                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5535-12T4

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             June 27, 2014
v.
                                          APPELLATE DIVISION
SCOTT CAMPBELL,

     Defendant-Appellant.
__________________________________

         Argued May 28, 2014     -   Decided June 27, 2014

         Before Judges Messano, Sabatino and Hayden.1

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Atlantic County,
         Summons No. 0112 209587-590.

         Brenden T. Shur argued the cause for
         appellant (Law Offices of John J. Zarych,
         attorneys; Mr. Shur, on the brief).

         Kathleen E. Bond, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (James P. McClain,
         Acting Atlantic County Prosecutor, attorney;
         Julie H. Horowitz, Special Deputy Attorney
         General/Acting   Assistant  Prosecutor,   of
         counsel and on the brief).

     The opinion of the court was delivered by

SABATINO, J.A.D.

1
  Judge Hayden did not participate in oral argument.    However,
with the consent of counsel, she has joined in this opinion. R.
2:13-2(b).
    In     this    appeal    of    his       drunk    driving        ("DWI")     conviction

under    N.J.S.A.        39:4-50(a),           defendant          presents        a      novel

constitutional      argument.           He    challenges         the    manner    in     which

Alcotest evidence of a driver's blood alcohol content ("BAC") is

admitted and relied upon at DWI trials in so-called "per se"

cases in our State involving a BAC measurement at or above .08

percent.

    Specifically,           defendant             argues      that      our      case       law

authorizing       the   admission       of    BAC    results      at    trial     when      the

prerequisites for the Alcotest's evidential admissibility are

shown    by       clear-and-convincing               proof,       coupled        with       the

conclusively incriminating treatment of a BAC at or above .08

percent under N.J.S.A. 39:4-50(a), combine to create an unfair

and constitutionally invalid situation.                      According to defendant,

these   aspects     of    our     DWI    statutes          and   case    law     improperly

relieve the State of its constitutional burden of establishing a

driver's guilt in per se cases by the more rigorous standard of

proof beyond a reasonable doubt.

    For the reasons that follow, we reject defendant's claim of

unconstitutionality, and affirm his conviction.

                                             I.

    On June 15, 2012, defendant Scott Campbell was driving a

motor vehicle in Hamilton Township in Atlantic County when he



                                              2                                       A-5535-12T4
was stopped by the police.2                 Police officers tested his breath

with the Alcotest device.             According to the State's submissions,

the test measured defendant's BAC at .12 percent, a level over

the .08 percent limit set forth in N.J.S.A. 39:4-50(a).

       Defendant was arrested and charged with DWI, N.J.S.A. 39:4-

50;3   reckless     driving,       N.J.S.A.           39:4-96;       failure     to   exhibit

documents,       N.J.S.A.    39:3-29;           and       careless    driving,        N.J.S.A.

39:4-97.        Defendant moved to suppress the Alcotest results in

municipal court.4         At defendant's request, the municipal court

stayed    the    matter     so    that     he       could    file    an    application      for

declaratory relief in the Law Division.                             Defendant then filed

such     an     application,       seeking           to     have     the    court     declare

unconstitutional      the        State's    reliance         in     per    se   prosecutions




2
  The sparse record supplied to us contains very little factual
information.   The record does not include, for example, police
reports or a transcript of the suppression motion hearing or
other proceedings in municipal court. In any event, the matters
presented on appeal concern purely legal issues.
3
  The parties' briefs and oral arguments on appeal suggest, more
specifically, that the State has been prosecuting defendant
under N.J.S.A. 39:4-50(a) for driving with a BAC at or above .08
percent, rather than attempting to prove that he was operating a
motor vehicle while he was actually "under the influence" of
alcohol.
4
  Defendant's brief indicates that the suppression motion was
denied, although no documentary support of that is included in
his appendix.



                                                3                                     A-5535-12T4
upon   Alcotest         BAC    results     admitted    into    evidence       by   only     a

clear-and-convincing proof standard.

       After      considering        the     parties'      submissions         and     oral

arguments,        the    Law     Division     rejected        defendant's      claim      of

unconstitutionality and denied declaratory relief.                             Defendant

then entered a conditional guilty plea, preserving his right to

appeal the ruling on the constitutional issue.                          Sentencing was

stayed in anticipation of that appeal, which defendant is now

pursuing.

       In   his    brief       on   appeal,       defendant    makes    the    following

singular argument:

             BECAUSE THE ALCOTEST IS CONSIDERED RELIABLE
             BASED   SOLELY  ON   CLEAR   AND   CONVINCING
             EVIDENCE, A DEFENDANT CANNOT BE FOUND GUILTY
             OF A PER SE VIOLATION BEYOND A REASONABLE
             DOUBT   BASED  UPON   THE  RESULTS   OF   THE
             ALCOTEST.

       We   reject       this    claim,     essentially       because    it    fails      to

distinguish       appropriately          between     (1)   the    State's      threshold

burden to meet the elements required by case law for admitting

Alcotest BAC results into evidence in a particular case, as

contrasted with (2) the State's ultimate burden of proof at

trial to establish defendant's guilt of a per se DWI offense

beyond a reasonable doubt.




                                              4                                    A-5535-12T4
                                     II.

       The opening portion of N.J.S.A. 39:4-50(a) specifies four

distinct alternative grounds for finding a motorist guilty of

DWI:

            Except as provided in subsection (g) of this
            section, a person who operates a motor
            vehicle   while   under   the  influence   of
            intoxicating         liquor,        narcotic,
            hallucinogenic or habit-producing drug, or
            operates a motor vehicle with a blood
            alcohol concentration of 0.08% or more by
            weight of alcohol in the defendant's blood
            or permits another person who is under the
            influence of intoxicating liquor, narcotic,
            hallucinogenic or habit-producing drug to
            operate a motor vehicle owned by him or in
            his custody or control or permits another to
            operate a motor vehicle with a blood alcohol
            concentration of 0.08% or more by weight of
            alcohol in the defendant's blood shall be
            subject [to the various discrete penalties
            enumerated in the statute.]

            [N.J.S.A. 39:4-50(a) (emphasis added).]

The constitutional issues now before us concern "per se" DWI

prosecutions     that   arise    under     the    second     basis   listed      in

N.J.S.A.    39:4-50(a),      i.e.,   cases       involving    the    defendant's

operation   of   a   motor   vehicle     while     having    "a   blood   alcohol

concentration of 0.08% or more by weight of alcohol in [his or

her] blood."5    Every state has a similar per se DWI statute.6


5
  We need not concern ourselves here with DWI prosecutions
pursued on alternative grounds, such as so-called "observation"
cases based on other non-BAC evidence of a defendant's
                                                    (continued)


                                       5                                  A-5535-12T4
    As the term "per se" indicates, in such cases the State

does not have to prove that the defendant driver with a BAC at

or above .08 percent was actually intoxicated or impaired while

he or she was behind the steering wheel.      State v. Tischio, 107

N.J. 504, 506 (1987); see also        State v. D'Agostino, 203 N.J.

Super.   69,   73   (Law   Div.   1984)   (noting   that   since    the

Legislature's amendment of the statute in 1983, in per se cases

"the issue no longer is whether the defendant was drunk . . .

[o]r whether he was under the influence of alcohol . . . [o]r

whether his driving ability was impaired in any fashion").            It




(continued)
impairment while driving.    See, e.g., State v. Kent, 391 N.J.
Super. 352, 384 (App. Div. 2007) (affirming a defendant's DWI
conviction based upon his erratic driving in causing a single-
car accident and a police officer's field observations of his
multiple signs of inebriation, despite the inadmissibility of
hearsay   laboratory  reports    measuring the   BAC  level  in
defendant's blood sample); see also State v. Bealor, 187 N.J.
574, 588-89 (2006) (finding that factual observations of
defendant's appearance and behavior, along with expert proofs
indicating the presence of a drug in defendant's system, were
sufficient to prove that defendant operated a motor vehicle
while under the influence of marijuana).
6
  "All 50 states and the District of Columbia have per se laws
making it [an offense] to drive with a blood alcohol
concentration (BAC) at or above a specified level, currently
0.08 percent (0.08 g alcohol per 100 ml blood)." Alcohol-
Impaired Driving: DUI/DWI, Ins. Inst. for Highway Safety,
Highway       Loss       Data      Inst.     (June      2014),
http://www.iihs.org/iihs/topics/laws/dui.




                                  6                           A-5535-12T4
suffices to prove that the driver's BAC measured at or in excess

of the prohibited level.

       Because of the conclusive nature of the BAC results, our

case law prohibits defendants from presenting "extrapolation"

counter-proof in an effort to show that they were not under the

influence   while     driving.         Tischio,       supra,       107     N.J.    at    506

(issuing    this    holding   in       the       context    of     the     formerly-used

Breathalyzer).       "[I]t is the blood-alcohol level at the time of

the . . . test that constitutes the essential evidence of the

offense."    Ibid.

       Although DWI cases are quasi-criminal rather than criminal

prosecutions,      our   courts        have       applied        certain     traditional

aspects of criminal law to DWI cases.                      In particular, 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.        State v. Howard, 383 N.J. Super. 538, 548

(App. Div.) (citing State v. Dively, 92 N.J. 573, 585 (1983);

State v. Di Carlo, 67 N.J. 321, 327 (1975); State v. Emery, 27

N.J. 348, 353 (1958)), certif. denied, 187 N.J. 80 (2006).

       The well-known standard of proof beyond a reasonable doubt

is the most rigorous burden of persuasion imposed by law.                                 "A

reasonable doubt is an honest and reasonable uncertainty in [the

fact-finder's] mind[] about the guilt of the defendant after




                                             7                                     A-5535-12T4
[the fact-finder has] given full and impartial consideration to

all of the evidence."        State v. Wakefield, 190 N.J. 397, 470

(2007) (quoting State v. Medina, 147 N.J. 43, 61 (1996), cert.

denied, 520    U.S. 1190, 117        S. Ct. 1476, 137     L. Ed. 2d 688

(1997)).      "Proof    beyond   a   reasonable   doubt   is    proof,     for

example, that leaves [the fact-finder] firmly convinced of the

defendant's guilt."      Ibid.   (quoting Medina, supra, 147 N.J. at

61).      "If, based on [the fact-finder's] consideration of the

evidence, [he or she is] firmly convinced that the defendant is

guilty of the crime charged, [he or she] must find [defendant]

guilty."     Ibid.     (quoting Medina, supra, 147 N.J. at 61); see

also Model Jury Charge (Criminal), "Reasonable Doubt" (1997).

       The current device widely used by police departments in our

State to measure BAC levels is the Alcotest.7                  The Alcotest

replaced the Breathalyzer years ago as the prevalent testing

device.

       In State v. Chun, 194 N.J. 54 (2008), the Court rejected

challenges to the scientific reliability of the Alcotest, after

extensive    hearings   before   a   special   master   and    the   master's

detailed fact-finding.       The Court held that the Alcotest "is

sufficiently scientifically reliable that its reports [measuring

7
  We are aware that the State is presently considering switching
to another device as the result of certain developments with the
manufacture of the Alcotest not relevant to this appeal.



                                      8                              A-5535-12T4
BAC levels] may be admitted in evidence."                       Id. at 148.          As a

predicate of that holding, however, the Court specified in Chun

three conditions that must be met in each case in order for

Alcotest     BAC    results      to   be       admitted    into     evidence.          In

particular, the Court held, as it had previously in Breathalyzer

cases, that the State must show 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."                Id. at 134 (citing Romano v.

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

      Notably, our case law has held that the results of a breath

test,    formerly     the   Breathalyzer,         now     the   Alcotest,      are    not

admissible     into    evidence       unless      the     State    shows      that    the

foundational       prerequisites      of   admissibility          are   satisfied      by

clear and convincing proof.             See Romano, supra, 96 N.J. at 89-

90.     The clear and convincing standard is less stringent than

proof beyond a reasonable doubt, but is more exacting than the

usual standard of mere "preponderance of the evidence" that is

applied in most civil matters.

      Evidence      that    is   "clear,       cogent,    certain,      and    definite

. . . will satisfy the clear and convincing standard of proof."

Bhagat v. Bhagat, 217 N.J. 22, 46 (2014); see also Model Jury

Charge (Civil), 1.19, "Burden of Proof – Clear and Convincing




                                           9                                   A-5535-12T4
Evidence"     (2011)     ("Clear     and    convincing      evidence       .    .   .   is

evidence so clear, direct, weighty in terms of quality, and

convincing as to cause you to come to a clear conviction of the

truth   of   the    precise     facts      in   issue.").      This       standard      of

admissibility       applies     to   Alcotest      evidence.        See        State    v.

Ugrovics, 410 N.J. Super. 482, 489 n.1 (App. Div. 2009) (noting

that "the State's burden of proof as to the admissibility of the

Alcotest     [specifically,      the    three     preconditions       set      forth    in

Chun] remains clear and convincing evidence") (citing Romano,

supra, 96 N.J. at 90-91).

      Defendant      argues     that    the     application    of     a     clear-and-

convincing standard of admissibility of Alcotest results in per

se DWI cases has the improper effect of relieving the State of

its more rigorous burden of proving a defendant's guilt beyond a

reasonable      doubt.     As    a     remedy,    he   suggests     that       Alcotest

results no longer be treated as per se conclusive evidence of a

.08   percent      BAC   violation,      but    instead     only    be    accorded       a

rebuttable presumption of correctness.8                   We reject defendant's

argument because it is based on a mistaken premise.




8
  Defendant cites, by comparison, case law under a prior version
of the DWI statute that used such a presumption before the per
se test was adopted.   See, e.g., State v. Protokowicz, 55 N.J.
Super. 598 (App. Div. 1959).



                                           10                                   A-5535-12T4
       Defendant presumes that once the trial court decides to

admit Alcotest BAC results into evidence, a finding of guilt is

automatic      and   there    is    nothing      that   the    accused     can       do   to

prevent that outcome.         This is not so.

       A court's decision to admit proof into evidence against a

party, even if it is over objection, does not preclude the party

from   disputing     the     strength     of    that    evidence    at    the    end      of

trial.     See N.J.R.E. 104(e) (making clear that a court's ruling

to admit proof into evidence does not limit the right of a party

to contest the "weight or credibility" of such evidence); State

v. Falcetano, 107 N.J. Super. 383, 388 (Law Div. 1969).                           Before

a final judgment of a defendant's guilt can be entered, the

evidence must have shown beyond a reasonable doubt that he or

she is guilty.

       Thus,   although      Alcotest     BAC    results      are   admissible        into

evidence    upon     a    proffer    by    the    State       satisfying       the    Chun

conditions      to    a    clear-and-convincing            degree,       the     State's

ultimate burden of proof at the end of trial is more rigorous.

After hearing all of the testimony and considering all of the

admitted exhibits, the judge ultimately must be persuaded that

the elements of the offense, including the defendant's offending

BAC level, have been proven beyond a reasonable doubt.




                                          11                                     A-5535-12T4
    A simple example will illustrate this point.                    Imagine that

a defendant contends that his BAC results are unreliable because

the police allegedly deviated from the procedures mandated by

Chun.     More specifically, suppose that he maintains that the

police failed to observe him for the required twenty minutes

before the Alcotest was administered.              See Chun, supra, 194 N.J.

at 79.    According to that defendant, he vomited or put something

in his mouth while he was out of the police officers' view a few

minutes before they tested his breath, thereby confounding the

BAC reading.

    Assume      further     that,    before    trial,      the      hypothetical

defendant moves to suppress the BAC readings.                 Suppose that the

judge hears testimony at the suppression hearing from one of the

police    officers,   who     asserts       that     he   watched      defendant

continuously before the test was administered and that defendant

did not vomit or put anything in his mouth during the pre-test

period.

    Based on the trial judge's preliminary impressions of the

officer's credibility at the suppression hearing, let us assume

that she is satisfied, to a clear-and-convincing degree, that

the officer is being truthful.          But the case is not necessarily

over.     For   instance,    after    the    State    rests    at    trial,   the

defendant might call other witnesses who were also in the police




                                      12                                A-5535-12T4
station at the relevant time.                Suppose those defense witnesses

testify that they saw the officers leave the room during the

twenty-minute pre-test interval, while the defendant vomited or

placed something in his mouth.               Or perhaps the defendant himself

takes   the     stand    and        credibly     insists     that     he     was      not

continuously     observed      by    the    police    for   the    required     twenty

minutes before the testing.                Or perhaps defendant presents at

trial   an    expert    witness,      who    persuasively         explains    how     the

police deviated from the protocol required by Chun.

    In this hypothetical situation, it is conceivable that the

trial judge might conclude, upon further reflection in light of

the evidence as a whole, that the defendant's .08 percent BAC

level   was    not     sufficiently        proven     by    the    State     beyond     a

reasonable doubt.       The judge's earlier decision to admit the BAC

proof  a ruling that is interlocutory in nature and surely can

be reconsidered  does not prevent the court from doubting the

strength of that admitted evidence at the end of the case.                             In

fact, the court can even reconsider its previous decision to

admit   the   evidence,     if      subsequent       developments     support       such

reconsideration.        See Cummings v. Bahr, 295 N.J. Super. 374,

384-88 (App. Div. 1996).

    To be sure, we are mindful that DWI defendants commonly do

not "hang back" and save until the defense case at trial their



                                            13                                A-5535-12T4
competing witnesses and arguments challenging the prosecution's

BAC results.      Such a strategy may pose risk, perhaps depriving

the defendant of a realistic chance to have the case dismissed

at the suppression stage.               Even so, regardless of the trial

strategies that may bear on the actual flow of evidence, our

conceptual     point   is      simple    and    unassailable:          the    court's

threshold      decision   to     admit    Alcotest     results   by     clear-and-

convincing     evidence     does   not     always     dictate    how    the     court

ultimately will regard that same proof at the end of trial, when

a more rigorous standard of persuasion applies.9

     We are not suggesting that courts will frequently admit BAC

results into evidence under the clear-and-convincing test, but

then conclude at the end of trial that such proof is inadequate

under    the   reasonable      doubt     standard.      Frequency      is    not   the

issue.      Our   point   is    that     the   two   standards   have       different

functions at different phases of the case.                Defendant's argument

9
  It is also possible that the judge may harbor slight doubts
when admitting the BAC results. Those doubts may not be enough
to upset the clear-and-convincing burden but, if they persist
and are reasonable, may cause the judge to acquit a defendant at
the end of trial.    Cf. N.J. Div. of Youth & Family Servs. v.
R.D.,   207  N.J.   88   (2011)  (analogously   recognizing  the
possibility that a trial judge's earlier finding of a
defendant's abuse and neglect in a Title 9 proceeding does not
preclude the judge from subsequently concluding that the
evidence is insufficient to establish such abuse and neglect in
a Title 30 guardianship trial, at which a more stringent burden
of proof governs).




                                          14                                 A-5535-12T4
incorrectly presumes that the admissibility ruling will always

control the guilt determination at the end.

      For these reasons, we discern no constitutional flaw in the

evidential aspects that govern per se DWI cases prosecuted in

our State.10    The State will always bear in each prosecution the

burden of proving a defendant's guilt beyond a reasonable doubt.

The   fact   that   a   somewhat   lower   proof   standard   is   used   for

admitting the BAC results into evidence does not dilute that

ultimate burden.

      Affirmed.     Remanded for the imposition of sentence.           We do

not retain jurisdiction.




10
   Significantly, defendant cites no case from any other
jurisdiction with a per se DWI statute that has adopted his
novel argument.



                                     15                             A-5535-12T4
