                                NOT FOR PUBLICATION WITHOUT THE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-1685-17T1


STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

STEPHEN D. WOOD,

     Defendant-Appellant.
________________________

                   Submitted September 27, 2018 – Decided June 12, 2019

                   Before Judges O'Connor and Whipple.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Morris County, Municipal Appeal No. 17-
                   010.

                   Michael A. Grasso, attorney for appellant.

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

PER CURIAM
      Defendant Stephen D. Wood appeals his conviction for driving while

intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Law Division that

followed his conviction in municipal court.1 We affirm.

      The record reveals that on March 11, 2016, Patrolman Thomas DeNicola of

the Roxbury Police Department was dispatched to investigate an automobile

accident. While on the scene, DeNicola ascertained defendant had operated one of

the cars involved in the accident, and noted defendant had slurred speech,

bloodshot and watery eyes, and that his breath smelled of alcohol. After he refused

to submit to a field sobriety test, defendant was arrested for DWI and taken to the

Roxbury Township Police Department.

      DeNicola attempted to use an Alcotest 7110 MKIII-C breath-testing device

(device) at the police station to determine defendant's blood alcohol content

(BAC), but the machine did not operate properly. DeNicola transported defendant

to the Mount Arlington Police Department, where he successfully used Mount

Arlington's device to ascertain defendant's BAC. The Alcohol Influence Report

(AIR) generated by the device revealed defendant's BAC was 0.11%, which is

above the legal limit prescribed by N.J.S.A. 39:4-50(a). Defendant was then

charged with DWI and careless driving.

1
   Defendant was also convicted in municipal court of careless driving,
N.J.S.A. 39:4-97, but did not challenge such conviction.
                                       2                      A-1685-17T1
      During the municipal court trial, DeNicola provided various details about the

device used to test defendant at the Mount Arlington Police Department, and

identified various documents, subsequently placed in evidence, that yielded

additional information. These documents included the Calibration Record for the

device, which revealed it had last been calibrated in January 2016. That record

also indicates the device had been calibrated with an Alcotest 7110 black key

temperature probe and a digital thermometer. The serial numbers for the

temperature probe and the digital thermometer were provided in the Calibration

Report.

      Other documents showed the temperature probe referenced in the

Calibration Report received a certificate of accuracy in October 2015; the

certificate stated the probe was tested for accuracy with instrumentation traceable

to NIST. The digital thermometer referenced in the Calibration Report received a

certificate of calibration in August 2015; the certificate stated the thermometer was

calibrated using instruments traceable to NIST. The State provided a certificate of

accuracy for another temperature probe, but such probe was not mentioned in the

Calibration Report.    However, the latter probe was tested for accuracy with

instrumentation traceable to NIST in August 2015.




                                         3                                 A-1685-17T1
       It is not disputed the device used the software known as New Jersey

Firmware version 3.11 (Firmware).      The State provided to defendant during

discovery the three core foundational documents, see State v. Chun, 194 N.J. 54,

154 (2008), as well as the twelve foundational documents, id. at 153. All of these

documents were placed in evidence during the municipal court trial.

       Defendant presented testimony from an expert who challenged the results of

defendant's test, because the AIR did not include the serial number of the

temperature probe used on the device at the time defendant was tested. The expert

claimed the absence of such information on the AIR deprived defendant of

knowing which of the two temperature probes was used on the device; thus,

defendant was precluded from discovering whether the probe that was actually

used was functioning properly when defendant's BAC was tested. The expert

conceded the Firmware was not programmed to include such information on an

AIR.

       The municipal court judge concluded there was sufficient evidence to

find defendant guilty of a per se DWI. On such charge, the judge sentenced

defendant to a two-year driver's license suspension, thirty days of community

service, one year of using an ignition interlock unit, forty-eight hours at the




                                        4                               A-1685-17T1
Intoxicated Driver's Resource Center, and to pay the applicable fines, costs,

and surcharges.

      Defendant appealed his conviction for DWI to the Law Division for a

trial de novo.     Following that trial, the Law Division judge upheld the

municipal court judge's determination in a written decision.            Among other

things, the Law Division judge observed there is no legal authority to support

defendant's position that the State's failure to identify on the AIR the specific

temperature probe used on the device to test defendant's BAC invalidates the

results of such test.

      On    appeal,     defendant   raises       the   following   argument   for    our

consideration:

             POINT I: SINCE THE STATE CANNOT PROVIDE
             THE REQUISITE IDENTIFICATION PROOFS AS
             TO WHAT TEMPERATURE PROBE WAS USED
             DURING THE DEFENDANT'S BREATH TEST,
             THE RESULTS OF THE BREATH TEST ARE
             INADMISSIBLE IN THIS CASE.

      After examining the record and applicable legal authority, we conclude

defendant's contention is without sufficient merit to warrant discussion in a

written opinion, see Rule 2:11-3(e)(2), and affirm defendant's conviction for

DWI for substantially the same reasons expressed by the Law Division judge

in his written decision.

                                             5                                A-1685-17T1
Affirmed.




            6   A-1685-17T1
