NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5535-12T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, June 27, 2014 v. APPELLATE DIVISION SCOTT CAMPBELL,

Defendant-Appellant. __________________________________

Argued May 28, 2014 - Decided June 27, 2014

Before Judges Messano, Sabatino and Hayden.1

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Summons No. 0112 209587-590.

Brenden T. Shur argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Shur, on the brief).

Kathleen E. Bond, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SABATINO, J.A.D.

1 Judge Hayden did not participate in oral argument. However, with the consent of counsel, she has joined in this opinion. R. 2:13-2(b). In this appeal of his drunk driving ("DWI") conviction

under N.J.S.A. 39:4-50(a), defendant presents a novel

constitutional argument. He challenges the manner in which

Alcotest evidence of a driver's blood alcohol content ("BAC") is

admitted and relied upon at DWI trials in so-called "per se"

cases in our State involving a BAC measurement at or above .08

percent.

Specifically, defendant argues that our case law

authorizing the admission of BAC results at trial when the

prerequisites for the Alcotest's evidential admissibility are

shown by clear-and-convincing proof, coupled with the

conclusively incriminating treatment of a BAC at or above .08

percent under N.J.S.A. 39:4-50(a), combine to create an unfair

and constitutionally invalid situation. According to defendant,

these aspects of our DWI statutes and case law improperly

relieve the State of its constitutional burden of establishing a

driver's guilt in per se cases by the more rigorous standard of

proof beyond a reasonable doubt.

For the reasons that follow, we reject defendant's claim of

unconstitutionality, and affirm his conviction.

I.

On June 15, 2012, defendant Scott Campbell was driving a

motor vehicle in Hamilton Township in Atlantic County when he

2 A-5535-12T4 was stopped by the police.2 Police officers tested his breath

with the Alcotest device. According to the State's submissions,

the test measured defendant's BAC at .12 percent, a level over

the .08 percent limit set forth in N.J.S.A. 39:4-50(a).

Defendant was arrested and charged with DWI, N.J.S.A. 39:4-

50;3 reckless driving, N.J.S.A. 39:4-96; failure to exhibit

documents, N.J.S.A. 39:3-29; and careless driving, N.J.S.A.

39:4-97. Defendant moved to suppress the Alcotest results in

municipal court.4 At defendant's request, the municipal court

stayed the matter so that he could file an application for

declaratory relief in the Law Division. Defendant then filed

such an application, seeking to have the court declare

unconstitutional the State's reliance in per se prosecutions

2 The sparse record supplied to us contains very little factual information. The record does not include, for example, police reports or a transcript of the suppression motion hearing or other proceedings in municipal court. In any event, the matters presented on appeal concern purely legal issues. 3 The parties' briefs and oral arguments on appeal suggest, more specifically, that the State has been prosecuting defendant under N.J.S.A. 39:4-50(a) for driving with a BAC at or above .08 percent, rather than attempting to prove that he was operating a motor vehicle while he was actually "under the influence" of alcohol. 4 Defendant's brief indicates that the suppression motion was denied, although no documentary support of that is included in his appendix.

3 A-5535-12T4 upon Alcotest BAC results admitted into evidence by only a

clear-and-convincing proof standard.

After considering the parties' submissions and oral

arguments, the Law Division rejected defendant's claim of

unconstitutionality and denied declaratory relief. Defendant

then entered a conditional guilty plea, preserving his right to

appeal the ruling on the constitutional issue. Sentencing was

stayed in anticipation of that appeal, which defendant is now

pursuing.

In his brief on appeal, defendant makes the following

singular argument:

BECAUSE THE ALCOTEST IS CONSIDERED RELIABLE BASED SOLELY ON CLEAR AND CONVINCING EVIDENCE, A DEFENDANT CANNOT BE FOUND GUILTY OF A PER SE VIOLATION BEYOND A REASONABLE DOUBT BASED UPON THE RESULTS OF THE ALCOTEST.

We reject this claim, essentially because it fails to

distinguish appropriately between (1) the State's threshold

burden to meet the elements required by case law for admitting

Alcotest BAC results into evidence in a particular case, as

contrasted with (2) the State's ultimate burden of proof at

trial to establish defendant's guilt of a per se DWI offense

beyond a reasonable doubt.

4 A-5535-12T4 II.

The opening portion of N.J.S.A. 39:4-50(a) specifies four

distinct alternative grounds for finding a motorist guilty of

DWI:

Except as provided in subsection (g) of this section, a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle owned by him or in his custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood shall be subject [to the various discrete penalties enumerated in the statute.]

[N.J.S.A. 39:4-50(a) (emphasis added).]

The constitutional issues now before us concern "per se" DWI

prosecutions that arise under the second basis listed in

N.J.S.A. 39:4-50(a), i.e., cases involving the defendant's

operation of a motor vehicle while having "a blood alcohol

concentration of 0.08% or more by weight of alcohol in [his or

her] blood."5 Every state has a similar per se DWI statute.6

5 We need not concern ourselves here with DWI prosecutions pursued on alternative grounds, such as so-called "observation" cases based on other non-BAC evidence of a defendant's (continued)

5 A-5535-12T4 As the term "per se" indicates, in such cases the State

does not have to prove that the defendant driver with a BAC at

or above .08 percent was actually intoxicated or impaired while

he or she was behind the steering wheel. State v. Tischio,

(1987); see also State v. D'Agostino,

(Law Div. 1984) (noting that since the

Legislature's amendment of the statute in 1983, in per se cases

"the issue no longer is whether the defendant was drunk . . .

[o]r whether he was under the influence of alcohol . . . [o]r

whether his driving ability was impaired in any fashion"). It

(continued) impairment while driving. See, e.g., State v. Kent,

(App. Div. 2007) (affirming a defendant's DWI conviction based upon his erratic driving in causing a single- car accident and a police officer's field observations of his multiple signs of inebriation, despite the inadmissibility of hearsay laboratory reports measuring the BAC level in defendant's blood sample); see also State v. Bealor,

(2006) (finding that factual observations of defendant's appearance and behavior, along with expert proofs indicating the presence of a drug in defendant's system, were sufficient to prove that defendant operated a motor vehicle while under the influence of marijuana). 6 "All 50 states and the District of Columbia have per se laws making it [an offense] to drive with a blood alcohol concentration (BAC) at or above a specified level, currently 0.08 percent (0.08 g alcohol per 100 ml blood)." Alcohol- Impaired Driving: DUI/DWI, Ins. Inst. for Highway Safety, Highway Loss Data Inst. (June 2014), http://www.iihs.org/iihs/topics/laws/dui.

6 A-5535-12T4 suffices to prove that the driver's BAC measured at or in excess

of the prohibited level.

Because of the conclusive nature of the BAC results, our

case law prohibits defendants from presenting "extrapolation"

counter-proof in an effort to show that they were not under the

influence while driving.

(issuing this holding in the context of the formerly-used

Breathalyzer). "[I]t is the blood-alcohol level at the time of

the . . . test that constitutes the essential evidence of the

offense."

Although DWI cases are quasi-criminal rather than criminal

prosecutions, our courts have applied certain traditional

aspects of criminal law to DWI cases. In particular, 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. State v. Howard,

(App. Div.) (citing State v. Dively,

(1983);

State v. Di Carlo,

(1975); State v. Emery,

(1958)), certif. denied,

(2006).

The well-known standard of proof beyond a reasonable doubt

is the most rigorous burden of persuasion imposed by law. "A

reasonable doubt is an honest and reasonable uncertainty in [the

fact-finder's] mind[] about the guilt of the defendant after

7 A-5535-12T4 [the fact-finder has] given full and impartial consideration to

all of the evidence." State v. Wakefield,

(2007) (quoting State v. Medina,

(1996), cert.

denied,

,

,

(1997)). "Proof beyond a reasonable doubt is proof, for

example, that leaves [the fact-finder] firmly convinced of the

defendant's guilt."

(quoting

). "If, based on [the fact-finder's] consideration of the

evidence, [he or she is] firmly convinced that the defendant is

guilty of the crime charged, [he or she] must find [defendant]

guilty."

(quoting

); see

also Model Jury Charge (Criminal), "Reasonable Doubt" (1997).

The current device widely used by police departments in our

State to measure BAC levels is the Alcotest.7 The Alcotest

replaced the Breathalyzer years ago as the prevalent testing

device.

In State v. Chun,

(2008), the Court rejected

challenges to the scientific reliability of the Alcotest, after

extensive hearings before a special master and the master's

detailed fact-finding. The Court held that the Alcotest "is

sufficiently scientifically reliable that its reports [measuring

7 We are aware that the State is presently considering switching to another device as the result of certain developments with the manufacture of the Alcotest not relevant to this appeal.

8 A-5535-12T4 BAC levels] may be admitted in evidence."

. As a

predicate of that holding, however, the Court specified in Chun

three conditions that must be met in each case in order for

Alcotest BAC results to be admitted into evidence. In

particular, the Court held, as it had previously in Breathalyzer

cases, that the State must show 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."

at 134 (citing Romano v.

Kimmelman,

(1984)).

Notably, our case law has held that the results of a breath

test, formerly the Breathalyzer, now the Alcotest, are not

admissible into evidence unless the State shows that the

foundational prerequisites of admissibility are satisfied by

clear and convincing proof. See

-

90. The clear and convincing standard is less stringent than

proof beyond a reasonable doubt, but is more exacting than the

usual standard of mere "preponderance of the evidence" that is

applied in most civil matters.

Evidence that is "clear, cogent, certain, and definite

. . . will satisfy the clear and convincing standard of proof."

Bhagat v. Bhagat,

(2014); see also Model Jury

Charge (Civil), 1.19, "Burden of Proof – Clear and Convincing

9 A-5535-12T4 Evidence" (2011) ("Clear and convincing evidence . . . is

evidence so clear, direct, weighty in terms of quality, and

convincing as to cause you to come to a clear conviction of the

truth of the precise facts in issue."). This standard of

admissibility applies to Alcotest evidence. See State v.

Ugrovics,

, 489 n.1 (App. Div. 2009) (noting

that "the State's burden of proof as to the admissibility of the

Alcotest [specifically, the three preconditions set forth in

Chun] remains clear and convincing evidence") (citing

).

Defendant argues that the application of a clear-and-

convincing standard of admissibility of Alcotest results in per

se DWI cases has the improper effect of relieving the State of

its more rigorous burden of proving a defendant's guilt beyond a

reasonable doubt. As a remedy, he suggests that Alcotest

results no longer be treated as per se conclusive evidence of a

.08 percent BAC violation, but instead only be accorded a

rebuttable presumption of correctness.8 We reject defendant's

argument because it is based on a mistaken premise.

8 Defendant cites, by comparison, case law under a prior version of the DWI statute that used such a presumption before the per se test was adopted. See, e.g., State v. Protokowicz,

(App. Div. 1959).

10 A-5535-12T4 Defendant presumes that once the trial court decides to

admit Alcotest BAC results into evidence, a finding of guilt is

automatic and there is nothing that the accused can do to

prevent that outcome. This is not so.

A court's decision to admit proof into evidence against a

party, even if it is over objection, does not preclude the party

from disputing the strength of that evidence at the end of

trial. See N.J.R.E. 104(e) (making clear that a court's ruling

to admit proof into evidence does not limit the right of a party

to contest the "weight or credibility" of such evidence); State

v. Falcetano,

(Law Div. 1969). Before

a final judgment of a defendant's guilt can be entered, the

evidence must have shown beyond a reasonable doubt that he or

she is guilty.

Thus, although Alcotest BAC results are admissible into

evidence upon a proffer by the State satisfying the Chun

conditions to a clear-and-convincing degree, the State's

ultimate burden of proof at the end of trial is more rigorous.

After hearing all of the testimony and considering all of the

admitted exhibits, the judge ultimately must be persuaded that

the elements of the offense, including the defendant's offending

BAC level, have been proven beyond a reasonable doubt.

11 A-5535-12T4 A simple example will illustrate this point. Imagine that

a defendant contends that his BAC results are unreliable because

the police allegedly deviated from the procedures mandated by

Chun. More specifically, suppose that he maintains that the

police failed to observe him for the required twenty minutes

before the Alcotest was administered. See

. According to that defendant, he vomited or put something

in his mouth while he was out of the police officers' view a few

minutes before they tested his breath, thereby confounding the

BAC reading.

Assume further that, before trial, the hypothetical

defendant moves to suppress the BAC readings. Suppose that the

judge hears testimony at the suppression hearing from one of the

police officers, who asserts that he watched defendant

continuously before the test was administered and that defendant

did not vomit or put anything in his mouth during the pre-test

period.

Based on the trial judge's preliminary impressions of the

officer's credibility at the suppression hearing, let us assume

that she is satisfied, to a clear-and-convincing degree, that

the officer is being truthful. But the case is not necessarily

over. For instance, after the State rests at trial, the

defendant might call other witnesses who were also in the police

12 A-5535-12T4 station at the relevant time. Suppose those defense witnesses

testify that they saw the officers leave the room during the

twenty-minute pre-test interval, while the defendant vomited or

placed something in his mouth. Or perhaps the defendant himself

takes the stand and credibly insists that he was not

continuously observed by the police for the required twenty

minutes before the testing. Or perhaps defendant presents at

trial an expert witness, who persuasively explains how the

police deviated from the protocol required by Chun.

In this hypothetical situation, it is conceivable that the

trial judge might conclude, upon further reflection in light of

the evidence as a whole, that the defendant's .08 percent BAC

level was not sufficiently proven by the State beyond a

reasonable doubt. The judge's earlier decision to admit the BAC

proof  a ruling that is interlocutory in nature and surely can

be reconsidered  does not prevent the court from doubting the

strength of that admitted evidence at the end of the case. In

fact, the court can even reconsider its previous decision to

admit the evidence, if subsequent developments support such

reconsideration. See Cummings v. Bahr,

(App. Div. 1996).

To be sure, we are mindful that DWI defendants commonly do

not "hang back" and save until the defense case at trial their

13 A-5535-12T4 competing witnesses and arguments challenging the prosecution's

BAC results. Such a strategy may pose risk, perhaps depriving

the defendant of a realistic chance to have the case dismissed

at the suppression stage. Even so, regardless of the trial

strategies that may bear on the actual flow of evidence, our

conceptual point is simple and unassailable: the court's

threshold decision to admit Alcotest results by clear-and-

convincing evidence does not always dictate how the court

ultimately will regard that same proof at the end of trial, when

a more rigorous standard of persuasion applies.9

We are not suggesting that courts will frequently admit BAC

results into evidence under the clear-and-convincing test, but

then conclude at the end of trial that such proof is inadequate

under the reasonable doubt standard. Frequency is not the

issue. Our point is that the two standards have different

functions at different phases of the case. Defendant's argument

9 It is also possible that the judge may harbor slight doubts when admitting the BAC results. Those doubts may not be enough to upset the clear-and-convincing burden but, if they persist and are reasonable, may cause the judge to acquit a defendant at the end of trial. Cf. N.J. Div. of Youth & Family Servs. v. R.D.,

(2011) (analogously recognizing the possibility that a trial judge's earlier finding of a defendant's abuse and neglect in a Title 9 proceeding does not preclude the judge from subsequently concluding that the evidence is insufficient to establish such abuse and neglect in a Title 30 guardianship trial, at which a more stringent burden of proof governs).

14 A-5535-12T4 incorrectly presumes that the admissibility ruling will always

control the guilt determination at the end.

For these reasons, we discern no constitutional flaw in the

evidential aspects that govern per se DWI cases prosecuted in

our State.10 The State will always bear in each prosecution the

burden of proving a defendant's guilt beyond a reasonable doubt.

The fact that a somewhat lower proof standard is used for

admitting the BAC results into evidence does not dilute that

ultimate burden.

Affirmed. Remanded for the imposition of sentence. We do

not retain jurisdiction.

10 Significantly, defendant cites no case from any other jurisdiction with a per se DWI statute that has adopted his novel argument.

15 A-5535-12T4