STATE OF NEW JERSEY VS. DANIEL M. PAGE(15-043, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4518-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL M. PAGE,

Defendant-Appellant.
_______________________________

Submitted June 1, 2017 - Decided July 5, 2017

Before Judges Lihotz and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Municipal Appeal
No. 15-043.

Marshall, Bonus, Proetta & Oliver, attorneys
for appellant (Jeff Thakker, of counsel and
on the brief; Colin E. Bonus, on the brief).

Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Paula Jordao,
Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Daniel Page appeals from a May 9, 2016 order

adjudicating him guilty of failure to maintain lane N.J.S.A. 39:4-
88(b) and driving while intoxicated (DWI) N.J.S.A. 39:4-50. We

affirm.

On November 12, 2014, at approximately 11:55 p.m., Officer

George Jadue of the Mount Olive Township Police Department was

heading westbound on Route 46, when he observed a vehicle traveling

in the left lane jerk over the yellow line and back into its lane.

Officer Jadue continued to follow the vehicle and activated his

Motor Vehicle Recorder (MVR) to record the erratic driving before

effectuating a motor vehicle stop.

Upon encountering defendant in his vehicle, Officer Jadue

noticed his speech was slow and his eyes were "watery and

bloodshot." Officer Jadue asked if defendant had consumed anything

and defendant responded he consumed two beers at a bar. Officer

Jadue instructed defendant to exit his car to perform field

sobriety tests. The officer asked defendant if he would have

difficulty performing the tests, and defendant replied, "no, no,

no."

As Officer Jadue administered the sobriety tests, he noted

defendant's eyes were still bloodshot and watery, and he was unable

to maintain his balance. Defendant failed a heel-to-toe test and

lost his balance while turning around. Officer Jadue also

administered a one-leg stand test and defendant struggled to keep

his left foot raised and did not properly follow instructions.

2 A-4518-15T2
Officer Jadue noted defendant swayed and lifted his right arm over

six inches and still lost his balance.

Officer Jadue placed defendant under arrest for DWI and read

him his Miranda warnings. The officer testified he smelled an

odor of alcohol emanating from defendant during the field sobriety

tests, and when he placed defendant in the police vehicle, there

was an odor inside the vehicle.

Once at police headquarters, Officer Jadue obtained

defendant's consent to a breath test, but as the officer began

entering data into the Alcotest machine a "solution change" warning

was indicated. Thus, Officer Jadue transported defendant to the

New Jersey State Police barracks in Netcong, which had an Alcotest

machine. The officer and defendant arrived at the barracks at

1:33 a.m. There, Trooper Andrew Berwise operated the Alcotest

machine. The first machine "froze," and a second machine was

utilized to administer the breath test to defendant. During the

testing, Officer Jadue left defendant with Trooper Berwise to

contact his police department to report his location and status.

Trooper Berwise remained with defendant at all times and

observed him before and during administration of the Alcotest.

The Alcotest results yielded a blood alcohol concentration (BAC)

of .15 percent at 2:52 a.m. and 2:55 a.m.

3 A-4518-15T2
 On October 19, 2015, a trial occurred in the municipal court.

The State offered the testimony of Officer Jadue, Trooper Berwise

and Herbert Leckie, an expert in the administration of sobriety

tests. Defendant adduced expert testimony of Dr. Fuwaz Nesheiwat,

a podiatrist, to explain why defendant failed the field sobriety

tests. Defendant was convicted of DWI and failure to maintain his

lane of travel. He appealed and a trial de novo occurred in the

Law Division with the same outcome, resulting in the order he now

appeals.

Defendant contends the following:

I. THE CONFLICTING ACCOUNTS OF OFFICER JADUE
AND TROOPER BERWISE PRECLUDED A FINDING BY
"CLEAR AND CONVINCING EVIDENCE" THAT MR. PAGE
WAS OBSERVED FOR [TWENTY] MINUTES PRIOR TO THE
2:50 A.M. BREATH TEST; BECAUSE THE EVIDENCE
WAS NECESSARILY INSUFFICIENT, THIS COURT
SHOULD REVERSE AND REMAND, WITH A DIRECTIVE
TO THE LAW DIVISION TO SUPPRESS THE ALCOTEST
RESULTS AND DISMISS THE "PER SE" DWI CHARGE.

II. THE LAW DIVISION DID NOT ADDRESS THE
REASON FOR THE DELAY IN THE BREATH-TESTING;
MR. PAGE ESTABLISHED REASONABLE DOUBT UNDER
STATE V. TISCHIO, THEREBY MANDATING ACQUITTAL
ON THE "PER SE" DWI CHARGE.

III. HAVING PREVIOUSLY GRANTED HOLUP RELIEF,
IT WAS AN ABUSE OF DISCRETION TO DENY
DISCOVERY ON THE ALCOTEST MACHINE(S); THIS
COURT SHOULD REVERSE THE ERRONEOUS DISPOSITION
OF MR. PAGE'S RIGHT TO COURT-ORDERED
DISCOVERY.

IV. A MUNICIPAL COURT CANNOT HEAR THE DEFENSE
UNLESS AND UNTIL THE STATE HAS CONCLUDED ITS

4 A-4518-15T2
 CASE AND THE DEFENSE HAS [BEEN] GIVEN A CHANCE
TO RAISE APPROPRIATE MOTIONS; THE PROCEEDINGS
BELOW ARE A NULLITY AS THE MUNICIPAL COURT
DISPENSED WITH THE PRESUMPTION OF MR. PAGE'S
INNOCENCE.

V. THE LAW DIVISION'S FINDINGS ON MR. PAGE'S
"INTOXICATION" AND LANE-MAINTENANCE ARE
INSUFFICIENT; SINCE THERE WAS REASONABLE
DOUBT, HIS OBSERVATION-BASED CONVICTIONS (FOR
FAILURE TO MAINTAIN LANE AND DWI) SHOULD BE
REVERSED.

We begin by reciting our scope of review. 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 pursuant to Rule 3:23-8(a)(2), 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, when issues on appeal turn on purely legal

determinations, our review is plenary. State v. Adubato, 420 N.J.

Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430

(2012). We do not "weigh the evidence, assess the credibility of

witnesses, or make conclusions about the evidence." State v.

Barone, 147 N.J. 599, 615 (1997). We defer to the trial court's

5 A-4518-15T2
credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383

(App. Div. 2000).

I.

Defendant argues the accounts of Officer Jadue and Trooper

Berwise conflicted to a degree there was insufficient evidence for

the trial judge to conclude clearly and convincingly defendant was

observed for the requisite twenty minutes necessary for the

Alcotest results to be valid. We disagree.

The Supreme Court has held the valid results of an Alcotest

to be "generally scientifically reliable" to support a per se

violation of driving while intoxicated. State v. Chun, 194 N.J.

54, 65, cert. denied, Chun v. New Jersey, 555 U.S. 825, 129 S. Ct.

158, 172 L. Ed. 2d 41 (2008). The State must show "(1) the

[Alcotest] 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.

The results of the test and adherence to appropriate procedure

must be proven "by clear and convincing proof." State v. Campbell,

436 N.J. Super. 264, 270 (2014). The State may meet its burden

by testimony from the operator of the machine that in the twenty

minutes preceding the test the subject did not "ingest, regurgitate

or place anything in his or her mouth that may compromise the

6 A-4518-15T2
reliability of the test results." State v. Ugrovics, 410 N.J.

Super. 482, 489-90 (App. Div. 2009). The operator of the Alcotest

machine must "observe the test subject for the required twenty

minute period of time to ensure that no alcohol has entered the

person's mouth while he or she is awaiting the start of the testing

sequence." Chun, supra, 194 N.J. at 79, cert. denied, 555 U.S.

825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

Here, the trial judge addressed and rejected defendant's

claim the testimony of the officer and the trooper conflicted.

The judge stated:

In the case at bar, Trooper Berwise gave
credible testimony that he continuously
observed defendant for twenty minutes prior
to administering the Alcotest. Contrary to
defendant's assertion, the testimony concern-
ing the twenty-minute observation period, by
both Trooper Berwise and Officer Jadue, was
not contradictory. Officer Jadue testified
the trooper was with defendant the whole time.
In the [twenty-minute] period prior to
administering the Alcotest, Trooper Berwise
also made sure that defendant did not have any
objects in his mouth and that defendant did
not burp, hiccup, or do anything to
contaminate the breath sample.

The transcripts of each officer's testimony do not

demonstrate any contradiction and support the trial judge's

conclusion. Officer Jadue testified he began the initial

observation period when the first machine froze and then left

defendant with Trooper Berwise to contact police headquarters and

7 A-4518-15T2
clearly stated: "The trooper was there the entire time, because

the room was open." Likewise, Trooper Berwise's testimony was the

same:

Q And you mentioned the [twenty-minute]
observation period. Did you conduct that, uh,
observation period?

A Yes.

The trial judge's findings are clearly supported by

substantial and credible evidence in the record. Defendant's

conviction for DWI on a per se basis based on the Alcotest results

is affirmed.

II.

Defendant challenges his conviction by asserting the trial

judge did not address the reason for the delay in administering

the Alcotest. We find this argument unavailing.

Our Supreme Court has held breath tests "must be taken 'within

a reasonable time' after the arrest." State v. Tischio, 107 N.J.

504, 521 (1987). "[P]roof of operation of a motor vehicle, coupled

with a blood alcohol level of .10% or greater taken from a breath

or blood test administered within a reasonable period of time

after operation constitutes a per se violation of the statute."

State v. Snyder, 337 N.J. Super. 59, 65 (App. Div. 2001). There

is no bright line limitation for administering the test after

arrest. See State v. Dannemiller, 229 N.J. Super. 187, 189 (App.

8 A-4518-15T2
Div. 1988). The purpose of the reasonable time period requirement

is to prevent "prolonged detention of a motorist by the police in

the mistaken belief that the blood-alcohol level would then produce

a result more favorable to the State." Id. at 190. Thus, each

case is reviewed "on an individual basis to determine whether the

motorist's rights have been violated by undue delay" or a "reason

to doubt" the validity of the test results. Ibid.

Defendant argues the State did not explain the reasonableness

for the delay in administering the Alcotest and when two Alcotest

machines failed to function, he should have been offered a blood

test as an alternative. See N.J.S.A. 39:4-50.2(c) (providing

police may make an independent test available to a defendant) see

also State v. Hicks, 228 N.J. Super. 541, 549-50 (App. Div. 1988),

certif. denied, 127 N.J. 324 (1990).

Defendant does not claim prejudice or violations of his rights

resulted from the delay in administering the test. Instead, he

asserts the State has not provided a reason for the delay, making

it unreasonable.

The trial judge properly concluded the delay was reasonable

because the test "was administered less than three hours after

[d]efendant was stopped, which is less than the four and [one-

half] hour period of time deemed reasonable in Samarel." The

trial judge relied on our decision in State v. Samarel, 231 N.J.

9 A-4518-15T2
Super. 134, 142-43 (App. Div. 1989), where we held a four and one-

half hour delay between arrest and the breath test reasonable,

because the defendant failed to demonstrate a prejudice by virtue

of the delay. Similarly, the trial judge here noted "defendant

has not demonstrated that he was prejudiced by the lapse of time

or that his detention was unduly prolonged."

The testimony of Officer Jadue and Trooper Berwise supports

the trial judge's conclusion the delay was borne of good faith

difficulties, namely, two malfunctioning Alcotest machines located

in two different locations. Indeed, not only was defendant driven

to Mount Olive police headquarters and then transported to the

State Police barracks in Netcong, occasioning the delay, the

mandated twenty-minute observance preceding the valid Alcotest

added to the delay. These difficulties do not support a narrative

of a motive to delay to produce a favorable Alcotest result.

The evidence supports the trial judge's conclusions the delay

was reasonable and the absence of a corresponding prejudice to

defendant. We find no reason to disturb the trial judge's finding.

III.

Defendant argues the court abused its discretion by denying

his motion to compel discovery regarding the Alcotest machines.

We find little merit in this claim.

10 A-4518-15T2
 "[T]he liberal approach to discovery in criminal cases is

applicable in municipal court cases." State v. Stein, 225 N.J.

582, 594 (2016). A defendant, "on written notice to the municipal

prosecutor . . . shall be provided with copies of all relevant

material. . . ." R. 7:7-7(b). "In all cases in which an Alcotest

device is used, any Alcotest data shall, upon request, be provided

for any Alcotest 7110 relevant to a particular defendant's case

in a readable digital database format generally available to

consumers in the open market." R. 7:7-7(g).

"Discovery in a municipal court case, like in a criminal

case, 'is appropriate if it will lead to relevant' information."

Stein, supra, 225 N.J. at 596 (quoting State v. Hernandez, 225

N.J. 451, 462 (2016)). Evidence is relevant if it has "a tendency

in reason to prove or disprove any fact of consequence to the

determination of the action." N.J.R.E. 401.

Here, the trial judge noted:

In this case during the first day of trial
[the municipal judge] denied defendant's
motion to compel discovery on a machine at the
Netcong station that was not used to obtain a
breath sample from the defendant due to the
lack of testimony "as to how it might be
relevant and probative."

He concluded there was no basis for the discovery sought by

defendant because the State had provided everything related to the

breath test reading actually utilized at trial.

11 A-4518-15T2
 We see no reason to question the trial judge's findings. Any

evidence relating to the other machines the officers attempted to

use would not help prove or disprove whether defendant drove under

the influence of alcohol on the night of his arrest. No evidence

suggests any other tests were completed, except for the test

utilized by the State at trial, for which the State provided all

discovery. Even though defendant claims the discovery was

necessary because the reasons for the delay in the testing "have

never been established," as we noted in the preceding section,

there is ample evidence in the record explaining the reasons for

the delay. In light of defendant's failure to demonstrate how he

was prejudiced by the delay, the discovery regarding the other

Alcotest machines was tenuous and irrelevant because it had no

impact on the .15 percent BAC reading and per se DWI violation.

IV.

Defendant argues the court inappropriately allowed a defense

witness to testify before the prosecution rested, thus depriving

him of a presumption of innocence and due process. The State

points out defendant did not object to this trial procedure at the

time and is barred from raising it on appeal.

The trial judge recounted his review of the trial transcript,

noting Trooper Berwise was not in court at the beginning of the

trial session, but had been contacted by the prosecutor and was

12 A-4518-15T2
en route to court. The trial judge noted defendant had ready

witnesses and volunteered to take at least one out of order,

namely, his expert witness. The trial judge concluded the trial

procedure was valid because the municipal court judge had authority

to call witnesses out of order. See N.J.R.E. 611(a). The trial

judge also relied upon Rule 1:7-2, noting defendant did not object.

Counsel volunteering to present his witness out of order

triggers the doctrine of invited error. Rule 1:7-2 states:

For the purpose of reserving questions for
review or appeal relating to rulings or orders
of the court or instructions to the jury, a
party, at the time the ruling or order is made
or sought, shall make known to the court
specifically the action which the party
desires the court to take or the party's
objection to the action taken and the grounds
therefor. . . . A party shall only be
prejudiced by the absence of an objection if
there was an opportunity to object to a
ruling, order or charge.

The invited error doctrine bars a litigant from taking a

position on appeal contrary to a position advanced in the trial

court. State v. Pontery, 19 N.J. 457, 471 (1955). "'Elementary

justice in reviewing the action of a trial [judge] requires that

[the] court should not be reversed for an error committed at the

instance of [the] party alleging it.'" State v. Scioscia, 200

N.J. Super. 28, 47 (App. Div. 1985) (alterations in original)

(quoting Bahrey v. Poniatishin, 95 N.J.L. 128, 133 (E & A. 1920)).

13 A-4518-15T2
 It is clear neither the prosecutor nor the court suggested

or compelled the defense to call its witnesses first. We can

understand the reasonable decision of defense counsel to take an

expert witness out of order given the monetary and time costs

incurred associated with an idle expert witness. For these

reasons, we reject defendant's argument he was deprived of his

constitutional rights.

V.

Defendant asserts there was insufficient evidence to find him

guilty beyond a reasonable doubt of DWI or failure to maintain his

lane. He claims, "the municipal court did not make meaningful

credibility determinations, as such fact-finding could not have

resulted in a DWI conviction" and again cites to allegedly

contradictory testimony by Officer Jadue and Trooper Berwise.

Also, relying on State v. Woodruff, 403 N.J. Super. 620 (Law Div.

2008), defendant contends the State failed to prove failure to

maintain lane, arguing there was reasonable doubt as to "how

practicably the road could or should have been negotiated" because

Officer Jadue and defendant drove a distance before pulling over

and the trial judge made no findings about the road conditions.

Given our limited scope of review of credibility

determinations and findings of fact by a trial court, we reject

14 A-4518-15T2
these arguments because the record before us demonstrates the

findings were based on substantial credible evidence.

Regarding the DWI charge, the Law Division quoted the

municipal court's findings:

Based on the officer's credible testimony as
to his observations and the video tape, I am
finding the defendant first guilty of failing
to maintain lane, from going to the shoulder
of the road, crossing over the solid line, and
then coming to the right side, uh, dotted
lines on Route 46 and going back and forth at
least once - if not twice - and, in the court's
judgment beyond - there's proof beyond a
reasonable doubt the defendant did not
properly maintain his lane on Route 46 on
November 12, 2014.

The Law Division then said: "After reviewing the entire record,

this court finds the testimony at trial by Officer Jadue, in

combination with the S-2 evidence, the MVR, is sufficient to find

that defendant beyond a reasonable doubt is guilty of failure to

maintain lane."

These findings were clearly sufficient to meet the statutory

definition for the conviction under N.J.S.A. 39:4-88(b), requiring

"[a] vehicle shall be driven as nearly as practicable entirely

within a single lane." Moreover, defendant's assertion the trial

judge did not consider the road conditions is rebutted by the

judge recounting his review of the MVR, which corroborates Officer

Jadue's testimony stating he traveled "at least a mile and [one-

15 A-4518-15T2
half] to two miles" behind defendant's vehicle before stopping

him. Defendant does not point us to evidence either overlooked

or misinterpreted by the trial judge relating to the road

conditions.

Defendant also argues the State has not proven DWI beyond a

reasonable doubt because the trial judge could not determine

credibility from the municipal court transcripts. He also claims

the municipal court "misunderstood" the testimony of defendant's

expert as meaning defendant could not walk or stand rather than

perform the field sobriety tests.

As noted above, the trial judge found defendant guilty of DWI

making findings of guilt for a per se violation as well as on

observational evidence. He stated:

There is sufficient evidence in the record to
convict the defendant of driving while
intoxicated; both as a per se and observation
violation. At the outset it should be noted
that there is no dispute over whether the
defendant was operating a motor vehicle at the
time of his arrest. Moreover, the State
submitted foundational documents required
under Chun. Therefore, in light of
defendant's .15 percent BAC reading from the
Alcotest sample, there is sufficient evidence
to find a per se violation of the statute.

However, even if this court had suppressed the
Alcotest reading, as the defendant asked, the
testimony would have been sufficient to
convict the defendant based on officer
observation. Officer Jadue testified that the
defendant had watery bloodshot eyes and

16 A-4518-15T2
 smelled of alcohol. Defendant was unable to
perform the walk and turn test and the one-
leg stand test in accordance with Officer
Jadue's instructions. In addition defendant
told Officer Jadue that he had consumed at
least two beers. Moreover, defendant's
vehicle failed to maintain its lane.
Consequently, the testimony sufficiently
supports finding that the defendant's mental
faculties and physical capabilities were
substantially deteriorated while he was
operating his vehicle. Considering the
totality of all the evidence; based on the
credible testimony regarding defendant's
driving by Officer Jadue, the observations
made by Officer Jadue; defendant's performance
on the field sobriety tests, and defendant's
admission to consuming alcohol, this court
finds that defendant may also be found guilty
under [the] observation standard.

Contrary to defendant's argument, we see no error in the

trial judge's credibility determinations or inconsistency between

the testimony of Officer Jadue and Trooper Berwise. Also, we do

not see evidence the court misunderstood the testimony of

defendant's expert witness. The evidence relied upon by the trial

court supports its conclusion. Defendant violated N.J.S.A. 39:4-

50.

Affirmed.

17 A-4518-15T2