State v. Kashi

• Decision Date: 05 June 2003
• Citation: 360 N.J. Super. 538,823 A.2d 883
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Sadegh KASHI, Defendant-Appellant.
• Court: New Jersey Superior Court

823 A.2d 883

360 N.J. Super. 538

STATE of New Jersey, Plaintiff-Respondent, v. Sadegh KASHI, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued April 30, 2003.

Decided June 5, 2003.

Timothy G. Boney, argued the cause for appellant.

Simon Louis Rosenbach, Assistant Middlesex County Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

Before Judges KING, WEFING and LISA.

The opinion of the court was delivered by WEFING, J.A.D.

Defendant received summonses for reckless driving, N.J.S.A. 39:4-96; driving while under the influence, N.J.S.A. 39:4-50; and an amended charge of failing to produce proof of insurance, N.J.S.A. 39:6B-2. He appeared in municipal court and was found guilty of all three charges. He appealed to Superior Court, Law Division, where he challenged the first two convictions. After a trial de novo, he was acquitted of reckless driving but again found guilty of driving while under the influence. This was defendant's second such conviction and the court suspended defendant's license for two years, sentenced him to perform thirty days of community service and forty-eight hours in the IDRC; appropriate fines and penalties were also assessed. He appeals and we affirm.

Shortly after 3:00 a.m. on March 24, 2001, Tomasso Grasso was driving southbound on the New Jersey Turnpike when his car, a 1995 BMW, began to overheat. Grasso steered his car from the left lane in which he had been driving to the shoulder. Grasso turned off the engine and got out of the vehicle. Defendant was also driving southbound on the Turnpike; he drove from the lane of travel onto the shoulder and into Grasso's car, which sustained more than $30,000 in damages. Grasso said the two men spoke briefly but he did not understand what defendant said. Defendant returned to his car and sat.

Police responded to the accident scene, including State Trooper Daniel Strassheim. Trooper Strassheim detected a strong odor of alcohol on defendant's breath. Defendant told Trooper Strassheim he may have fallen asleep. Defendant said he had been to dinner in New York City and had consumed several glasses of wine.

Trooper Strassheim performed several physical tests at the roadside, including the horizontal gaze nystagmus test, a balance test, and a test of defendant's ability to walk heel to toe.¹ Defendant's performance was unsatisfactory on each. The trooper then advised defendant he was under arrest for driving while under the influence of alcohol and advised him of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Trooper Strassheim then took defendant to the barracks, where he administered two Breathalyzer tests, the results of which were .15 and .14.

Three witnesses testified at the municipal court trial: Mr. Grasso and Trooper Strassheim for the prosecution, Dr. Richard Saferstein for the defense. Trooper Strassheim testified in detail as to his operation of the Breathalyzer machine, a Model 900. He said he called the barracks from the accident scene to ask that the machine be turned on, so that it would be ready when they arrived but admitted he did not know when the machine was turned on. When they arrived at the barracks, Trooper Strassheim turned off the machine and turned it on again to go through the necessary steps before administering the test.

These steps are set forth at N.J.A.C. 13:51 App. There are three phases: preparation phase, purge phase and analysis phase. After completing all the steps in the preparation phase, the operator must complete the four steps in the purge phase. The operator must first turn the control knob to the "Take" position, flush the machine and turn the control knob to the "Analyze" position. The operator must then determine that the machine is purged of any residual alcohol. Proper procedure calls for the operator to note when the red empty signal comes on, and then wait ninety seconds and observe the light turned on. The operator then proceeds with the balance of the test. Proper procedure calls for a similar ninety-second wait after the red signal comes on when administering the second test. Trooper Strassheim, however, clearly testified that he never utilizes the red light signal during the purge phase, either before the first test or the second test, but determines himself when the sample has been released from the chamber and then waits an additional minute and one-half.

Trooper Strassheim also produced the certifications for the testing that was performed on this particular Breathalyzer to assure its accuracy. N.J.A.C. 13:51-4.3. The machine was tested on March 14, 2001, ten days before the incident in question and found to be in proper working order. It was tested again on May 17, 2001, nearly two months after the incident at which time it was determined that the thermometer was not working properly; the machine was taken out of service to be repaired.

Defendant's expert, Dr. Saferstein, had prepared a report that the subsequent problem with the machine's thermometer made it impossible to determine that it was working properly when defendant was tested and he testified to that effect. Dr. Saferstein was present in the courtroom during the testimony of Trooper Strassheim. Based on that testimony, Dr. Saferstein also expressed the opinion that the trooper had not administered the tests correctly and thus the results obtained were scientifically unreliable.

At the conclusion of the municipal court trial, the municipal court judge gave an oral opinion in which he first found that the "observations" made by Trooper Strassheim and Mr. Grasso were not sufficient in themselves to establish beyond a reasonable doubt that defendant was driving while intoxicated. He then analyzed the balance of the testimony offered by Trooper Strassheim and Dr. Saferstein and concluded that the Breathalyzer tests were properly administered and found defendant guilty of driving while intoxicated. He also concluded that defendant had been guilty of reckless driving.

On defendant's appeal to Superior Court, Law Division, a somewhat different result obtained. The Superior Court judge, after reviewing the transcript of the municipal court trial, concluded that the evidence established that defendant was guilty of driving while intoxicated, not only on the basis of the Breathalyzer readings but also on the basis of the physical observations and the roadside tests performed by Trooper Strassheim.

Defendant raises five arguments on appeal. He first maintains that he could not be found guilty of driving while intoxicated based upon the results of the Breathalyzer test because of the uncertainty whether the machine was operating properly on the date in question and because the testing procedure which was utilized was incorrect. We reject the first portion of the argument and agree with the second.

Dr. Saferstein candidly admitted during his cross-examination that he could do no more than speculate that the thermometer was not functioning correctly on March 24, 2001. Trooper Strassheim testified that he monitored the temperature of the machine during the test procedure. Speculation is not a sufficient basis to conclude that the test machine was not working properly on March 24, 2001.

We agree, however, that the trooper's testimony clearly establishes that he did not follow the correct procedures during the actual administration of the tests themselves. His failure to utilize the red signal before counting ninety seconds makes it impossible to determine that the machine was indeed purged of residual alcohol, the presence of which could taint the results obtained. A conviction of driving while intoxicated requires proof beyond a reasonable doubt. State v. DiSomma, 262 N.J.Super. 375, 380, 621 A. 2d 55 (App.Div.1993). Such a substantial facial flaw in...