NOT FOR PUBLICATION WITHOUT THE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