State v. Delia Pape-White, unpublished opinion, App. Div. Docket No. A-0840-08T4 (April 28, 2010) – “[W]e affirm the Law Division’s conviction for DWI and reverse the conviction for reckless driving. Based on these determinations, we dismiss the State’s cross-appeal….
Since a BAC reading can only be shown by admissible breath or blood tests, not by observation, defendant correctly observes that if the State is successful in appealing the admissibility of the Alcotest results, the .11 percent BAC readings would subject her to higher penalties than if she had not appealed….
The Law Division’s ruling suppressing the Alcotest results precluded the State from proving that defendant’s BAC was at least .10. Whether correct or not, that decision is not subject to appeal after a judgment of conviction has been entered, because appeal and reversal would ‘subject defendant to … the possibility of conviction of … an offense carrying a higher penalty.’…
Such an appeal would violate defendant’s right against double jeopardy…. [W]e reject the State’s contention that the sentence imposed by the Law Division was illegal. The Law Division’s factual determinations regarding defendant’s guilt resulted in the State securing a DWI conviction. The sentence thereafter imposed was a proper disposition under N.J.S.A. 39:4-50(a)(1)(i).”