NOT FOR PUBLICATION WITHOUT THE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, 107
N.J. 504, 506 (1987); see also State v. D'Agostino, 203 N.J.
Super. 69, 73 (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, 391 N.J.
Super. 352, 384 (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, 187 N.J.
574, 588-89 (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. Tischio, supra, 107 N.J. at 506
(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." Ibid.
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, 383 N.J. Super. 538, 548
(App. Div.) (citing State v. Dively, 92 N.J. 573, 585 (1983);
State v. Di Carlo, 67 N.J. 321, 327 (1975); State v. Emery, 27
N.J. 348, 353 (1958)), certif. denied, 187 N.J. 80 (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, 190 N.J. 397, 470
(2007) (quoting State v. Medina, 147 N.J. 43, 61 (1996), cert.
denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688
(1997)). "Proof beyond a reasonable doubt is proof, for
example, that leaves [the fact-finder] firmly convinced of the
defendant's guilt." Ibid. (quoting Medina, supra, 147 N.J. at
61). "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." Ibid. (quoting Medina, supra, 147 N.J. at 61); 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, 194 N.J. 54 (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." Id. at 148. 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." Id. at 134 (citing Romano v.
Kimmelman, 96 N.J. 66, 81 (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 Romano, supra, 96 N.J. at 89-
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, 217 N.J. 22, 46 (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, 410 N.J. Super. 482, 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 Romano,
supra, 96 N.J. at 90-91).
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, 55 N.J.
Super. 598 (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, 107 N.J. Super. 383, 388 (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 Chun, supra, 194 N.J.
at 79. 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, 295 N.J. Super. 374,
384-88 (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., 207 N.J. 88 (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