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State v. Tirello


February 11, 2010


On appeal from Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 25-12-08.

Per curiam.


Submitted November 5, 2009

Before Judges Fisher and Espinosa.

Defendant Damian Tirello was convicted in municipal court of a second offense for driving while intoxicated, N.J.S.A. 39:4-50(a) (DWI). In the trial de novo that followed, the Law Division judge ruled that the Alcotest results were inadmissible and reinstated defendant's driving privileges. We granted the State's leave to appeal from that ruling and now reverse.

Several Wildwood police officers arrived at the scene of a two-car accident at approximately 10:36 p.m. Defendant admitted that he was one of the drivers involved. Patrolman Nino Cusella detected an odor of alcoholic beverage on defendant's breath and observed that defendant's eyes were watery and bloodshot. When defendant denied drinking any alcoholic beverages, Officer Cusella told him that he was stuttering and his speech was slurred. Defendant then admitted drinking a couple of beers earlier in the evening. Although defendant was able to recite the alphabet, he swayed while performing field sobriety tests. He was then arrested, handcuffed and searched.

Because the arrest involved alcohol, Officer Cusella testified that "everything" was taken from defendant's person, including his cell phone and any type of food, gum, mints, or cigarettes. Defendant remained handcuffed in the patrol car as Officers Cusella and Chobert transported him to police headquarters fourteen blocks from the accident scene. The handcuffs were not removed until he was taken into the "DWI room."

Throughout the time that he was present at police headquarters, defendant was in the presence of an officer who was able to observe him. He never put anything in his mouth, did not burp or regurgitate and did not use the bathroom. Defendant admitted that he was not injured or sick; did not have diabetes and was not under the care of a doctor.

Defendant testified that Officer Cusella left his presence for approximately five to ten minutes after taking his information for processing. However, during this period, Officer Castro was present and spoke with defendant.

Officer Cusella is a certified Alcotest operator. He testified that, at the time of defendant's arrest, it was his understanding that it was necessary to observe a DWI arrestee for twenty minutes following arrest before an Alcotest could be administered and that he observed defendant for that amount of time. He administered defendant's first breath test at 11:35 p.m., approximately one hour after the arrest. The result was a blood alcohol content of .09.

The only challenge to the procedure followed was that, because Officer Cusella left defendant for approximately five to ten minutes, there was an allegedly fatal interruption to a continuous twenty-minute observation period.

We reject the argument that the Alcotest results were inadmissible on this basis. Our holding in State v. Ugrovics, 410 N.J. Super. 482 (App. Div. 2009) identified the procedural requirements the State must satisfy for the admission of such results:

[T]he 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. [Id. at 484-85.]

The testimony presented by the State, which was undisputed by defendant, satisfied this burden.

The order suppressing the Alcotest results is reversed and the matter is remanded for a trial de novo in the Law Division. We do not retain jurisdiction.


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