January 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JOHN BISCARDI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 39-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Fisher and Espinosa.
Defendant was charged with driving while intoxicated, N.J.S.A. 39:4-50.*fn1 At the municipal trial, defendant argued that State v. Chun, 194 N.J. 54, 140, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), holds that only the Alcotest operator may testify to the required pre-test twenty- minute observation period.*fn2 The municipal judge rejected that contention, found defendant guilty, and imposed a fine, costs, a ninety-day license revocation, and other mandatory penalties, assessments and conditions. In conducting a de novo review, the Law Division judge adopted defendant's interpretation of Chun and, for that reason only, found defendant not guilty. The State then filed this appeal.
During the pendency of this appeal, another panel of this court determined that the State was not limited to what the Alcotest operator could provide about the twenty-minute period and that 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 might jeopardize the results. State v. Ugrovics, 410 N.J. Super. 482, 485 (App. Div. 2009). For the reasons set forth in Ugrovics, we conclude that the municipal judge's interpretation of Chun was correct and that the Law Division judge mistakenly imposed upon the State an additional obligation not required by Chun.