NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5958-07T45958-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEOFFREY POLLOCK,

Defendant-Appellant.

________________________________

Submitted April 1, 2009 - Decided

Before Judges Stern, Waugh and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Municipal Appeal No. L-210-08.

Law Offices of Paul H. Scull, Jr., attorneys for appellant (Paul H. Scull, Jr., on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

WAUGH, J.A.D.

Defendant Geoffrey A. Pollock appeals his conviction for a per se violation of N.J.S.A. 39:4-50, driving with a blood alcohol concentration of 0.08 percent or more. In this appeal, we are called upon to determine whether the semiannual-recalibration requirement for Alcotest machines, established by the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed.2d 41 (2008), is applicable to cases in which the test was administered prior to Chun and in compliance with the then existing annual-recalibration protocol. Because we determine that the change mandated by Chun was not intended to be applied to pending cases, we affirm Pollock's conviction.

I

Pollock was arrested on February 16, 2008, in Carney's Point. He was charged with driving while under the influence of alcohol, N.J.S.A. 39:4-50, and other offenses not relevant on this appeal. He was administered a breath test to determine his blood alcohol content using the Alcotest 7110 MKIII-C (Alcotest) machine. The resulting Alcohol Influence Report (AIR) determined that his blood alcohol content was 0.17 percent. The Alcotest machine used for Pollock's test had been recalibrated approximately seven months earlier, which was consistent with the then existing protocol established by the State.

On March 17, 2008, the Supreme Court issued its decision in Chun, which generally upheld the reliability and admissibility of Alcotest results, subject to certain modifications and conditions. The Court included a requirement that the Alcotest machine be recalibrated semiannually, rather than annually. Chun, supra, 194 N.J. at 123.

Pollock then filed a motion in the Carney's Point Municipal Court, seeking to exclude his AIR report on the grounds that the machine had not been recalibrated within the six-month period prior to the date of his test as required by Chun. On April 25, 2008, the municipal court judge held a hearing pursuant to N.J.R.E. 104 and determined that the semiannual-recalibration requirement in Chun was not applicable to cases in which the test had been administered prior to Chun. After the judge denied his motion, Pollock entered a conditional guilty plea, R. 7:6-2(c), to a per se violation of N.J.S.A. 39:4-50, based on the 0.17 percent reading from the AIR report.

Pollock then appealed his conviction to the Law Division in Salem County, again arguing that Chun's semiannual-recalibration requirement was applicable retroactively. On June 13, 2008, Judge William L. Forester heard the matter de novo on the municipal court record. R. 3:23-8. Judge Forester delivered an oral decision on July 25, 2008, concluding that the new recalibration requirement was prospective only and convicting Pollock of violating N.J.S.A. 39:4-50. He signed the resulting order on August 1, 2008, but stayed the sentence and driver's license suspension until August 15, 2008. This appeal followed.

II

On appeal, Pollock again contends that his AIR report was inadmissible because the Alcotest machine used to analyze his breath samples had not been recalibrated during the prior six months as required by Chun. In support of his position, he argues that retroactive application is required by Chun itself and also by the general principles used to determine whether a new rule in criminal cases is given prospective or retroactive application.

Before turning to the specific issue of retroactivity, we must explore the Supreme Court's reasons for changing the recalibration protocol. The Supreme Court stated its overall conclusion in Chun, supra, 194 N.J. at 65, as follows:

In summary, we conclude that the Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but that certain modifications are required in order to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. Some of these conditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain