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State v. Shepherd

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GREGORY SHEPHERD, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-060.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2009

Before Judges Axelrad and Fisher.

Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50. He moved to suppress the results of an Alcotest because the operator did not observe him for twenty minutes prior to the test. The municipal judge denied the motion and, as a result, defendant entered a conditional guilty plea so he could appeal the denial of the suppression motion. The municipal judge imposed a seven-month suspension of defendant's driving privileges, fines and other conditions, but stayed the sentence pending outcome of defendant's appeal.

On appeal, the Law Division judge granted the motion to suppress and vacated the conditional guilty plea. We granted leave to appeal and now reverse.

The parties consented to a disposition of the motion to suppress by reference to stipulated facts. They stipulated that defendant was observed by either the arresting officer or the operator for more than twenty minutes prior to the administration of the test but that the operator only observed defendant for fifteen minutes prior to the test.*fn1

State v. Chun, 194 N.J. 54, 140, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008) requires that the accused not ingest, regurgitate or place anything in his or her mouth for at least twenty minutes prior to the administration of the Alcotest. Here, the municipal judge determined that Chun does not require that only the operator may testify regarding the twenty-minute period but that, as here, it would be sufficient if the arresting officer could provide the additional proof necessary to show that defendant did not ingest, regurgitate or place anything in his mouth for twenty minutes prior to the test. The Law Division judge disagreed, concluding that Chun determined that only the Alcotest operator is competent to testify about the twenty-minute period.

During the pendency of this appeal, another panel of this court considered this same issue. State v. Ugrovics, __ N.J. Super. __ (App. Div. 2009). In Ugrovics, we concluded that the State was not limited to what the Alcotest operator could provide about the twenty-minute period and the State could sustain its burden by calling any competent witness to testify that twenty minutes elapsed prior to the Alcotest without the occurrence of anything that would jeopardize the results. For the reasons set forth in Ugrovics, we conclude that the municipal judge here correctly applied the principles set forth in Chun and properly denied the motion to suppress.

As a result, we reverse the Law Division judge's order suppressing the results of the Alcotest and vacate that part of the Law Division judge's order that vacated the conditional guilty plea. The order staying execution of the sentence is also vacated.


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