                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3797-13T4

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                 February 27, 2015

v.                                       APPELLATE DIVISION

GALE SORENSEN,

     Defendant-Respondent.
________________________________

         Argued December 15, 2014 – Decided February 27, 2015

         Before Judges Sabatino, Simonelli and Leone.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,    Morris County,
         Municipal Appeal No. 12-098-W.

         Paula Jordao, Assistant Prosecutor, argued
         the cause for appellant (Fredric M. Knapp,
         Morris County Prosecutor, attorney; Ms.
         Jordao, on the briefs).

         Greggory M. Marootian argued the cause for
         respondent.

     The opinion of the court was delivered by

LEONE, J.A.D.

     In the Municipal Court, defendant Gale Sorensen entered a

conditional plea of guilty to driving while intoxicated (DWI)

with a blood alcohol content (BAC) of 0.12%.          N.J.S.A. 39:4-

50(a)(1)(ii).    She appealed, and the Law Division suppressed the
Alcohol Influence Report (AIR) because the Alcotest operator did

not   provide    a     copy     of       the    AIR       to    defendant         at      the    police

station,    as   mentioned        in      State       v.       Chun,    194       N.J.     54,      cert.

denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

The State appeals.              We reject defendant's argument that the

State's appeal is barred by double jeopardy.                                We reverse the Law

Division's suppression order and remand to the Municipal Court.

                                                I.

      New   Jersey's       statute         barring             driving      while        intoxicated

penalizes "operat[ing] a motor vehicle while under the influence

of intoxicating liquor," which is usually proven by observation

of the person driving (an observation violation), and operating

a   motor   vehicle        with      a    BAC     of       0.08%       or     more       (a     per     se

violation).            N.J.S.A.          39:4-50(a).                 For      a     first-offense

observation violation, a person is subject to a fine of $250 to

$400,     detainment       for       twelve          to        forty-eight         hours         in     an

Intoxicated Driver Resource Center (IDRC) program, a term of

imprisonment      of      not    more      than       thirty         days,        and     a     license

suspension of three months.                    N.J.S.A. 39:4-50(a)(1)(i).                       A first

offender who "operates a motor vehicle with a blood alcohol

concentration        of   0.08%      [and        less      than        0.10%]      by     weight        of

alcohol     in   the      defendant's           blood"          is   subject         to       the     same

penalties.       N.J.S.A. 39:4-50(a), (a)(1)(i).                              However, "if the




                                                 2                                              A-3797-13T4
person's    blood   alcohol      concentration    is    0.10%     or   higher,"    a

first offender is also subject to a fine of $300 to $500 and a

license suspension of seven to twelve months.                     N.J.S.A. 39:4-

50(a)(1)(ii).

       The Legislature has provided that if a person who operated

a motor vehicle gives a breath sample, "[a] record of the taking

of any such sample, disclosing the date and time thereof, as

well as the result of any chemical test, shall be made and a

copy   thereof,     upon   his   request,   shall      be   furnished    or   made

available   to    the   person    so   tested."        N.J.S.A.    39:4-50.2(b).

"The police officer shall inform the person tested of" the right

to receive a copy on request, as well as the right "to have such

samples taken and chemical tests of his breath, urine or blood

made by a person or physician of his own selection."                     N.J.S.A.

39:4-50.2(c), (d).

       The Legislature also provided that "[a] standard statement

. . . shall be read by the police officer to the person under

arrest."     N.J.S.A. 39:4-50.2(e).          The Standard Statement for

Motor Vehicle Operators (Standard Statement) advises:

            3. A record of the taking of the breath
            samples, including the test results, will be
            made.   Upon your request, a copy of that
            record will be made available to you.

            4. After you have provided samples of your
            breath for testing, you have the right, at
            your own expense, to have a person or



                                        3                                 A-3797-13T4
            physician   of   your  own   selection  take
            independent samples of your breath, blood or
            urine for independent testing.

            [New Jersey Attorney General’s Standard
            Statement   For   Motor   Vehicle   Operators
            (N.J.S.A. 39:4-50.2(e)) (revised & eff. July
            1, 2012), available at http://www.njsp.org/
            divorg/invest/pdf/adtu/070912_dwi_standardst
            atement.pdf       (hereinafter       Standard
                         1
            Statement).]

    In     Chun,    our       Supreme    Court     found    the   Alcotest      was    a

scientifically reliable breath test, and held its results could

be admissible to prove a per se violation of the DWI statute.

Chun,   supra,     194    N.J.   at     65.       The   Court   said   the    Alcotest

"operator must retain a copy of the AIR and give a copy to the

arrestee."    Id. at 82.

                                          II.

    On     February      5,    2013,    Patrol      Officer     Christopher    Nelson

observed   defendant's         vehicle    "jump[]"       into   the    left   lane    of

Route 23, drift into the center and right lanes, and then drift

back to the left lane, all without using a turn signal.                           When

the officer turned on his emergency lights, defendant almost

caused an accident trying to get to the shoulder.                      Her eyes were


1
  The 2012 version is slightly reworded from the 2004 version,
which identically stated: "Upon your request, a copy of that
record will be made available to you." New Jersey Motor Vehicle
Commission Standard Statement For Operators Of A Motor Vehicle -
N.J.S.A. 39:4-50.2(e) (revised & eff. Apr. 26, 2004), available
at http://www.state.nj.us/oag/dcj/agguide/dmvrefnew.pdf.



                                              4                               A-3797-13T4
bloodshot and watery, her eyelids were droopy, and her vehicle

smelled of alcohol.           After she failed several psycho-physical

sobriety    tests,    she    was    arrested        for    DWI.      Patrol   Officer

William Juliano transported defendant to the police station for

an Alcotest.

    At the station, Officer Nelson read defendant the Standard

Statement.      Officer Juliano served as the Alcotest operator.

While he observed defendant, she burped.                     After restarting the

twenty-minute observation period, he conducted the test.                             The

Alcotest equipment printed the AIR, which showed defendant's BAC

was 0.12%.     At the bottom of the AIR "Copy Given to Subject" was

preprinted.    The officer made a copy of the AIR and gave it to a

superior officer, but did not give a copy to defendant.

    Officer Juliano advised Officer Nelson of the test results.

Officer    Nelson    then    issued      defendant        summonses    for    "Driving

While   Intoxicated,        [N.J.S.A.]     39:4-50,"        unsafe    lane    change,

N.J.S.A. 39:4-88(b), and careless driving, N.J.S.A. 39:4-97.

    Defendant       appeared    before        the   Municipal     Court.       At    the

beginning     of    the     hearing,     defense      counsel     announced         that

defendant was "conceding that the observations, the driving, the

psycho-physical tests, [and] the other indicia are sufficient

under   the   [DWI]       statute   to    establish        [she   was]     under     the

influence."        Both sides agreed the issue was "a 90 day or a




                                          5                                   A-3797-13T4
seven month suspension," that is, whether defendant was guilty

only of an observation violation, or also a per se violation.

The parties agreed to hold a pre-trial hearing under N.J.R.E.

104 to determine the admissibility of the Alcotest BAC results.

In     the   "104    hearing,"     Officer      Nelson    and    Officer     Juliano

testified about the Alcotest, and were found credible by the

court.

       In    the    104   hearing,    defense      counsel      argued     that   the

Alcotest results must be suppressed because Chun required that

Officer Juliano provide the AIR to defendant in the station, and

that    defendant     did   not    have   to    show   any   prejudice     from   his

failure to do so.           The prosecutor doubted whether any police

department in the State gave a copy of the AIR to the arrestee.

       The Municipal Court was concerned that a copy of the AIR

was not given to defendant, as preprinted on the form, and urged

the State to either give a copy of the AIR to arrestees, or

change the form.          However, the court ruled that failure to give

defendant a copy of the AIR was not sufficient to suppress the

BAC results.        The court rejected defendant's other suppression

arguments, including that defendant's burp compromised the test.

The    court   admitted      the    AIR   and    the     Alcotest   results       into

evidence.




                                          6                                 A-3797-13T4
      Defense       counsel    said    defendant         wanted       to    enter       "a

conditional      guilty       plea,   in       other     words,       conceding        the

observations as we discussed earlier."                  The Municipal Court made

clear to defendant that the conditional plea would allow her to

appeal   the    "decision      concerning      the     104    hearing      and   the    []

admission of the Alcotest readings," but would not affect her

"guilty plea as to the 90 day loss of license based on the

observations."       Defendant indicated she understood.

      In her guilty plea colloquy, defendant admitted to driving

"under the influence of alcohol" because she had "[o]ne glass of

wine."   The Municipal Court asked for more facts, and Officer

Nelson gave the observation testimony above.                     The court found a

factual basis for the guilty plea "based upon the statements of

the   defendant,       as     well    as       the     officer     in      regard       to

observations."       Under the plea bargain, the court dismissed the

charges of careless driving and unsafe lane change.

      The Municipal Court sentenced defendant to a fine of $306

and a license suspension of seven months based upon "the reading

of .12 percent."           The court also sentenced her to twelve hours

detainment     in    the    IDRC   program,      a     $200   Drunk     Driving      Fund

assessment, and various fees, surcharges, and court costs.                               On

the ticket, the court noted ".12" and a "conditional plea."                            The

court stayed the sentence pending appeal.




                                           7                                     A-3797-13T4
      Defendant   appealed     to     the    Law     Division,    where    defense

counsel argued that the Alcotest results had to be suppressed

because of the burp and the failure to provide defendant a copy

of the AIR at the police station.               The prosecutor argued that

the   officer's     reading    of     the    Standard     Statement       informed

defendant of her right to get a copy of the AIR, that Chun did

not require the immediate presentation                 of the AIR, and that

defendant was not prejudiced because she requested the AIR at

the beginning of the legal proceedings and received it in a

timely fashion.

      The Law Division judge rejected defendant's argument about

the burp.     The court credited that Officer Nelson read defendant

the Standard Statement, and that defendant was informed of her

rights.       However,   the   court        ruled    "defendant's     motion     to

suppress is granted on the grounds that the State failed to

provide a copy of the AIR at the time of the defendant's arrest

as required by Chun."

      The Law Division judge then stated "as I understand it

there's no contest as to the observational standard."                          When

defense   counsel    agreed,    the    court        immediately   proceeded      to

sentencing.    The court stated that defendant had been "convicted

under the observational standard," and imposed the required $250

fine and license suspension of three months.                     The court also




                                       8                                  A-3797-13T4
imposed a $6 assessment, a $100 Drunk Driving Fund assessment,

and the same IDRC detainment, fees, surcharges, and court costs

imposed by the Municipal Court.                   The Law Division's March 10,

2014    order     stated   "that      Defendant's     Motion   to   Suppress   the

Alcotest Results is GRANTED," and that defendant was guilty of

DWI "under the observational standard."

       This court granted the State's unopposed motion for leave

to appeal.        Meanwhile, defendant served the three-month license

suspension, and then her driving privileges were restored.

                                           III.

       We first address defendant's claim that the State's appeal

is barred by double jeopardy.               Defendant's argument is contrary

to proper appellate procedure and double jeopardy law.

       The Supreme Court addressed the proper appellate procedure

in State v. Greeley, 178 N.J. 38 (2003).                     There, "[w]ith the

prosecution's consent, defendant entered a conditional guilty

plea [in Municipal Court], expressly preserving his right to

challenge the denial of his motion to suppress the breathalyzer

readings."        Id. at 50.          The Court held this was "the proper

procedure" to preserve such an issue for appeal.                    Id. at 50-51.

It allows a defendant to appeal the denial of the motion to the

Law Division de novo, to this court, and to the Supreme Court.

See    id.   at   42.      If   one   of    those   courts   grants   defendant's




                                            9                            A-3797-13T4
appeal, the State may appeal to a higher appellate court, which

may reverse the suppression of the BAC results "and reinstate

defendant's conviction."     Id. at 40, 42.

      Here, defendant admittedly entered not only a conditional

plea to the per se violation, but also an unconditional guilty

plea to the observation violation.            Thus, when she appealed and

the   Law   Division   suppressed       the    BAC    results,    defendant's

unconditional    guilty   plea    to    the   observation    violation     was

unaffected.     The Law Division proceeded to sentence defendant on

her   observation    violation,   imposing      the    three-month   license

suspension required by N.J.S.A. 39:4-50(a)(1)(i).                Nonetheless,

under proper appellate procedure, the State retained the right

to appeal the Law Division's suppression of the BAC results and

to seek reinstatement of the Municipal Court's sentence for the

per se violation.2




2
  Defendant, citing State v. Giordano, 281 N.J. Super. 150 (App.
Div. 1995), notes that her motion to suppress the BAC results
was not a motion to suppress physical evidence unlawfully
obtained. That distinction required defendant to make her plea
conditional to preserve an appeal. Greeley, supra, 178 N.J. at
50-51; see R. 7:6-2(c) (allowing conditional pleas); Pressler &
Verniero, Current N.J. Court Rules, comment 2.4 on R. 7:6-2(c)
(2015) (the adoption of Rule 7:6-2(c) "effectively overrules"
Giordano). However, that distinction does not deprive the State
of its right to appeal, as the State can appeal an interlocutory
order excluding evidence before trial. R. 2:3-1(b)(5); State v.
Ruffin, 371 N.J. Super. 371, 389 (App. Div. 2004).



                                       10                            A-3797-13T4
    Nevertheless, defendant contends that the State's appeal

violates   the   constitutional       prohibitions     of   double     jeopardy.

U.S. Const. amend. V, XIV; N.J. Const. art. I, ¶ 11; see State

v. Widmaier, 157 N.J. 475, 489-96 (1999).               She asserts the Law

Division acquitted her of a per se violation.                    However, that

court never purported to acquit defendant.                  Rather, the court

simply reversed the denial of the motion to suppress the BAC

results, and then sentenced defendant based on her unconditional

plea to the observation violation.

    Defendant     argues     that    the    Law   Division's     ruling   was    an

acquittal regardless of its label.                "Under both the state and

federal double jeopardy clauses, an appeal from an acquittal is

impermissible if 'the ruling of the judge, whatever its label,

actually represents a resolution, correct or not, of some or all

of the factual elements of the offense charged.'"                      Widmaier,

supra, 157 N.J. at 490 (quoting United States v. Martin Linen

Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L.

Ed. 2d 642, 651 (1977)).       However, the Law Division did not find

defendant had a BAC of less than 0.10%, or otherwise resolve any

of the factual elements of the per se violation.                   Instead, the

court   only   ruled   her   0.12%    BAC    result   had   to   be   suppressed

because the operator did not give her a copy of the AIR in the

police station.




                                       11                                 A-3797-13T4
    In these circumstances, even if the Law Division had said

defendant was "acquitted" or "not guilty," it would not have

affected the State's ability to appeal.       In State v. Sohl, 363

N.J. Super. 573, 574 (App. Div. 2003), the defendant entered a

conditional plea to a per se violation in Municipal Court, and

appealed to the Law Division.      The Law Division suppressed the

BAC results, "'reversed' the conviction of the municipal court

and entered a judgment of 'not guilty.'"     Id. at 575.   The State

appealed.

    We ruled that, "[a]s defendant entered a conditional guilty

plea in municipal court, the Law Division judge should not have

entered a judgment of acquittal."      Id. at 580-81 (citing State

v. Golotta, 354 N.J. Super. 477, 483 (App. Div. 2002), rev'd on

other grounds, 178 N.J. 205 (2003)).    "The de novo appeal of the

motion was limited to the legal issue of the admissibility of

the [BAC results].   The case was not heard on its merits."       Id.

at 581.     "The Law Division judge was empowered to make his

findings and, upon reversal of the municipal court's ruling,

return the case to the municipal court for further proceedings

in accordance with his ruling."    Ibid.3   Because the Law Division




3
  We cited Rule 7:6-2(c), which provides that "a defendant may
enter a conditional plea of guilty, reserving on the record the
right to appeal from the adverse determination of any specified
                                                    (continued)


                                  12                        A-3797-13T4
failed      to    remand,       the       "[d]efendant         did    not    return     to   the

municipal court where his plea remained viable.                                    He did not

retract his guilty plea.                  Therefore, the Law Division judge was

unable to enter a finding of not guilty as defendant's plea of

guilt    remained     entered         upon     the      record       in    municipal   court."

Ibid.       Thus, in Sohl, we reversed the suppression ruling and

remanded to the Municipal Court, "where defendant is to comply

with the terms of his sentence."                       Ibid.

      In Golotta, supra, 354 N.J. Super. at 480, the Law Division

similarly        reversed       a     denial       of    suppression         and   entered      a

"judgment of acquittal."                  We rejected "defendant's argument that

[the State's] appeal is barred by the constitutional prohibition

against double jeopardy."                   Id. at 484.         We stressed that "[t]he

State will be barred from seeking review of an acquittal only

'if   the    ruling       of    the       judge,       whatever      its    label,     actually

represents a resolution, correct or not, of some or all of the

factual     elements       of       the    offense       charged.'"          Ibid.     (quoting

Widmaier,        supra,    157       N.J.    at    490     (internal        quotation     marks

omitted)).        We held that "[t]he disposition by the Law Division

judge of the motion to suppress was in no sense a resolution of

the merits of the charged offense.                        Thus, the use of the phrase


(continued)
pretrial motion.   A defendant who prevails on appeal shall be
afforded the opportunity to withdraw the guilty plea."



                                                  13                                   A-3797-13T4
'judgment of acquittal' is not a bar to the State's appeal."

Ibid.     Although we affirmed on the merits, ibid., the Supreme

Court addressed the State's appeal on the merits and reversed

the suppression ruling.            State v. Golotta, 178 N.J. 205, 209,

229 (2003).

      Under Golotta and Sohl, the State's appeal does not violate

double jeopardy.      Defendant notes that double jeopardy is meant

to prevent the State from making "repeated attempts to convict

the   accused."      State    v.    Barnes,    84     N.J.   362,   370    (1980).

However, the State's appeal here will not result in multiple

trials.    If we reverse the Law Division's suppression ruling,

defendant remains subject to a valid conditional guilty plea to

the per se violation, and we need only remand to the Municipal

Court so that defendant can "comply with the terms of [that

court's]    sentence"   under       N.J.S.A.    39:4-50(a)(1)(ii).            Sohl,

supra, 363 N.J. Super. at 581.

      Defendant's conditional guilty plea distinguishes this case

from the cases cited by defendant in which a trial and acquittal

regarding a DWI charge barred a subsequent conviction on the

same DWI charge.      E.g., State v. Cuneo, 275 N.J. Super. 16, 18,

22 (App. Div. 1994); State v. Costello, 224 N.J. Super. 157, 159

(App.   Div.),    certif.    denied,    111    N.J.    596   (1988);      State    v.

Lanish, 103 N.J. Super. 441, 442-44 (App. Div. 1968), aff’d




                                       14                                  A-3797-13T4
o.b., 54 N.J. 93 (1969); cf. State v. Kashi, 360 N.J. Super.

538,    544-45    (App.   Div.        2003)     (distinguishing         Lanish),     aff’d

o.b., 180 N.J. 45 (2004).4                  Here, the State's appeal will 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" than the per se violation to

which she pled guilty.                 State v. Kashi, 180 N.J. 45, 48-49

(2004).        Therefore,        we    hold        there    is   no    double     jeopardy

violation.

                                            IV.

       We   now    turn     to        the    merits        of    the   Law      Division's

interpretation of Chun.               "A trial court's interpretation of the

law" is "not entitled to any special deference," and its "legal

conclusions are reviewed de novo."                     State v. Gamble, 218 N.J.

412, 425 (2014).      We hew to that standard of review.

       The Law Division ruled that "the failure of the State to

provide the defendant with a copy of the AIR on the date of

[her] arrest warrants suppression of the proffered BAC results."

The    court   reasoned     that       Chun's       "use    of   the   term     'arrestee'

rather than defendant contemplates that a copy of the AIR be

4
   Defendant also cites unpublished appellate opinions that
dismissed State appeals. We are not bound by, and do not cite,
unpublished opinions.      R. 1:36-3.    In any event, those
defendants did not enter a conditional guilty plea, but went to
trial in the Municipal Court.



                                              15                                  A-3797-13T4
given to the individual while under arrest, and not at a later

time upon request or during discovery once charges are brought

against the defendant."            The court found support in the report

of the Alcotest Special Master.                King, P.J.A.D., Special Master,

Findings and Conclusions Submitted to N.J. Supreme Court (Feb.

13, 2007) (hereinafter Special Master's Report), reprinted in

State v. Chun, No. 58, 879, 2007 N.J. LEXIS 39 (Feb. 13, 2007)

("LEXIS").5        The    Special     Master's      Report   noted:       "With     the

Alcotest 7110 a permanent record, the AIR, is printed out and a

copy given to the suspect after the test is completed."                       Id. at

248, LEXIS at *285.

       However,     the     Special       Master's      comment       was     not     a

recommendation of a legal requirement.                  Rather, it is part of

his    technical    comparison       of   the     Alcotest      machine     and     the

breathalyzer machine.          Specifically, the comment occurs in his

discussion of why, "[u]nlike the breathalyzer, the Alcotest 7110

is    not   operator      dependent."          Ibid.,   LEXIS    at   *284.         The

breathalyzer      only    showed    the   BAC     results    "where    the    needle

indicator stopped on the dial," and the "operator simply wrote

down his observation of the reading."               Ibid., LEXIS at *285.            By




5
  We will note the LEXIS page number for the convenience of the
reader.



                                          16                                 A-3797-13T4
contrast, the Alcotest machine is attached to a printer which

automatically prints an AIR containing the results.                             Ibid.

       As the Special Master stated: "No contemporaneous, machine-

generated    permanent        record    was       produced    by    the    breathalyzer.

With the Alcotest 7110 a permanent record, the AIR, is printed

out    and   a     copy    given   to    the       suspect        after    the        test    is

completed."        Ibid.      The Special Master's emphasis was that the

Alcotest's         "entire     process        is     automatic,"           resulting          in

"accuracy,       contemporary      documentation             of     the        result,       and

elimination        of   the   ability        of    the    operator        to    falsify       or

exaggerate the test outcome.                 This independence from potential

operator influence and a permanent machine-printed record are

decided advantage over the breathalyzer."                     Id. at 249, LEXIS at

*285-86.

       Further, the Special Master's comment about giving a copy

of the AIR to the suspect derived not from the law, but from the

practices of the Alcohol Drug Testing Unit (ADTU) of the New

Jersey State Police.           "The ADTU instructs operators to give one

copy to the local police department, retain one copy, and give a

copy   to    the    subject."          Id.    at    43,    LEXIS     at        *48.      "Upon

completion of a test, the ADTU recommends that the operator give

a copy of the AIR to the subject."                        Id. at 116-17, LEXIS at




                                             17                                       A-3797-13T4
*135-36.      The Special Master made no mention of requiring such a

practice in his findings of fact or conclusions of law.

       Our Supreme Court's comment that the "operator must retain

a copy of the AIR and give a copy to the arrestee" was similarly

part of a technical discussion, not a legal discussion.                                     See

Chun, supra, 194 N.J. at 82.                   The comment came in the section of

the Court's opinion addressing "How the Alcotest Works."                                 Id. at

75-84.       The Court made the comment as part of its "description

of    the    manner      in    which     the     device       operates      in    practice,"

discussing "[o]ne of the claimed advantages of the Alcotest, as

compared to the breathalyzer, [namely] that it is not operator-

dependent."        Id. at 79.

       The    Court      did    not    reference       that    comment      again    in     its

lengthy and thorough opinion.                       Most pointedly, there was no

mention      of    the        comment     in     the    Court's       detailed       section

addressing        its    "Requirements          Prior     to    the   Admissibility          of

Alcotest Evidence," id. at 134-49, including its requirements

for    "Alcohol         Influence       Report      Admissibility,"         id.     at     145.

Further,      no    such       requirement       is     mentioned      in    the     Court's

extensive order specifying conditions under which the AIR "is

admissible as evidence of" a defendant's BAC.                            Id. at 149-54.

Although that section and the order required the "foundational

documents" to be produced in discovery, id. at 134-35, 144-45,




                                               18                                   A-3797-13T4
148, 153, they did not similarly dictate when the AIR had to be

produced.     Thus, the context in which the Court made, and did

not make, its comment suggests that it was not establishing a

legal requirement, despite the word "must."6

      We recognize that "'an expression of opinion on a point

involved in a case, argued by counsel and deliberately mentioned

by the court, although not essential to the disposition of the

case . . . becomes authoritative[] when it is expressly declared

by the court as a guide for future conduct.'"                State v. Rose,

206   N.J.   141,   183   (2011)   (quoting    21   C.J.S.   Courts      §   230

(2006)).     Even "well-reasoned dictum" from our Supreme Court is

"worthy of and entitled to the utmost respect.                 Indeed, as an

intermediate    appellate    court,   we   consider    ourselves   bound      by

carefully considered dictum from the Supreme Court."                State v.

Breitweiser,    373   N.J.   Super.   271,    282-83   (App.    Div.    2004),

certif. denied, 182 N.J. 628 (2005); see State v. Dabas, 215

N.J. 114, 136-37 (2013).

6
  In analyzing legislation, "the words 'must' and 'shall' are
generally mandatory."   Harvey v. Bd. of Chosen Freeholders, 30
N.J. 381, 391 (1959).     However, that "presumption is not a
conclusive one" and it can "be overthrown by something in the
character of the legislation or in the context which will
justify a different meaning."    Union Terminal Cold Storage Co.
v. Spence, 17 N.J. 162, 166 (1954); e.g., Franklin Estates, Inc.
v. Twp. of Edison, 142 N.J. Super. 179, 184-85 (App. Div. 1976),
aff'd o.b., 73 N.J. 462 (1977); see State v. Thomas, 188 N.J.
137, 149-50 (2006) (citing Norman J. Singer, 1A Sutherland
Statutes and Statutory Construction § 25:4 (6th ed. 2000)).



                                      19                               A-3797-13T4
      Here, however, we are faced with a countervailing command,

namely the Legislature's specific determination of when a copy

of breath test results must be given to the person tested.                                   The

Legislature        provided     that    "a    copy    thereof        .    .    .     shall    be

furnished or made available to the person so tested" "upon his

request."          N.J.S.A. 39:4-50.2(b).             That statutory requirement

has   long    been    the    controlling       law,    and    is     reflected         in    the

statutorily-required Standard Statement.                     "'Once the Legislature

has made that decision, and has made it within constitutional

bounds,      our    sole    function    is    to    carry     it   out.'"            State    v.

French, 437 N.J. Super. 333, 337 (App. Div. 2014) (quoting State

v. Des Marets, 92 N.J. 62, 65-66 (1983)).

      We do not believe the Legislature would have mandated that

the police turn over a copy of the breath test results upon

request, or that the police tell the persons tested they have a

right   to     receive      a   copy    upon       request,     if       the    Legislature

believed      the     police     were    also        required        to       give    a     copy

simultaneously to those same persons.                       If the Legislature had

intended that the police be required to give a copy to the

persons tested at the police station, we see no reason why the

Legislature would not have stated that requirement in N.J.S.A.

39:4-50.2, rather than only requiring the police to provide a

copy upon request.           If the Legislature had intended to give the




                                             20                                       A-3797-13T4
persons tested the right to automatically receive a copy at the

police station, we see no reason why the Legislature would have

required the police to advise the persons tested only that they

had the right to get a copy if they made a request.                           Regardless

of the merits of providing the persons tested with a copy of the

breath test results at the police station, or requiring the

police to do so without a request, it does not appear that the

Legislature envisioned that requirement or intended to impose

it, and we cannot interpret N.J.S.A. 39:4-50.2 to encompass such

a requirement.      See State v. Williams, 218 N.J. 576, 586 (2014).

    After carefully reviewing Chun, we cannot find that our

Supreme Court deliberately intended to contravene the statutory

standard   in     N.J.S.A.   39:4-50.2(b).           The    Court       did    not    cite

N.J.S.A. 39:4-50.2 or the Standard Statement.                    The Court gave no

inkling    that    it     considered     and      replaced       the    Legislature's

standard that a copy of the breath test must be provided to the

tested person only "upon request," ibid., with a requirement

that the copy must be furnished to the tested person at the

police station without a request.                 The Court's opinion contains

no reasoning why the Legislature's standard could be superseded.

Although    the      Court     stated     that       some        "conditions          upon

admissibility       we     impose   as        a    matter    of        constitutional

imperative,"      Chun,    supra,   194       N.J.   at    65,    the    Court       never




                                         21                                     A-3797-13T4
referenced providing a copy at the police station as one of

those conditions, or indicated that providing a copy on request

would be constitutionally inadequate.                Nor did the Court invoke

its   "supervisory      powers    over   the      administration         of     criminal

justice" to justify such a change.                  See State v. Ramseur, 106

N.J. 123, 252 n.56 (1987) (declining to exercise its supervisory

powers because "[t]he Legislature has spoken in this area").                            We

believe that if the Supreme Court had intended to change the

Legislature's standard, it would have referenced N.J.S.A. 39:4-

50.2(b)   and    expressly       explained        that     it   was     altering      the

statutory standard and that the Standard Statement should be

similarly revised.

      Indeed,   subsequent       cases   contain         no   indication      that    the

Court made such a change.           Three times since Chun, our Supreme

Court has discussed at length the requirements of N.J.S.A. 39:4-

50.2 and the adequacy and accuracy of the Standard Statement.

State v. O'Driscoll, 215 N.J. 461, 465-81 (2013) (addressing the

reading   of    an    outdated      Standard        Statement         with    incorrect

penalties);     State    v.      Schmidt,     206    N.J.       71,     72-89     (2011)

(addressing     the     alleged      incompleteness             of     the      Standard

Statement);     State    v.   Marquez,      202     N.J.      485,    489-515     (2010)

(addressing the need to make the Standard Statement intelligible

to the suspect); see also State v. Spell, 196 N.J. 537, 538-40




                                         22                                     A-3797-13T4
(2008) (addressing suggested changes to the Standard Statement).

The   Court   quoted      and   referenced    the    Standard    Statement's

language that a copy of the test results will be provided "on

request" under N.J.S.A. 39:4-50.2(b).             Schmidt, supra, 206 N.J.

at 75, 82; accord O'Driscoll, supra, 215 N.J. at 467; Marquez,

supra, 202 N.J. at 492, 500.

      For   all   these   reasons,   we    hold   that   the   Court's   terse

comment in Chun did not reject N.J.S.A. 39:4-50.2(b)'s standard

for when a police officer is required to provide a copy of the

results of a breath test.7           Nor do we feel it appropriate to

rewrite N.J.S.A. 39:4-50.2(b) ourselves.8           Accordingly, we reject

the Law Division's finding of error.

                                      V.

      In any event, Chun did not discuss whether disclosure of

the AIR on request, rather than in the police station, would


7
  We note that a leading treatise states that although "[p]olice
are trained to retain a copy of the AIR and to give a copy to
the defendant," and cites Chun, supra, 194 N.J. at 82, it
reaffirms "[t]echnically, a test subject must request a copy of
the results," and cites N.J.S.A. 39:4-50.2(b).    Robert Ramsey,
New Jersey Drunk Driving Law § 10:20 at 381 & n.1 (2014).
8
  Unlike the Supreme Court, "we have no supervisory authority
over courts and no rulemaking power." State v. Spell, 395 N.J.
Super. 337, 348 n.8 (App. Div. 2007) (nonetheless requiring
officers to read an additional paragraph of the Standard
Statement), aff'd as modified, 196 N.J. 537, 539 (2008) (holding
that "the Appellate Division exceeded its mandate" by requiring
officers to read the additional paragraph).



                                      23                             A-3797-13T4
require suppression.              We hold that suppression of the AIR is not

an appropriate remedy in the absence of prejudice.

       The Law Division suggested that suppression was required

because Chun "demanded that, as a precondition for admissibility

of the results of a breathalyzer, the State was required to

establish that: (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."              Chun,    supra,      194     N.J.       at    134    (citing

Romano v. Kimmelman, 96 N.J. 66, 81 (1984)).

       Here, it was undisputed that the Alcotest device "was in

good   working       order      and     that    the       operator    of       the    device      was

appropriately            qualified       to     administer          the        test."          Ibid.

Furthermore, the Municipal Court and the Law Division found that

the    test     itself          "was     administered         according              to    official

procedure."         Ibid.       Both courts rejected defendant's challenges

to the procedure of the test itself.

       By contrast, the issue here concerns only the timing of

when   a   person        receives       a    copy    of     the   AIR      —    at    the    police

station, on request, or in discovery.                        It in no way affects the

validity      of    the     already-completed              Alcotest,       or       the    already-

recorded BAC.            Delivery of a copy thus differs from the protocol

designed to ensure the Alcotest is properly conducted and the




                                                24                                          A-3797-13T4
test results are accurate.              The Special Master stated that "the

multiple-step      testing      protocol         must    be    meticulously          followed

before the test result is admitted in evidence," and "[i]f the

test protocol or instructions are violated in any respect, the

BAC reading must be rejected as evidence."                            Special Master's

Report, supra, at 230, 234, 242, LEXIS at *267, 271, 280.                                    He

did not state that the timing of copy delivery should invalidate

a valid test.

    Defendant       here      expressly      declined         to    make    a    showing     of

prejudice   from     receiving         the       AIR    at    the    beginning        of   the

litigation rather than at the police station.                         Therefore, we see

no basis to suppress her valid test results.                                See State v.

Wolfe, 431 N.J. Super. 356, 363 (App. Div. 2013) (refusing to

exclude the AIR, despite the State's delay in providing a copy

of the Alcotest foundational documents to the defendant, because

he made "no significant argument of prejudice"), certif. denied,

217 N.J. 285 (2014).

    The     Law     Division         also    asserted         that    suppression          was

warranted   because        "failing         to    provide      a     copy       of   the   AIR

substantially interferes with the defendant's right to obtain

independent testing under N.J.S.A. 39:4-50.2.                         By [] immediately

providing   a     copy   of    the    results,         the    individual        is   given    a

meaningful opportunity to challenge the results of the AIR."




                                             25                                      A-3797-13T4
Thus, the Law Division reasoned, "the failure to give the AIR

deprives the defendant of a potential defense[.]"9

       However, a tested person does not need a copy of the AIR to

obtain independent testing under N.J.S.A. 39:4-50.2(c).                  Since

1982, N.J.S.A. 39:4-50.2(c) has provided that "the person tested

shall be permitted to have such samples taken and chemical tests

of his breath, urine or blood made by a person or physician of

his own selection."       Ibid.     Defendants long have exercised that

right without getting a copy of the breath test results at the

police station.

       Furthermore, the AIR does not advise a tested person of

their right to obtain independent testing.           Rather, pursuant to

N.J.S.A. 39:4-50.2(e), that advice is given when the officer

reads the Standard Statement to the person, stating "you have

the right, at your own expense, to have a person or physician of

your   own    selection   take    independent   samples   of   your   breath,

blood or urine for independent testing."             Standard Statement,

supra.       The Law Division found that Officer Nelson read the

Standard Statement to defendant.           She has never contended she

was unaware of her right to independent testing or was prevented

9
  We read the Law Division as referring solely to the opportunity
to contradict the Alcotest BAC results through independent
testing.    A defendant who receives the AIR upon request,
including in discovery, has ample opportunity to challenge
whether the Alcotest was properly conducted.



                                      26                              A-3797-13T4
from exercising it because she did not get a copy of the AIR at

the police station.

      We recognize that giving tested persons a copy of the AIR

at the police station informs them of their BAC results, as well

as   details    about    the   test.      However,        the   State   long   used

breathalyzers which did not produce a printout with the BAC

results.       Nevertheless,    neither       the    Legislature    in   drafting

N.J.S.A. 39:4-50.2(b), nor the Executive Branch in crafting the

Standard   Statement,      found   the       right   of    independent    testing

required officers to inform persons at the police station of the

BAC found by a breath test.            Other than advising a defendant of

the rights expressly set forth in N.J.S.A. 39:4-50.2(b) and (c),

"the statute sets forth no other affirmative duties on the part

of the police."         Greeley, supra, 178 N.J. at 43; see State v.

Howard, 383 N.J. Super. 538, 549 (App. Div.), certif. denied,

187 N.J. 80 (2006).

      Defendant already had an incentive to obtain independent

testing to show she was not driving with an elevated BAC.                       She

knew that her breath had been tested for BAC, and that she was

being charged with drunk driving.                An independent test might

contradict any BAC found by the State's Alcotest, or undermine

any testimony that she was observed "operat[ing] a motor vehicle




                                        27                                A-3797-13T4
while   under   the   influence      of    intoxicating         liquor,"      N.J.S.A.

39:4-50(a)(1).

      In any event, it is defendant's burden to show that she

would   have    sought     independent         testing    absent       the    allegedly

improper police conduct, and that "such an examination could

have been conducted in a reasonable period of time so as to

produce relevant or probative evidence."                    State v. Hicks, 228

N.J. Super. 541, 551 & n.4 (App. Div. 1988), certif. denied, 127

N.J. 324 (1990); see State v. Jalkiewicz, 303 N.J. Super. 430,

434-35 (App. Div. 1997).           "[S]o long as a defendant is informed

of the right to an independent test, police conduct will warrant

suppression     of    BAC    test      results       only       if     that    conduct

affirmatively    interferes     with      or    thwarts     a    defendant's      good-

faith attempt to obtain an independent test."                         Greeley, supra,

178 N.J. at 45.       Here, defendant has failed to carry her burden

to show such prejudice,        or that the police conduct "render[ed]

the statutory right meaningless."                Id. at 43; see Hicks, supra,

228   N.J.   Super.   at    549.      Because       there       was    no    "arbitrary

deprivation of the right to an independent test, we reverse the

[Law] Division's judgment suppressing the breath[] results and

reinstate defendant's conviction."                Greeley, supra, 178 N.J. at

50.




                                          28                                   A-3797-13T4
    Our decision is supported by consideration of the cost and

benefit of suppressing the AIR that showed defendant's blood

alcohol level was 0.12%.                 Even when constitutional protections

against search and seizure are at stake, courts: consider that

"'[t]he exclusionary rule generates substantial social costs,

which    sometimes      include          setting   the     guilty     free    and     the

dangerous at large'"; are "'cautious against expanding it'"; and

apply    it   only    "'where       its    deterrence      benefits    outweigh       its

substantial social costs.'"               State v. Gioe, 401 N.J. Super. 331,

339 (App. Div. 2008) (quoting Hudson v. Michigan, 547 U.S. 586,

591, 126 S. Ct.         2159, 2163, 165 L. Ed. 2d 56, 64 (2006)),

certif. denied, 199 N.J. 129 (2009).                     "Sometimes, the cost of

excluding      evidence       is    not    justified     by   the     rule    and     its

purposes."      State v. Herrerra, 211 N.J. 308, 330 (2012).                        Such

an analysis is even more crucial where no constitutional rights

are at issue, as here.              E.g., Gioe, supra, 401 N.J. Super. at

341-44 (declining to suppress evidence seized in violation of a

rule).

    Suppressing          a     defendant's         valid      BAC     results,        and

eliminating or substantially reducing the license suspension,

subjects      the    public    to    a    danger   the     Legislature       sought    to

prevent.      "[T]he primary purpose behind our drunk driving laws

is to remove intoxicated drivers from our roadways and thereby




                                            29                                 A-3797-13T4
'to curb the senseless havoc and destruction' caused by them."

Chun, supra, 194 N.J. at 71 (quoting State v. Tischio, 107 N.J.

504, 512 (1987)).     The Legislature created the per se offense of

driving with a BAC of 0.10% or higher "to take into account

'mounting scientific findings,' to the effect that almost all

drivers   suffered    reduced   driving     ability     at   a    BAC    of   0.10

percent."    Id. at 72 (quoting Tischio, supra, 107 N.J. at 516).

The   Legislature    subsequently    increased    the    period     of   license

suspension for a first-offender to seven months.                    Id. at 74.

License suspensions "'are mainly designed to protect the public

by removing the offenders from the road.'"              N.J. Div. of Motor

Vehicles v. Egan, 103 N.J. 350, 357 (1986).

      On the other hand, providing a copy of the AIR to the

suspect at the police station, rather than on request or in

discovery,   may     produce    benefits    in    limited        circumstances.

Persons   being    breath   tested   may   be   intoxicated,      experiencing

their first arrest, and unrepresented by counsel.                  Providing a

copy of the AIR at the police station may benefit persons who,

despite hearing the Standard Statement, fail to understand their

right to request a copy, and do not make a request themselves,

through counsel, or in discovery.          Here, defendant did not claim

she failed to understand the Standard Statement.




                                     30                                  A-3797-13T4
       Given   the     significant      costs     of    suppressing        valid       BAC

results, the limited benefits of the new obligation defendant

seeks to impose, and her failure to show prejudice, we find

suppression unwarranted.

                                           VI.

       In any event, we would not apply a new obligation requiring

suppression retroactively.            "'[A] case announces a new rule when

it    breaks   new    ground     or   imposes     a     new    obligation        on    the

State[.]'"        State v. Molina, 187 N.J. 531, 543 (2006).                           The

"'purpose of the [new] rule'" must be weighed against "'the

degree of reliance placed on the old rule'" and "'the effect a

retroactive    application       would     have    on    the    administration          of

justice.'"        Ibid.     Here, law enforcement has long relied on

N.J.S.A.    39:4-50.2(b).          Moreover,      given       the   many    Alcotests

performed since the Attorney General approved the Alcotest for

use   in   1999,     see    31   N.J.R.    770(b)       (eff.    Feb.      19,    1999),

retroactivity could have a substantial effect and "would expose

the judicial system to the undue burden of resolving numerous

concluded matters,"         Olds v. Donnelly, 150 N.J. 424, 450 (1997).

       Further,      "new   procedural     rules       generally     do    not      apply

retroactively."        State v. J.A., 398 N.J. Super. 511, 526 (App.

Div.), certif. denied, 196 N.J. 462 (2008).                         Moreover, where

"the predominant purpose of the new rule is to deter illegal




                                          31                                     A-3797-13T4
police      conduct,"          that       "deterrence         purpose       will        not     be

appreciably      advanced           by    retroactive         application          to    police

conduct that has already occurred, [and] the new rule will be

given prospective effect only."                       State v. Young, 87 N.J. 132,

141 (1981).

      In    addition,         as    set   forth      above,    the     timing      of    when    a

person     receives       a    copy       of   the    AIR     has    no     effect      on     the

reliability or accuracy of the already-determined test results.

Thus, the new rule is not "'designed to enhance the reliability

of   the    factfinding            process,'"        and    "'the    old     rule       did    not

"substantially"           impair      the      accuracy       of     [the    fact-finding]

process.'"     State v. Fortin, 178 N.J. 540, 648 (2004).

      Based on all those considerations, if we were to adopt a

new rule imposing such an obligation and requiring suppression,

we would apply it "prospectively only."                       Molina, supra, 187 N.J.

at   543.        Accordingly,              "the       AIR     report       resulting          from

[defendant's] test" would still be "admissible against [her]."

State v. Pollock, 407 N.J. Super. 100, 107 (App. Div. 2009)

(applying     only    prospectively            Chun's       recalibration       requirement

for the Alcotest).

                                                  VII.

      Although       we       reverse       the      suppression       ruling       here,       we

recognize that providing the tested person with a copy of the




                                               32                                       A-3797-13T4
AIR   at    the    police     station      does   provide     benefits    in   limited

circumstances, as set forth above.                Moreover, it may not require

significant effort by law enforcement to provide a copy of the

AIR to the arrestee at the police station.                            Like the State

Police ADTU, the Attorney General recommends that "the defendant

should     be     given   a   copy    of    the   [AIR]."10      We    urge    all   law

enforcement officers to follow their recommendations.

      We reverse the suppression order of the Law Division, and

remand to the Municipal Court for defendant to comply with the

terms      of   the   sentence       that    court   imposed     for     her   per     se

violation under N.J.S.A. 39:4-50(a)(1)(ii).




10
   Attorney General Guideline: Prosecution of DWI & Refusal
Violations,   at    20,   (Jan.    24,   2005),   available at
http://www.state.nj.us/lps/dcj/agguide/d-10jd-dwi-2005.pdf.



                                            33                                 A-3797-13T4
________________________________________
SABATINO, P.J.A.D., concurring.

       I join in the result, which reinstates this defendant's

conviction of a DWI offense under N.J.S.A. 39:4-50(a)(1)(ii).                             I

write separately because I differ with portions of the main

opinion's discussion within Parts IV and V.

       My colleagues rightly acknowledge that "providing a copy of

the AIR to the suspect at the police station, rather than on

request    or    in     discovery,        may      produce     benefits      in    limited

circumstances."          Ante     at     __   (slip     op.    at    30).     They    also

properly recognize that both the State Police and the Attorney

General prescribe the AIR be supplied contemporaneously to the

arrestee when the test is completed.                         Id. at __ (slip op. at

33).      They also recognize, as the State's attorney conceded

before    us    at     oral   argument,        that    supplying       the   AIR    to   an

arrestee on the spot is not apt to impose a great burden on the

police.        Ibid.      They    urge,       as   I   do,    that    this   recommended

practice be followed.            Ibid.

       I part company with my colleagues because I support the Law

Division judge's conclusion that immediate turnover of the AIR

to   an   arrestee       should    be     more      than      an    aspirational     goal.

Because alcohol in a human's body dissipates quickly, time is of

the essence.         See Missouri v. McNeely, ___ U.S. ___, ___, 133 S.

Ct. 1552, 1560, 185 L. Ed. 2d 696, 706 (2013) ("It is true that
as a result of the human body's natural metabolic processes, the

alcohol level in a person's blood begins to dissipate once the

alcohol is fully absorbed and continues to decline until the

alcohol is eliminated."); Schmerber v. California, 384 U.S. 757,

771, 86 S. Ct. 1826, 1836, 16 L. Ed. 2d 908, 920 (1966) (noting

that "the percentage of alcohol in the blood begins to diminish

shortly after drinking stops, as the body functions to eliminate

it   from    the   system");    see     also     Chun,    ante,   194    N.J.     at    76

(stating that "[e]limination of alcohol also starts as soon as

the person begins to drink").

       An    arrestee's   right       to   obtain    an     independent        test    to

challenge the police's AIR readings is essentially worthless if

the arrestee does not act right away.                    The AIR contains various

forms of material information, including the critical BAC levels

that can indicate whether it might be worthwhile for the driver

to take immediate action to obtain an independent test or to

have her blood drawn for that purpose.                   See Chun, ante, 194 N.J.

at 82-83 (describing the information contained in the AIR); see

also   Ramsey,     N.J.   Drunk    Driving       Law,     ante,   §    10:25    at     390

(stating that "[t]he alcohol influence report (AIR) is the key

piece of discovery in an Alcotest 7110 case").

       For    instance,    if     the      BAC   levels     are       borderline,      an

independent test potentially might produce levels that are below




                                            2                                   A-3797-13T4
the legal limits, thereby rebutting the State's burden to prove

guilt of DWI beyond a reasonable doubt.            State v. Campbell, 436

N.J. Super. 264, 269 (App. Div.) (stating that "we have long

required the State to establish the elements of a DWI offense by

the heightened criminal standard of proof beyond a reasonable

doubt"), certif. denied, ___ N.J. ___ (2014).                 Conversely, the

AIR may show that the driver's BAC is way above the limits, and

further indicate no irregularity on its face, thereby suggesting

that independent testing will be a fruitless exercise.

      Because DWI based on BAC levels is essentially a strict

liability offense, the arrestee should act quickly, most likely

in   an   emergent    telephone    consultation    with   an    attorney,     to

decide whether to pursue independent testing.              It is therefore

important that the AIR be turned over to the arrestee as soon as

the report is generated by the Alcotest device.                 In fact, the

standard    documents    presently     used   statewide   in     the   process

reflect that a copy of the AIR is to be given on the spot to the

driver.    See ante at ___ (slip op. at 5) (noting, in this case,

the printing of the phrase "Copy Given to Subject" at the bottom

of the AIR).

      Unlike   my    colleagues,   I   am   not   persuaded    that    the   "on

request" language in N.J.S.A. 39:4-50.2(b) should be read to

signify that the police are to turn over the AIR report only




                                       3                               A-3797-13T4
upon an arrestee's request.1                 Of course, if an arrestee makes

such a request, the report certainly should be supplied.                              That

said, I doubt that the Legislature has foreclosed the Judiciary,

within its supervisory authority over the adjudication of DWI

cases, from directing that the AIR be routinely turned over

after the test has been administered, regardless of whether the

arrestee specifically requests it.                      What could be the harm in

that?

      I do not construe the statute to require the police to

withhold the AIR unless the arrestee specifically requests it.

Nor   do   I    read    the     statute   to      preclude     the     Judiciary      from

enhancing      the     procedural     protections         afforded     to   the    tested

driver.    Indeed,       the    Supreme      Court      imposed   in    Chun      various

procedural and administrative requirements concerning the use of

the     Alcotest     that      go   beyond       what    the   statutes     explicitly

require.       See Chun, ante, 194 N.J. at 145 (noting, among other

things,     that the State must produce the most recent calibration

report, the most recent new standard solution report, and the

certificate of analysis of the 0.10 simulation solution used in

defendant's test prior to admission of the AIR).

1
  The present situation differs from Spell, ante, 395 N.J. Super.
at 337, cited by my colleagues, see ante __ (slip op. at 23),
because automatic turnover of the AIR is, in my view at least,
mandated by the Supreme Court in Chun, ante, 194 N.J. at 82-83,
and is not an innovation being crafted by this court.



                                             4                                    A-3797-13T4
    Like the Law Division judge, I read the Court's statement

in Chun that the Alcotest "operator must retain a copy of the

AIR and give a copy to the arrestee," id. at 82, as a sensible

mandate, not a mere recommendation.                The term "must" within that

passage    is   consistent        with    that    interpretation.        See   Thomas,

ante,     188   N.J.    at   149-50;       Harvey,    ante,      30    N.J.    at    391

(observing that generally "the words 'must' and 'shall' are . . .

mandatory"). It is also consistent with the Special Master's

Report, ante.

    If      the       Supreme     Court     did      not   intend        to    require

contemporaneous turnover of the AIR, or if it agrees with my

colleagues that the statute forbids such a judicial gloss, then

perhaps the Legislature might revise N.J.S.A. 39:4-50.2(b) to

require    such      automatic    turnover.        Doing   so    would    be   in    the

interests       of     justice,     fairness,        and   the        attainment      of

evidentially-sound dispositions in DWI cases.

    Despite the grave dangers and undeniable societal costs of

drunk driving, it is well established that judicial suppression

of BAC results may be an appropriate remedy in certain cases.

See McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1567-68, 185

L. Ed. 2d at 714-15; see also Chun, ante, 194 N.J. at 145-49.

Of course, the State may still prove guilt by other means, such

as observation evidence, as potentially could have been done




                                           5                                   A-3797-13T4
here. See, e.g., State v. Kent, 391 N.J. Super. 352, 383-85

(App. Div. 2007).

    That    said,      I    do   not    construe    the   law    to    require    the

automatic suppression of an Alcotest's BAC readings in every

instance where, as in the present case, the police slip up and

neglect   to    give       the   AIR   contemporaneously        to    the   arrested

driver.    As my colleagues point out, suppression of the BAC

readings is not an appropriate remedy unless a defendant shows

that a procedural error caused him or her actual prejudice.

Ante at ___ (slip op. 24); see also Greeley, ante, 178 N.J. at

45-46.

    No such actual prejudice is demonstrated in the present

record,    in   which       defendant's       BAC   reading     of    .12   is    not

borderline and where no arguable irregularity on the face of the

AIR has been identified.               In this respect, I believe the Law

Division judge erred in treating the lack of turnover of the AIR

as a compulsory basis for suppression. Instead, a case-by-case

assessment of prejudice should be undertaken before the Alcotest

results are excluded.            An inconsequential failure by the police

to turn over the AIR report at the station house should not

jeopardize an otherwise valid DWI prosecution.

    I also agree with my colleagues, see ante at ___ (slip op.

at 31-32), that principles of suppression, if they were to be




                                          6                                 A-3797-13T4
adopted   in   this   context,   would   be   prospective   only,   thereby

affording law enforcement officials a reasonable opportunity to

adjust to such potential future consequences.           Since the Office

of Attorney General (which, notably, is also the issuer of the

Standard Statement that must be read to the arrestee) and the

State Police already call for the AIR to be turned over on the

spot to arrestees, it does not appear that a lengthy period of

transition would be required.

    Having made these observations, I join in the reversal of

the Law Division's judgment insofar as it vacated defendant's

conviction under N.J.S.A. 39:4-50(a)(1)(ii).




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