Gerd defense in DWI not proven here
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.
NOT FOR PUBLICATION WITHOUT THE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
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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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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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
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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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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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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.
