SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 15, 2004 -- Decided May 26, 2004
PER CURIAM
The issue before the Court is whether in a de novo appeal, a trial court may use a police officer’s observations to sustain a driving while intoxicated conviction even though the municipal court found the officer’s observations insufficient and convicted only on the basis of the Breathalyzer test results.
Shortly after 3:00 a.m. on March 24, 2001, Sadegh Kashi was driving southbound on the New Jersey Turnpike. He drove from the lane of travel onto the shoulder and struck the vehicle of Tomasso Grasso. Grasso had pulled over to the shoulder when his vehicle began to overheat.
Trooper Strassheim responded to the accident scene. He detected a strong odor of alcohol on Kashi’s breath. Kashi told the Trooper he may have fallen asleep. Trooper Strassheim performed several physical tests of Kashi at the scene. According to the Trooper’s testimony in municipal court, Kashi’s performance was unsatisfactory on each test. Kashi was placed under arrest and brought to the barracks. Two Breathalyzer tests revealed a blood alcohol level of .15 and .14.
Trooper Strassheim acknowledged in his testimony that he does not follow the approved procedures for operating the Breathalyzer machine. Specifically, he stated that he does not wait the required ninety seconds after the red light comes on during the purge phase to ensure the machine is purged of any residual alcohol. Dr. Saferstein, Kashi’s expert, prepared a report and testified that because of the Trooper’s failure to use the proper procedure, the test results were scientifically unreliable.
At the conclusion of the municipal court trial, the judge gave an oral opinion finding that the observations made by Trooper Strassheim and other witnesses were not sufficient in themselves to establish beyond a reasonable doubt that Kashi was driving while intoxicated. The municipal court judge then analyzed the balance of the testimony of the Trooper and Dr. Saferstein and concluded that the Breathalyzer tests were properly administered. The judge found Kashi guilty of driving while intoxicated and also concluded that he was guilty of reckless driving.
On Kashi’s de novo appeal to the Superior Court, Law Division, a somewhat different result obtained. The Superior Court judge concluded that the evidence established that Kashi 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.
Kashi appealed to the Superior Court, Appellate Division. In a unanimous opinion written by Judge Wefing, the Appellate Division held that because the testing procedure utilized by the Trooper on the Breathalyzer machine was incorrect, the test results were unreliable. 360 N.J. Super. 538 (2003). The Appellate Division, however, affirmed the Superior Court’s finding of guilt based on the Trooper’s observations of Kashi. In doing so, the Appellate Division rejected Kashi’s double jeopardy claim. Kashi argued that the Municipal Court judge’s finding that the arresting officer’s observations were insufficient for a conviction of driving while intoxicated constituted an acquittal on that charge. Kashi therefore claimed that the action of the Superior Court judge in finding him guilty on that basis was a violation of double jeopardy. The Appellate Division held that the essence of a trial de novo requires the Superior Court judge to make his own assessment of the sufficiency of the evidence contained within the record.
The Supreme Court granted Kashi’s petition for certification.
HELD: Double jeopardy is not implicated where the Superior Court, in a trial de novo, convicts on the charge of driving while intoxicated based on the evidence of the police officer’s observations even though the Municipal Court judge concluded that such evidence was insufficient.
1. The Court affirms substantially for the reasons expressed in the opinion of Judge Wefing. The Court agrees that N.J.S.A. 39:4-50(a) creates one offense that may be proved by alternative evidential methods, including the testimony of witnesses and the driver’s blood alcohol concentration. Thus, the Municipal Court judge’s finding that the police officer’s observations were insufficient to prove operation while under the influence did not constitute an acquittal. In conducting a de novo review, the Law Division has the opportunity to consider the matter anew. It must give due, but not necessarily controlling, regard to the opportunity of the municipal court to judge the credibility of the witnesses. Here, the Law Division differed with the findings of the municipal court based on the record, but did not challenge the municipal court’s credibility findings. The Court agrees that the record established beyond a reasonable doubt that Kashi was intoxicated when driving. Because the de novo review did not subject Kashi to a conviction after an acquittal, or to the possibility of a conviction of a more serious offense, or of an offense carrying a higher penalty, there is no double jeopardy or due process violation. The Court reaffirms its prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal.
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in this opinion.
SUPREME COURT OF NEW JERSEY
A- 25 September Term 2003
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SADEGH KASHI,
Defendant-Appellant.
Argued March 15, 2004 – Decided May 26, 2004
On certification to the Superior Court, Appellate Division, whose opinion is reported at
360 N.J. Super. 538 (2003).
Timothy G. Boney argued the cause for appellant.
Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan,
Middlesex County Prosecutor, attorney).
PER CURIAM
We granted defendant Sadegh Kashi’s petition for certification,
178 N.J. 30 (2003), to
consider whether in a de novo appeal, a trial court may use a
police officer’s observations to sustain a driving while intoxicated conviction even though the
municipal court found the officer’s observations insufficient and convicted defendant only on the
basis of Breathalyzer test results. The Appellate Division answered the question in the
affirmative and we agree. The judgment of the Appellate Division is therefore affirmed
substantially for the reasons expressed in the opinion of Judge Wefing. State v.
Kashi,
360 N.J. Super. 538 (2003). We add the following.
In State v. Hessen,
145 N.J. 441, 454-59 (1996), we addressed whether the
ban against plea bargaining for the offense of driving while under the influence
of liquor or drugs, N.J.S.A. 39:4-50(a), applied to a charge of “permitting” an
intoxicated person to drive one’s vehicle. In finding that the ban applied, we
stated that N.J.S.A. 39:4-50(a) includes four specific offenses:
[1] Operating a motor vehicle while under the influence of intoxicating liquor or drugs;
[2] Operating a motor vehicle with a blood alcohol concentration of 0.10% or more;
[3] Permitting another person who is under the influence of intoxicating liquor or drugs
to operate a motor vehicle which one owns or has in one’s custody
or control;
[4] Permitting another person with a blood alcohol concentration of 0.10% or more to
operate a motor vehicle which one owns or has in one’s custody or
control.
[Hessen, supra, 145 N.J. at 455.]
We no longer subscribe to the position that N.J.S.A. 39:4-50(a) describes four specific
offenses. Rather, we agree with the Appellate Division that N.J.S.A. 39:4-50(a) creates one
offense that may be proved by alternative evidential methods. Kashi, supra, 360 N.J.
Super. at 545. Our view is fortified by the sentencing provisions in N.J.S.A.
39:4-50(a), providing penalties for the “first offense,” “second violation,” and “third or subsequent
violation.” N.J.S.A. 39:4-50(a)(1)-(a)(3). The terms “first offense,” “second violation,” and “subsequent or third
violation,” refer to the single offense of driving while intoxicated set forth in
N.J.S.A. 39:4-50(a). Consequently, we hold that N.J.S.A. 39:4-50(a) is a unified offense under
which a defendant can be found guilty on alternate bases.
Defendant sought a de novo review in the Law Division, which “provides a
reviewing court with the opportunity to consider the matter anew, afresh [and] for
a second time.” In re Phillips,
117 N.J. 567, 578 (1990) (alteration in
the original) (internal quotations omitted). The court conducting a de novo review must
give due, but “not necessarily controlling, regard to the opportunity of the [municipal
court] to judge the credibility of the witnesses.” State v. Johnson,
42 N.J. 146, 157 (1964). Here, the Law Division on the de novo review differed
with the findings of the municipal court based on the record, but did
not challenge the municipal court’s credibility findings.
In reviewing the de novo proceeding, the Appellate Division concluded that the Law
Division fairly found that the evidence in the record established beyond a reasonable
doubt that defendant was intoxicated when driving. Kashi, supra, 360 N.J. Super. at
545-46. We agree with that conclusion. Further, because the de novo review did
not subject defendant to a conviction after an acquittal, or to the possibility
of conviction of a more serious offense, or of an offense carrying a
higher penalty, we find no double jeopardy or due process violation. See State
v. Widmaier,
157 N.J. 475, 489-90 (1999).
Lastly, we take this opportunity to reaffirm our prior policy decision that a
defendant convicted and sentenced in a municipal court may not be subjected to
a greater sentence on appeal. State v. De Bonis,
58 N.J. 182, 188-89
(1971).
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-25 SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SADEGH KASHI,
Defendant-Appellant.
DECIDED May 26, 2004
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST