September 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAHESHKUM PATEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2008
Remanded February 26, 2009
Resubmitted April 1, 2009
Before Judges Fuentes, Gilroy and Chambers.
This is a supplemental opinion to our prior unreported decision, State v. Patel, No. A-3558-06 (App. Div. Feb. 26, 2009). Because the procedural history and statement of facts are contained in our prior opinion, it is unnecessary for us to restate them here. The following summary will place this opinion in context.
On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when the motor vehicle left the roadway and struck a tree. Patrolman Brian Ahlert of the Florham Park Police Department arrived at the scene at approximately 8:09 p.m. After completing an inquiry of defendant concerning whether he had suffered injuries in the accident, Ahlert administered field sobriety tests to defendant. Based on Ahlert's observation of defendant's physical condition, he arrested defendant for operating a motor vehicle while intoxicated (DWI), N.J.S.A. 39:4-50(a).
Following defendant's arrest, he was transported to the Florham Park Police Headquarters, where he submitted to the taking of samples of his breath by use of the Alcotest breath testing device (the Alcotest). Defendant gave three breath samples at 8:54 p.m., 8:58 p.m., and 9:01 p.m. The first sample did not result in a blood alcohol concentration (BAC) reading because the minimum volume of breath was not achieved. The second sample resulted in an IR reading and an EC reading of .205%. The third sample resulted in an IR reading of .216% and an EC reading of .213%. The Alcotest device reported the final BAC test result as .20%, the lowest of the four IR and EC readings, truncated to two decimal places.
At trial in the Municipal Court, the State presented evidence of defendant's guilt by introducing the Alcotest result and by proof of defendant's physical condition. As to defendant's physical condition, the State presented testimony of Patrolmen Brian Ahlert and David Rubelowsky, both of whom testified concerning their observations of defendant's physical manifestations at the scene and at police headquarters, including defendant's failure to properly perform the field sobriety tests. In addition, both officers opined that defendant was intoxicated. Based on the evidence, the Municipal Court found defendant guilty and sentenced him as a third-time offender.
On trial de novo, the Law Division also found defendant guilty. Although the Law Division judge determined that the State had proven defendant's guilt beyond a reasonable doubt under the per se standard of N.J.S.A. 39:4-50(a), relying on the Alcotest result, he did not expressly state that he found defendant guilty based on his physical condition. Because two of defendant's arguments on appeal challenge the admissibility of the Alcotest result, we concluded that a limited remand was required for the Law Division judge to make an express determination of defendant's guilt or innocence based on his physical condition before addressing the merits of the appeal. Thus, we remanded the matter to the Law Division for further proceedings consistent with our prior opinion and retained jurisdiction.
On March 3, 2009, the Law Division judge issued a supplemental letter opinion in which he concluded that defendant was guilty of the offense based on defendant's physical condition.
It was obvious to me, then and now, that there was a substantial diminution of the defendant's faculties and capabilities. His altered physical coordination and mental faculties made it unsafe for him to operate his vehicle. He had imbibed to the extent that he was deleteriously affected, both in his judgment and control of his vehicle. These are not new findings by me. Although inartfully expressed from the bench, they are the same findings that formed the basis for the decision that I arrived at initially. It was, therefore, my conclusion at the time of the trial de novo that the defendant was unequivocally guilty of driving while intoxicated based upon observations and his physical condition.
On March 30, and April 1, 2009, we received letter memorandums from defense counsel and the prosecutor, respectively, addressing the findings and conclusions contained in the Law Division judge's supplemental letter opinion.
On appeal, defendant argues:
THE LAW DIVISION CONVICTION IS PREMISED ON A PER SE VIOLATION ONLY BASED ON AN ALCOTEST READING OF .20%.
THE ALCOTEST READING IS UNRELIABLE AND INADMISSIBLE FOR THE OPERATOR'S FAILUE TO OBSERVE DEFENDANT FOR THE TWENTY MINUTES.
THE MUNICIPAL COURT JUDGE IMPROPERLY REFUSED TO PERMIT DEFENDANT'S EXPERT TO TESTIFY.
In Point II, defendant argues that the Alcotest result should not have been admitted into evidence because the State failed to prove, as a precondition of the admissibility of the Alcotest result, that "the test was administered according to official procedure." State v. Chun, 194 N.J. 54, 134, cert. denied, ____ U.S. ____, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008). We agree.
Under Chun, one of the requirements for taking a proper breath sample is that the operator "must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest." Id. at 79. "Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence." Ibid. "In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew." Ibid.
Here, the Alcotest operator inadvertently placed the wrong time of defendant's arrest into the Alcotest instrument. Rather than placing the time of defendant's arrest of 8:39 p.m. into the Alcotest instrument, the operator incorrectly placed the time of the accident, 8:09 p.m., into the instrument. This error may have permitted the Alcotest operator to proceed with testing, contrary to the Alcotest instrument's software program meant to ensure that the operator observes a test subject for at least twenty minutes before testing. Ibid. ("The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest.").
Moreover, we are not satisfied that the record supports the Law Division's finding that defendant was under the Alcotest operator's continuous observation for twenty minutes before defendant was administered the Alcotest. Rubelowsky conceded that he had left the booking room where defendant was first seated on arrival at police headquarters for a non-specified period of time, leaving defendant in the presence of Patrolman Ahlert. After Rubelowsky returned to the booking room, defendant was brought into an adjacent room for the purpose of administering the Alcotest. Because we are not satisfied that the certified operator maintained defendant under his constant observation for a period of twenty minutes before administering the Alcotest as required by Chun, we conclude that the Alcotest result was improperly admitted into evidence. Ibid.
In Point III, defendant argues that the Municipal Court improperly barred his expert from testifying after the expert heard the testimony of the State's Alcotest operator regarding the administration of the Alcotest. Because defendant's expert witness's testimony only concerned the admissibility of the Alcotest result, we determine the issue moot, having decided that the Alcotest result was improperly admitted.
The issue becomes whether or not the evidence supports the Law Division's determination of defendant's guilt based on proof of his physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003) (holding that N.J.S.A. 39:4-50(a) creates one offense that may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level"), aff'd, 180 N.J. 45 (2004). We are satisfied that the credible evidence supports the Law Division's determination of guilt based solely on defendant's physical condition. Moreover, on appeal, "the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." State v. Locurto, 157 N.J. 463, 474 (1999). Accordingly, we affirm. The April 11, 2007 stay of the remainder of defendant's custodial sentence is vacated.
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