                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3802-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KEITH R. GREENWOOD,

     Defendant-Appellant.
___________________________

                    Submitted February 14, 2019 – Decided August 12, 2019

                    Before Judges O'Connor and Whipple.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Municipal Appeal No. 17-
                    037.

                    Helmer Conley & Kasselman, PA, attorneys for
                    appellant (Patricia B. Quelch, of counsel and on the
                    brief).

                    Fredric M. Knapp, Morris County Prosecutor, attorney
                    for respondent (Paula Cristina Jordao, Assistant
                    Prosecutor, on the brief).

PER CURIAM
       Defendant Keith Greenwood appeals from his conviction of driving while

intoxicated (DWI), N.J.S.A. 39:4-50(a). We affirm.

                                        I

       The evidence adduced at the municipal court trial pertinent to the issues

on appeal is as follows. Sergeant Steven Catalano of the Roxbury Township

Police Department testified that, on November 12, 2015, he pulled over a car

defendant was operating, because defendant was driving too closely to the

vehicle Catalano was operating 1 and was improperly using his high beams. In

addition, defendant's front headlight assembly was "completely out." During

the course of the motor vehicle stop, Catalano detected the odor of alcohol on

defendant's breath. Defendant initially denied drinking but then admitted he had

had "some drinks."

       After administering field sobriety tests, Catalano concluded defendant

was under the influence of alcohol. Catalano placed defendant under arrest and

read to him his Miranda2 rights. Defendant was taken to the Roxbury Police

Department so the police could administer a breathalyzer test to him. However,

before the test started, defendant appeared to have some difficulty breathing and


1
    Catalano was driving an unmarked vehicle at the time.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-3802-17T1
                                        2
was "dry heaving." Therefore, the police called a local rescue squad, which

transported defendant to a nearby hospital.

      Maricel Jerez, one of the nurses who cared for defendant at the hospital,

testified that when defendant was admitted to the emergency room, he was

complaining of chest pain and anxiety.         Patrolman Scott Weaver, who

accompanied defendant to the hospital, testified that after defendant was

stabilized, Weaver showed to and went over with defendant the "voluntary

consent to draw blood form."3 Defendant consented to and signed the form.

Weaver stated defendant did not make any statements indicating an

unwillingness to either sign the form or to have his blood drawn.

      After defendant signed the form, Weaver handed a "blood draw kit" to

Jerez, and watched her draw two vials of blood from defendant.           Weaver

transported the vials back to the police department, where they were refrigerated

and ultimately taken to the New Jersey State Police, Office of Forensic Sciences.

      Jerez testified that after she withdrew blood from defendant's arm, she

handed the vials to a police officer. Because relevant to one of the issues on

appeal, we note that, when she gave a summary of how she drew blood from



3
 Neither a copy of this form nor any other document admitted into evidence
was provided in the record.
                                                                         A-3802-17T1
                                       3
defendant, she did not specifically mention whether she "rocked" the vials back

and forth before handing them over to the officer. Finally, Jerez testified

defendant was discharged from the hospital approximately one hour later.

      Lisa Comunale, a forensic scientist of the New Jersey State Police, Office

of Forensic Sciences, testified she was the scientist who tested and analyzed

defendant's blood. She noted each vial contained seven milliliters of blood, and

that an additive was present in each vial in order to preserve the blood.

Consistent with the protocol in the office, she tested defendant's blood twice.

      Comunale noted she worked for the State Police in the same capacity as a

forensic scientist from 2003 to 2012. She has a Bachelor of Science and a

Master's Degree in forensic science. In 2012, she took a three-year leave of

absence. At the time she left in 2012, she was "certified"; she did not indicate

what it meant to be certified. However, when she returned in 2015, she had to

be recertified because of her three-year absence. When she analyzed defendant's

blood in November 2015, she had not yet been recertified. Therefore, Joseph

Messana, another person in the department who was certified, had to and did

review her work to ensure the results of her testing were accurate.

      Messana, who in 2015 had been a forensic scientist of the Office of

Forensic Sciences for twenty-eight years and was certified, testified he reviewed


                                                                         A-3802-17T1
                                        4
Comunale's work and determined she correctly analyzed defendant's blood. He

then affixed his signature to and thereby certified the laboratory report setting

forth the test results of defendant's blood. He stated the average of the two tests

Comunale conducted on defendant's blood was .163, plus or minus .003, and

that the probability defendant's blood alcohol value was in fact between .160

and .166 was ninety-nine percent.

      After Messana signed and generated the laboratory report, Comunale's

analysis was peer reviewed by her supervisor. Thereafter, her analysis was

reviewed by another scientist.      Both the former and the latter approved

Comunale's results.

      Defendant called Gary Lage as his expert witness. The municipal court

judge found Lage to be an expert in the fields of pharmacology and toxicology.

Defendant sought to have Lage qualified as an expert in "laboratory procedures

and the correct procedures in which blood is supposed to be analyzed in a lab,"

but the judge declined to do so.

      Lage testified that he was present in the court room when Nurse Jerez

testified about how she drew blood from defendant. He noted her testimony

failed to reveal whether she followed the "proper protocol." Lage testified vials

come with additives in them in powder form. He claimed the "recommended


                                                                           A-3802-17T1
                                        5
protocol" requires that, after blood is drawn into a vial, the vial be held between

a person's thumb and forefinger and "rocked back and forth" a minimum of ten

times so the additives will dissolve in the blood. Lage did not identify the source

of such protocol.

      According to Lage, there is the "potential" that any glucose in a patient's

blood will turn into ethanol.     The additives preclude glucose from being

converted into ethanol, which might cause a higher blood alcohol reading than

would have been otherwise. However, to be effective, the additives must be

dissolved in the blood in accordance with the protocol.

      Lage further testified there were only seven instead of eight milliliters of

blood in each tube. He claimed the higher concentration of additives could have

"potentially" caused a false elevation of blood alcohol, and thus affected the

reliability of the blood alcohol analysis.     However, he then conceded that

dissolving additives in seven instead of eight milliliters of blood was not

significant.

      Lage was critical of the fact it was Messana and not Comunale who signed

and certified the laboratory report, and that the peer review of Comunale's work

was not done until after the laboratory report was certified. We note Lage was

not qualified by the court to render an opinion on laboratory procedures.


                                                                           A-3802-17T1
                                        6
Further, Lage did not opine that certifying the laboratory report before the peer

review in fact affected the reliability of the information in such report.

Significantly, Lage was not critical of Comunale's analysis of defendant's blood.

      Relying upon Catalano's testimony detailing how poorly defendant fared

when undergoing the field sobriety test, the municipal court judge found

defendant had been under the influence of alcohol at the time he was pulled over.

The judge convicted him of driving while intoxicated, N.J.S.A. 39:4-50, as well

as failure to maintain lamps, N.J.S.A. 39:3-66; following too closely, N.J.S.A.

39:4-89; improper use of high beams, N.J.S.A. 39:3-60; and reckless driving,

N.J.S.A. 39:4-96.

      The municipal court judge rejected the State's contention there was proof

beyond a reasonable doubt defendant's blood alcohol concentration (BAC) was

above 0.08 percent, the allowable limit pursuant to N.J.S.A. 39:4-50(a). The

judge stated he was not satisfied the blood was drawn in accordance with

appropriate procedure, a decision he based upon "prior case law and prior

procedure that has been presented before the court." The judge did not cite the

case law that he claimed enabled him to find that the blood was not drawn in

accordance with the appropriate procedure. The municipal court judge also




                                                                         A-3802-17T1
                                       7
rejected the premise defendant's BAC was above 0.08 percent on the ground

Comunale was not certified when she analyzed defendant's blood.

       Defendant appealed his convictions to the Law Division for a trial de

novo. Following that trial, the judge in the Law Division concluded the field

sobriety test results did not provide sufficient grounds to convict defendant of

DWI, but the judge determined there was evidence beyond a reasonable doubt

that defendant's BAC was above 0.08 percent – as found by the forensic

scientists – when he was pulled over.       The Law Division judge convicted

defendant of driving while intoxicated, N.J.S.A. 39:4-50(a); failure to maintain

lamps, N.J.S.A. 39:3-66; following too closely, N.J.S.A. 39:4-89; and improper

use of high beams, N.J.S.A. 39:3-60.

                                            II

       On appeal, defendant asserts the following points for our consideration:4

             POINT I: THE SUPERIOR COURT, LAW
             DIVISION, COULD NOT LEGALLY FIND
             DEFENDANT GUILTY BASED UPON A PER SE
             VIOLATION BECAUSE THE BLOOD TEST
             RESULTS WERE SUPPRESSED BELOW AND THE
             TRIAL DE NOVO WAS LIMITED TO THE
             FINDING OF GUILTY BASED UPON
             OBSERVATIONS ONLY.



4
    Defendant appealed only his conviction for DWI.
                                                                         A-3802-17T1
                                        8
            POINT II: THE TRIAL COURT ERRED BY NOT
            DISMISSING THE MOTOR VEHICLE
            SUMMONSES FOR VIOLATION OF
            DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

            POINT III: DEFENDANT'S CONSENT TO
            PROVIDING BLOOD WAS INVALID.

            POINT IV: THE BLOOD TESTS WERE INVALID.

      Having considered the record and applicable legal principles, we reject

defendant's arguments and affirm.

      An appeal of a municipal court conviction must first be addressed by the

Law Division de novo. R. 3:23-8. The role of the Law Division is to make

independent findings of facts and conclusions of law based on the record

developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333

(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law

Division on an appeal from the municipal court does not search the record for

error, or determine if there was sufficient credible evidence to support a

conviction. The Law Division is required to decide the case completely anew

on the record made before the municipal judge, "giving due, although not

necessarily controlling, regard to the opportunity of the" judge to evaluate

witness credibility. Johnson, 42 N.J. at 157; see also State v. Cerefice, 335 N.J.

Super. 374, 382-83 (App. Div. 2000). The Law Division judge performs "an


                                                                          A-3802-17T1
                                        9
independent fact-finding function in respect of defendant's guilt or innocence,"

and must "make his [or her] own findings of fact." State v. Ross, 189 N.J. Super.

67, 75 (App. Div. 1983).

      We review the Law Division's decision employing the "substantial

evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our

review is limited to determining whether there is sufficient credible evidence

present in the record to support the findings of the Law Division judge, not the

municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.

2005) (citing Johnson, 42 N.J. at 161-62).       However, we review the Law

Division's interpretation of the law de novo without according any special

deference to the court's interpretation of "the legal consequences that flow from

established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

      Defendant first contends the Law Division judge erred when he found

defendant violated N.J.S.A. 39:4-50(a) on the ground his BAC was above 0.08

percent when he was pulled over by Catalano, because the municipal court judge

suppressed the results of the blood test results and, "entered an acquittal of the

per se portion of the DWI statute."




                                                                          A-3802-17T1
                                       10
      First, even if the municipal court judge had suppressed the evidence of the

blood test results, the Law Division judge was free to make his own assessment

of the evidence in the record. "That is, indeed, the essence of a trial de novo,

which is based on the record in the municipal court." State v. Kashi, 360 N.J.

Super. 538, 545 (App. Div. 2003), aff'd 180 N.J. 45 (2004). As we stated in

Kashi, a trial de novo in this context "is not an appellate one; the Superior Court

judge does not affirm or reverse what occurred in the municipal court. Rather,

the Superior Court judge reviews the transcript and makes an independent

determination of the sufficiency of the evidence presented . . . ." Ibid.

      Here, that is what the Law Division judge did. He reviewed the transcript

and made an independent determination of the evidence presented. Of course,

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. Kashi, 180 N.J. 45, 48 (2004) (quoting

Johnson, 42 N.J. at 157), but none of the Law Division judge's findings

conflicted with that principal.

      Second, the municipal court judge did not suppress the evidence of the

blood test results. Defendant made a motion to suppress those results but it was

denied.   In support of his argument the judge did suppress those results,


                                                                            A-3802-17T1
                                       11
defendant quotes the following excerpt from the municipal court's judge's final

decision:

            [T]his court will not allow the results of the blood draw
            and its determination into the court's determination.
            And I find that those results are flawed for the reasons
            set forth on the record, and I am not going to consider
            that before the court.

      Defendant quotes the above statement out of context. The municipal court

judge did not find the blood test results reliable, but he did not suppress evidence

of them. The above excerpt merely references the judge's finding he did not

consider the results of the blood test to be trustworthy.

      The Law Division judge reviewed the same evidence de novo and found

the blood test results valid and reliable. Finally, even if the municipal court

judge had suppressed the evidence of the blood test results, that would not have

been an acquittal of the charge defendant operated a vehicle when his BAC was

above 0.08 percent. See Kashi, 360 N.J. Super. at 545-46.

      Defendant contends his consent to permit the police to draw blood from

him was not provided knowingly and voluntarily and, therefore, his consent was

not valid. Specifically, in his brief defendant claims that when he gave his

consent, he was having a "severe panic attack," and thus cannot be deemed

responsible for his actions. We reject this argument because there was no


                                                                            A-3802-17T1
                                        12
evidence from a medical expert establishing he had this condition, let alone that

such condition precluded him from rendering a knowing and voluntary cons ent.

       Defendant also argues the police violated his Fifth Amendment 5 rights

when they asked him if he consented to having his blood drawn. He notes he

had asserted his Fifth Amendment rights at the police station before he was taken

to the hospital, and that the police violated those rights by asking him a question

that elicited a response. We disagree. A police officer's request that a suspect

submit to a blood-alcohol test and the routine questions attendant to that request

are not interrogation within the meaning of Miranda. State v. Stever, 107 N.J.

543, 553 (1987). For that reason, the officer's request defendant submit to a

blood test did not violate his Fifth Amendment rights.

       Defendant next argues the blood tests were invalid because, given she was

not certified, Comunale was not qualified to determine the blood alcohol content

of his blood sample. We disagree. First, defendant's own expert testified he did

not have an opinion about the quality of Comunale's analysis of defendant's

blood sample, and did not proffer any opinion her analysis was deficient in any

way.




5
    U.S. Const. amend. V.
                                                                           A-3802-17T1
                                       13
      Second, defendant does not cite and we were unable to find any legal

authority that requires a forensic scientist who performs the kind of analysis

Comunale conducted in this matter be licensed or certified by a state licensing

agency. Because the topic was not explored at trial, there is no evidence of what

the term "certified" as used by Comunale and Messana meant, which merely

may have been a reference to an internal certification process within the Office

of Forensic Sciences. Regardless, defendant's expert did not voice any criticism

of Comunale's ability to perform the subject analysis or of the analysis itself.

      Defendant argues that, according to Lage, there was no evidence Nurse

Jerez rocked the vials that contained his blood back and forth to effectuate

dissolving the additives in the blood. Thus, defendant maintains, the ethanol

found in his blood could have originated from glucose rather than from an

alcoholic beverage.

      We note the source of Lage's claim the vial should have been rocked back

and forth ten times as soon as blood is withdrawn is an unidentified

"recommended protocol." In our view, his testimony on this issue constituted

an inadmissible net opinion because there was no evidence of the source of that

protocol or standard. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 373 (2011) ("[A] trial court may not rely on expert testimony that . . . fails


                                                                           A-3802-17T1
                                       14
to establish the existence of any standard about which the expert testified.").

There is no indication of who authored the recommended protocol, and whether

such protocol is recognized and accepted within the medical community. In

essence, Lage merely provided a "bare opinion that has no support in factual

evidence or similar data . . . ." Id. at 372.

      We considered defendant's remaining arguments, and conclude they are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      We are satisfied there is sufficient credible evidence present in the record

to support the Law Division judge's findings. Clarksburg Inn, 375 N.J. Super.

at 639 (citing Johnson, 42 N.J. at 161-62).

      Affirmed.




                                                                          A-3802-17T1
                                        15
