STATE OF NEW JERSEY v. DOW PRUITT (2010)

Defendant, Dow Pruitt, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated, N.J.S.A. 39:4-50(a).   Defendant was sentenced as a third offender to a $1000 fine, $33 court costs, $50 VCCB penalty, $200 DWI surcharge, $75 Safe Neighborhood Fund Assessment, ten-year driver's license suspension, and 180 days imprisonment in the county jail, or, alternatively, 90 days in the county jail followed by 90 days of inpatient alcohol treatment.   Defendant's sentence was memorialized by the October 29, 2009 order of the Law Division.

Defendant presents the following arguments on appeal:

POINT I

THE DEFENDANT SHOULD HAVE BEEN FOUND NOT GUILTY AS THE ONLY EVIDENCE OFFERED AS TO HIS GUILT FOR DWI WAS UNRELIABLE.

POINT II

THE STATE FAILED TO OFFER ANY TESTIMONY TO REBUT THE TESTIMONY OF DEFENSE EXPERT RICHARD SAFERSTEIN, Ph.D., AS SUCH THE COURT SHOULD HAVE RELIED ON DR. SAFERSTEIN'S TESTIMONY.

POINT III

THE STATE FAILED TO OFFER PROOF THAT THE TREATMENT THE DEFENDANT RECEIVED (WIPED DOWN WITH ALCOHOL) DID NOT FALSELY ELEVATE HIS BLOOD TEST.

We reject these arguments and affirm.

On December 7, 2008, while operating a motorcycle in Hawthorne, defendant collided with an automobile.   Defendant sustained injuries in the accident, and was transported to a local hospital.   Hawthorne Patrolman George Cole responded to the scene and interacted at close quarters with defendant as he was placed in the ambulance.   Cole detected a strong odor of alcoholic beverage emanating from defendant's breath.   He therefore followed the ambulance to the hospital for the purpose of obtaining a blood sample.

At the hospital, Cole presented a sealed police blood collection kit to emergency room technician Michael Mazzei.   Mazzei unsealed the kit.   Using the apparatus and swab contained in the kit, Mazzei drew a blood sample from defendant.   He first sterilized the area from which the sample was drawn with the iodine swab included in the kit.   The sample was drawn in Cole's presence.   Mazzei handed the collected sample to Cole, who returned it to the station house.   The sample was analyzed by the State Police Laboratory and yielded a .138% blood alcohol concentration (BAC).   While at the hospital, defendant admitted to Cole that he had consumed alcoholic beverages shortly before the accident.

The State presented the testimony of Cole, Mazzei, and a detective who provided chain of custody evidence.   Defendant and his wife testified.   Defendant admitted to having consumed alcoholic beverages shortly before the accident.   He and his wife claimed he sustained head injuries and lost a significant amount of blood before Mazzei drew the blood sample.   Defendant also contended that before the blood sample was drawn medical personnel wiped him down with alcohol in treating his injuries.

Defendant presented the testimony of Dr. Richard Saferstein, an expert in forensic toxicology.   Saferstein testified that from the time an individual ingests alcohol, it takes approximately sixty minutes for the alcohol to pass through the stomach into the bloodstream.   If, during that sixty minute interval, the individual lost a significant amount of blood, a blood sample would yield a falsely elevated BAC. Saferstein therefore opined that in the circumstances of this case defendant's BAC constituted a scientifically unreliable result.

Saferstein acknowledged that he could not quantify the amount of blood defendant lost.   He had not reviewed the hospital records, nor had he interviewed any doctors, hospital personnel or emergency responders.   Saferstein could not state an amount of blood loss that would qualify as “significant.”   Saferstein had never conducted any tests on the loss of blood in connection with alcohol consumption.

The municipal judge discredited the testimony of defendant and his wife regarding their contention that defendant suffered a large blood loss.   The municipal judge also discredited Saferstein's testimony, which was not factually supported.   The municipal judge found that the blood sample was drawn in a medically acceptable manner by qualified medical personnel, resulting in a reliable reading of .138% BAC. He accordingly found defendant guilty.

In the Law Division, Judge Honigfeld applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings.   See State v. Locurto, 157 N.J. 463, 473-74 (1999);  State v. Johnson, 42 N.J. 146, 157 (1964).   Judge Honigfeld roundly rejected Saferstein's opinion that the blood sample was unreliable.   He described it as a “net opinion,” commenting that Saferstein had “no really underlying and underpinning facts to base it on.”

Defendant's second and third arguments do not warrant extended discussion.   R. 2:11-3(e)(2).   The State was under no obligation to present expert testimony to rebut Saferstein's testimony.   Factfinders are free to reject testimony deemed incredible, including that of an expert.  State v. Cryan, 363 N.J.Super. 442, 457 (App.Div.2003).   Likewise, the State was not required to provide any proof beyond that which it did provide regarding the medically acceptable manner in which the blood sample was drawn.   Notwithstanding defendant's generalized assertion that medical personnel had previously rubbed him down with alcohol in treating his injuries, Mazzei testified that he swabbed the area from which the sample was taken with an iodine swab provided in the sealed police blood collection kit.   The State's proofs were sufficient to establish that the blood sample was obtained in a hospital by qualified medical personnel, thus establishing that the blood was drawn in a medically acceptable manner and environment.  State v. Casele, 198 N.J.Super. 462, 467 (App.Div.1985).

Affirmed.

PER CURIAM