SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2901- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. KRISTIN E. LOPEZ, Defendant-Appellant.

___________________________

Argued April 30, 2024

– Decided May 15, 2024 Before Judges Mayer and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 22

- 0015. Evan M. Levow argued the cause for appellant (Levow DWI L aw , PC, attorneys; Evan M. Levow, of counsel and on the brief; Keith G. Napolitano Jr., on the b rief). Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cau se for respondent (Theodore N. Stephens, II, Acting Es sex County Prosecutor, attorney; Stephen A. Pogany, on the brief). NOT FOR PUBLICATION WITHOUT THE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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2901

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PER CURIAM Defendant Kristin E. Lopez appeals from a May 11, 2023 order, after Law Division Judge Arthur J. Batista conducted a de novo review, affirming a September 30, 2022 order issued by the Cedar Grove municipal court judge , finding defendant guilty of driving while intoxicat ed (D WI ) , N.J.S.A. 39:4- 50. We affirm for the reasons expressed by Judge Batist a in his cogent written decision. We briefly summarize the facts based on the Law Di vision hearing transcript and Judge Batista's May 11, 2023 written opinion. Defendant appeared in Cedar Grove municipal court a s a result of citations charging her with DWI and numerous other motor vehi cle violations. The municipal court judge conducted a R ule 104 hearing over the course of two days to address, in part, the admissibility of the Alcot est results. New Jersey State Police Trooper Francisco Hurtado, a certified Alcot est operator, instructor and coordinator for Union, Essex and Hudson counties an d Cedar Grove Police Captain Francis Pumphrey testified. Together with other exhibits, the municipal court judge admitted the Alcohol Influence Report ( AIR) into evidence. Based upon the testimony of Trooper Hurtado and Captain P umphrey and the exhibits admitted as evidence, the municipal co urt judge found the Alcotest3 A- 2901

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results were admissible subject to the admission of other foundational documents. After the municipal court judge's evidentiary rulin g , defendant entered a conditional guilty plea to DWI. The remaining moto r vehicle violations were dismissed pursuant to the negotiated plea. Defenda nt was sentenced to fines and assessments, license forfeiture for four months, tw elve hours at the Intoxicated Driver Resource Center (IDRC), and nine months of i gnition interlock device (IID) 1 following completion of the license forfeiture pen alty. Defendant appealed to the Law Division, challengin g in relevant part, the admissibility of the AIR. After reviewing the parties' briefs and hearing ora l argument, in May 2023, Judge Batista issued a thorough written opini on finding defendant guilty of DWI and affirming the sentence imposed by the municipal

court judge

. This appeal followed. On appeal, defendant raises the following issue:

SINCE THE ALCOHOL INFLUENCE REPORT IS REPORTING THE RESULTS OF THE BREATH TEST PRIOR TO THE COMPLETION OF THE TEST, THE A.I.R. SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

1 An IID is a "blood alcohol equivalence measuring device which will prevent a motor vehicle from starting if the operator's blo od alcohol concentration exceeds a predetermined level when the operator blo ws into the device." N.J.S.A. 39:4-50.17.4 A- 2901

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Our "review of a municipal appeal to the Law Divis ion is limited to 'the action of the [Law Division] and not that of the mu nicipal court.'" State v. Palma, 219 N.J. 584, 591-92 (2014) (quoting State v . Joas, 34 N.J. 179, 184 (1961)). In reviewing a trial judge's de novo deci sion on a municipal appeal , our review is limited to "determin[ing] whether suf ficient credible evidence in the record supports the Law Division's decision." State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016). " 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). "However, where issues on appeal turn on purely legal determinations, our review is plenary. " Monaco, 444 N.J. Super. at 549 (citing State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011)). In her appeal, defendant contests the admissibilit y of the AIR, alleging the "Alcotest data download" reports the breath test re sults prior to the completion of the test and therefore the test is incorrect. W hile not challenging the scientific reliability of the Alcotest machine, defendant chal lenges the reporting of the machine's results in the AIR. As noted by Judge Batista, defendant "relies upon the Special Master's report in State v. Chun[ , 194 N.J. 54 (2008)] wherein it provides, '[i]f any of the categories of data field s in the AIR are incomplete in any respect . . . no part of the AIR can be used by the State for purposes of5 A- 2901

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finding guilt. A BAC 2 finding of .08 or above in such circumstance may n ot be admitted into evidence.'" 3 (second alteration in original) (emphasis omitted ). Further, defendant asserts that because the AIR doe s not contain the stop time for the breath samples, the AIR is incomplete and t hus not admissible. However, none of the Special Master's detailed recommendatio ns, as adopted by the New Jersey Supreme Court in Chun, 194 N.J. at 150

- 54 , specifically required the AIR to record the start and stop times of the breath sa mple. We note defendant failed to include a copy of the AIR in her appendix. Therefore, we are unable to fully evaluate defendan t's arguments regarding the AIR's admissibility

. Having reviewed the record , Judge Bati sta appropriately delineated the admissibility standards for Alcotest results enunci ated by the Court in Chun; namely, the Alcotest results are admissible if "(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) ).

2 BAC refers to an individual's blood alcohol content

.
3 We quote verbatim from Judge Batista's opinion wh ich refers to the Special Master's report in Chun, 194 N.J. 54 (2008 ).6 A- 2901

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Relying on Trooper Hurtado's testimony , Judge Batista was not persuaded that the test results were "incomplete. " Defendant argues that because the results of the Alcotest are calculated at the end time, the AIR is misleading by only including the start time and is therefore factually incorrect. However, a s Trooper Hurtado explained , while only the start time is reported on the AIR , the end time can be seen on the digital data download. As a result , Trooper Hurtado confirmed that the anomaly alleged by defendant doe s not impugn the integrity of the AIR, nor do es it result in an inaccurate BAC reading. As Judge Batista correctly noted, the record is vo id of evidence supporting defendant's "notional proposition" that the AIR was incomplete because it did not reflect the stop time of the breath sample. Defendant called no witnesses to support this theory; nor did she offer any legal su pport for her argument. Despite failing to offer evidence to establish a nexus betw een the lack of a stop time of the breath sample and the reliability or functional ity of the Alcotest, defendant argues the incompleteness of the AIR, on its face, render s it inadmissible. Such a conclusion, as Judge Batista noted, would have fa r reaching consequences beyond defendant's case. We further agree with Jud ge Batista's conclusion "such a momentous result given the extreme paucity of evidence supporting [defendant's] abstract position" must fail.7 A- 2901

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Based upon Judge Batista's review of the testimony of Trooper Hurtado and Captain Pumphrey and the evidence admitted duri ng the Rule 104 hearing, Judge Batista correctly concluded the Alcotest devi ce for defendant's sample was in working order, was inspected before the proc edure, the operator was certified, and the test was properly administered. We are satisfied there is sufficient credible evidence in the record to suppo rt the Law Division judge's decision. To the extent we may not have addressed any of defe ndant's remaining arguments, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(2). Affirmed.