibration documents were sufficient proof that Klimak had the ability, qualifications, and authority to operate and calibrate the Alcotest. Klimak’s certifications in the calibration documents provide the foundation required for admission of the calibration documents as business records pursuant to N.J.R.E. 803(c)(6). They establish that Klimak tested the device and reported the results on April 22, 2016, in the regular course of his duties as a duly authorized Alcotest coordinator and based on what he did and observed. And, in Chun, 194 N.J. at 142, the Court plainly stated that all of the “foundational documents” it recognized “qualify as business records.” Accordingly, we discern no error in Judge Justus’ decision finding defendant guilty per se of DWI.