                                NOT FOR PUBLICATION WITHOUT THE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-3345-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

GEORGE GINDHART,

     Defendant-Appellant.
___________________________

                   Submitted March 3, 2020 – Decided May 11, 2020

                   Before Judges Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Municipal Appeal No. 12-
                   11-17.

                   Sitzler & Sitzler, attorneys for appellant (James J.
                   Gerrow, Jr., on the brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (James E. Moore, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following a trial in the municipal court and a trial de novo on the

municipal court record in the Law Division, defendant George Gindhart was

convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and sentenced

as a third-time offender. As part of his sentence, the court revoked defendant's

driver's license for ten years, required him to serve 180 days in the county jail,

ninety of which could be served in an in-patient program, and referred him to

the Intoxicated Driver Resource Center.

      Defendant appeals and argues that the Alcotest, on which his conviction

was based, was unreliable for two reasons. First, he contends that the testing

procedures were not video recorded. Second, he suffers from gastroesophageal

reflux disease (GERD) and argues that condition may have contaminated the

breath samples. We reject both these arguments and affirm.

      In the Law Division, Judge Sarah Beth Johnson made detailed findings of

fact, which she set forth in a thorough written opinion issued on January 9, 2019.

Our review of the record establishes that all those findings are supported by

substantial credible evidence in the record. Accordingly, we need not detail the

facts and will only give a brief summary.

      On January 28, 2016, defendant had two encounters with Police Officer

Thomas Flounders and Police Officer Jerald Garriott in North Wildwood. He


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was first found in his car outside his vacation home at approximately 1:00 a.m.

in the morning. Both officers smelled alcohol and noted his slurred speech.

Officer Flounders also observed that defendant had bloodshot eyes. Officer

Garriott directed defendant to go into his home and not to drive. Approximately

one hour later, Officer Flounders saw defendant's car driving on a road without

its headlights on. The officer followed the car and saw it run a stop sign. Officer

Flounders then signaled for the car to pull over and called Officer Garriott to

join him. The officers again noted that defendant smelled of alcohol, had slurred

speech, and bloodshot eyes. Defendant was directed to engage in several field

sobriety tests that he failed. Accordingly, the officers arrested defendant on

suspicion of driving while under the influence of alcohol.

      At the police station, defendant agreed to take an Alcotest.         Officer

Garriott then conducted the appropriate pre-testing procedures, including

observing defendant for twenty minutes. The test results showed that defendant

had a blood alcohol concentration of .13 percent.

      At the trial in the municipal court four witnesses testified. The State

called Officer Garriott and Officer Flounders and defendant testified and called

an expert witness. The municipal judge and the Law Division judge found both

officers credible. Both judges also found that defendant was not credible in


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                                        3
some of his testimony and was particularly not credible in describing the

symptoms and effect of his GERD.

      As already noted, on this appeal defendant makes two arguments. First,

he contends that we should create a new rule requiring that the administration

of Alcotests be video-recorded and, if they are not, an adverse inference should

arise that the procedures were not properly followed. Second, defendant argues

that the Law Division erred in not accepting his testimony and his expert's

testimony that his GERD may have contaminated the Alcotest. As previously

noted, we are not persuaded by either of these arguments.

      We apply a deferential standard of review when reviewing the factual

findings and credibility findings following a trial de novo in the Law Division.

State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Adubato, 420 N.J. Super.

167, 176 (App. Div. 2011). Accordingly, we will not disturb factual findings

that are supported by sufficient credible evidence in the record. Adubato, 420

N.J. Super. at 176 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Where

both a municipal judge and a Law Division judge have found a witness credible,

we owe particularly strong deference to the Law Division judge's credibility

findings. Locurto, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123,

128-29 (1952)). We review the Law Division judge's legal conclusions de novo.


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                                       4
See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010) (citation

omitted).

      Defendant's first argument presents a question of law. He argues that we

should create a new rule and require the State to videotape the administration of

an Alcotest if video equipment is available. If the State fails to create such a

video record, defendant contends that an adverse inference should arise tha t the

State did not fully comply with the procedural requirements established in State

v. Chun, 194 N.J. 54 (2008). In making his argument, defendant tries to draw

an analogy to the rules requiring or permitting contemporaneous electronic

recording of custodial interrogations and out-of-court identifications. See R.

3:17 (requiring electronic recording of custodial interrogations when the suspect

is charged with certain crimes such as murder and kidnapping); R. 3:11

(allowing electronic recording of out-of-court identifications "if feasible").

      We reject defendant's argument for several reasons. First and foremost,

our Supreme Court has never required such video recordings of Alcotests. As

demonstrated in Chun and its progeny, the procedures for the Alcotest have been

zealously debated and rigorously reviewed. See State v. Cassidy, 235 N.J. 482

(2018); State v. Kuropchak, 221 N.J. 368, 383-84 (2015) (holding that Alcotest

readings are reliable and laying out the "mandatory guidelines for establishing


                                                                          A-3345-18T4
                                        5
the Alcotest's reliability").   The Court has imposed numerous procedural

requirements but never required the recording of the administration of the

Alcotest.

      Second, we discern no good public policy reason for requiring such a

recording procedure. The State has the burden to establish that the Alcotest is

properly administered and the equipment is properly tested and in working

order. See State v. Campbell, 436 N.J. Super. 264, 270 (App. Div. 2014)

(quoting Chun, 194 N.J. at 134). Adding a recording requirement would impose

a burden with no showing that it would improve the administration of the test.

Moreover, it would run counter to the well-established policy of New Jersey

discouraging drunk drivers by imposing a procedure that has no clear benefit.

      Finally, as demonstrated by this case, defendant's right to a proper

administration of the test is protected by the current procedures and there is no

need for an additional requirement. Judge Johnson found that the State had

presented clear and convincing evidence that Officer Garriott was properly

certified to perform such tests, observed defendant continuously for twenty

minutes immediately prior to taking his breath samples, and credibly testified

that defendant did not put anything in his mouth, hiccup, belch, or do anything

else that would have required restarting the observation period. Accordingly,


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                                       6
the officer conducting the Alcotest complied with all the procedures required by

Chun.

        Defendant's second argument is essentially a fact argument. Defendant

contends that he suffers from GERD and that condition may have contaminated

his breath samples. Judge Johnson rejected that argument based on factual

findings. First, she agreed with the municipal judge and found defendant to be

incredible regarding his descriptions of his symptoms of GERD at the time of

his arrest. Second, Judge Johnson rejected defendant's expert's testimony. In

that regard, defendant called Dr. Lance Gooberman as an expert witness. Dr.

Gooberman is a medical doctor who is a general practitioner specializing in

addiction medicine with experience in dealing with the effects of alcohol and

other drugs on the human body.

        Dr. Gooberman testified that the breath of someone suffering from GERD

could be continuously contaminated with alcohol from the stomach and that the

contamination might not be detected by the Alcotest. Judge Johnson rejected

that testimony as a net opinion because it was not based on any scientifically

reliable evidence supporting the assertion that GERD causes falsely elevated

Alcotest readings.    In making that finding, Judge Johnson noted that Dr.

Gooberman acknowledged that he had performed no scientific research himself


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                                       7
and he was relying on a 1987 study from Australia that predated the special

master's report leading to the Chun decision.

      We agree with Judge Johnson that Dr. Gooberman's testimony in this

matter was a net opinion not supported by scientifically reliable data or research.

See N.J.R.E. 703; State v. Townsend, 186 N.J. 473, 494-95 (2006). Indeed, Dr.

Gooberman acknowledged that his opinion that defendant's Alcotest reading was

consistent with alcohol contamination from GERD was unsupported by

scientific research.

      Affirmed.




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