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 

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-

NOT FOR PUBLICATION WITHOUT THE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.

July 3, 2017
2 A-4518-15T2

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. 
3 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. 
4 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 
5 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 
6 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 
7 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 concerning 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 
8 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. 
9 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 [onehalf] hour period of time deemed reasonable in Samarel." The 

trial judge relied on our decision in State v. Samarel, 231 N.J. 
10 A-4518-15T2

Super. 134, 142-43 (App. Div. 1989), where we held a four and onehalf 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.
11 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. 
12 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 
13 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)).
14 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 
15 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-
16 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 
17 A-4518-15T2

smelled of alcohol. Defendant was unable to 

perform the walk and turn test and the oneleg 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.