On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-055.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Skillman, Fuentes and Gilroy.
Defendant Joel M. Ugrovics was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). This appeal concerns the admissibility of the results of an Alcotest administered to defendant in connection with this charge. By leave granted, the State appeals from the order of the Law Division suppressing the results of the Alcotest because the arresting officer, rather than the Alcotest operator, was the person who observed defendant during the twenty minutes prior to him taking the test. In reaching this conclusion, the trial court relied on what it characterized as the "procedures" mandated by the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied, ____ U.S. ____, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008).
We reverse. Consistent with the underlying principles articulated by the Court in Chun, we hold that the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest. The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time. The identity of the observer is not germane to this central point. The State can meet this burden by calling any competent witness who can so attest.
We will limit our factual recitation to the events that relate directly to the discrete issue under review.
On July 19, 2008, Riverdale Police Department Officer Eric Hollenstein was conducting radar checks on Hamburg Turnpike when he observed defendant's vehicle traveling at forty-five m.p.h. in a twenty-five m.p.h. zone. When Hollenstein stopped the car to issue a summons for speeding, he detected an odor of alcohol emanating from inside the vehicle and noticed that Ugrovics, the only person in the car, had glassy eyes. In response to Hollenstein's questions, defendant admitted that he had consumed alcoholic beverages that evening.
Against these facts, Hollenstein concluded that he had a sufficient basis to ask defendant to perform a series of field sobriety exercises. Given the limited scope of our review, we will dispense with describing the details of the tests defendant performed. Suffice it to say that despite Hollenstein's clear verbal instructions, defendant failed to perform these tests as directed. Based on the totality of the circumstances, Hollenstein concluded that he had probable cause to charge defendant with DWI and arrested him accordingly.
Hollenstein transported defendant from the scene of the motor vehicle stop to the Riverdale Police Station for the purpose of processing the arrest and administering an Alcotest to defendant. Officer Robert DiGirolamo was the station's Alcotest operator on that date and was therefore the person who administered the test to defendant.
For purposes of this appeal the State stipulated that Hollenstein would have been the only witness it would have called who would have testified that he continuously observed defendant for at least twenty minutes before defendant took the Alcotest. On this sole issue, the State proffered, and the trial court accepted, that Hollenstein would have testified that during this twenty-minute window of time defendant did not burp, regurgitate or ingest any alcohol. The two separate breath samples taken from defendant yielded a blood alcohol concentration (BAC) of .13.
Defendant pled guilty before the Riverdale Municipal Court to DWI, reserving his right to challenge the results of the Alcotest based on the State's failure to show that the Alcotest operator was the person who observed defendant for a period of at least twenty minutes before the test was administered. In the course of ...