On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 52-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50. In the municipal court, the parties disputed whether State v. Chun, 194 N.J. 54, 140, cert. denied, __ U.S. __, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), requires that only the Alcotest operator may testify to the required pre-test twenty-minute observation period.*fn1 Having stipulated there was probable cause for his arrest, defendant agreed that "the sole issue" to be decided concerned whether Chun's twenty-minute requirement could be satisfied in this case. After conducting a pre-trial evidentiary hearing, the municipal judge rejected defendant's contention and concluded that the testimony of the arresting officer regarding the twenty minutes prior to the Alcotest was both credible and sufficient.
With the resolution of that dispute, defendant entered a conditional guilty plea. During the plea hearing, defendant acknowledged that he had consumed alcohol prior to operating his vehicle at the time in question, that his Alcotest reading exceeded the legal limit, and that the guilty plea was the product of his free will. The judge sentenced defendant, who was a first-time offender, to a fine, costs, a seven-month license revocation, and other mandatory penalties, assessments and conditions.
Defendant appealed. In conducting a de novo review, the Law Division judge adopted defendant's interpretation of Chun and found him not guilty. The State then filed this appeal, arguing that the Law Division judge had mistakenly interpreted Chun's requirements and that, even if the judge was correct, he should not have acquitted defendant but should have remanded for the vacation of the guilty plea and for a trial on the DWI charge based upon the arresting officer's field observations.
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. As a result, we need not consider the State's alternative argument.
The judgment of the Law Division is reversed and the stay of the sentence imposed by the ...