March 15, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LLOYD FURBERT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2009
Motion for Reconsideration Granted. Supplemental opinion - Decided April 26, 2010
Before Judges Cuff, Payne and Waugh.
In our initial decision on this appeal, we affirmed defendant Lloyd Furbert's conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50, but remanded for resentencing. State v. Furbert, No. A-0474-08T4 (App. Div. March 15, 2010). Because we affirmed on the basis of the arresting officer's observations of Furbert, we did not reach the issue of whether the conviction could also be upheld on the basis of the results of his Alcotest readings. The State moved for reconsideration, arguing that the sentencing parameters with respect to the required license suspension are different for driving under the influence, N.J.S.A. 39:4-50(a)(1)(i) (three months), and driving with a blood-alcohol level of 0.10 percent or more, N.J.S.A. 39:4-50(a)(1)(ii) (seven months). For that reason, we grant the State's motion.
The full factual background of this case was set forth at some length in our prior opinion. With respect to the Alcotest, we stated:
Once they arrived at the station, Furbert placed a mint in his mouth. He was ordered to spit out the mint and did so. [Officer] Lindner then waited twenty-four minutes before administering the Alcotest.
During the waiting period, Lindner read the Implied Consent Form to Furbert, who agreed to provide breath samples. The first successful sample was taken at 2:45 p.m. and the second at 2:48 p.m. The tests resulted in an average of 0.13 percent blood alcohol content (BAC).
[Furbert, supra, slip op. at 3.]
Furbert contends, among other arguments, that the State failed to establish, as required by State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), that Officer Lindner had Furbert under observation during the entire twenty-minute period after Furbert had spit out the mint. As a result, he argues, the Alcotest results were inadmissible.
We discussed the twenty-minute observation period in State v. Ugrovics, 410 N.J. Super. 482, 488-90 (App. Div. 2009) (footnotes omitted), as follows:
In the course of considering the scientific reliability of the Alcotest, the Court explained the procedures employed in administering the test to suspected drunk drivers. [Chun, supra, 194 N.J. Super.] at 77-84. During that recitation, the Court gave the following description of how the test is administered:
The actual administration of the test is performed by one of the more than 5000 certified Alcotest operators in New Jersey. When a person has been arrested, based on probable cause that the person has been driving while intoxicated, he or she is transported to the police station to provide a sample for the Alcotest. The Alcotest, consisting of a keyboard, an external printer, and the testing device itself, is positioned on a table near where the test subject is seated.
Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.
[Id. at 79.]
This description of the test is the central basis for defendant's claim, and the trial court's ruling, that the Alcotest operator is the only person authorized to observe a test subject during this twenty-minute period. The State, on the other hand, argues that the Court's only concern was to ensure that the test subject had not placed anything in his or her mouth that may compromise the reliability of the test. According to the State, this can be established through witnesses other than the operator of the Alcotest.
We acknowledge that defendant's position is, at first blush, supported by what appears to be the plain language used by the Court in Chun. However, a literal, unexamined application of such language here would create an unduly and, in our view, unintended restriction on the State's ability to prosecute DWI cases based on the results of an Alcotest.
With respect to this critical twenty-minute period, the key concern of the Court in Chun was to ensure that the test subject did not ingest, regurgitate or place anything in his or her mouth that could affect the reliability of the test. Id. at 140. In this context, the Court described the role of the operator as follows:
[T]he operator will play a relatively lesser role here than has been the case in the past. His role now consists of observing the subject to ensure that twenty minutes has passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the test results; inputting and verifying the accuracy of the identifying information needed to start the sequence; changing the control solution if the machine alerts him to do so; attaching a new mouthpiece; reading the instructions about how to blow into the machine; observing the LED screen and following its prompts; and observing the subject to ensure that he or she actually provides a sample.
The Court even predicted that as the Alcotest "becomes more routine, some, or even most, defendants will eventually forgo cross-examination of the operator in light of the limited information that can be achieved in that effort." Id. at 141 n.44.
Thus, there is a key difference between the responsibilities of the operator in administering the Alcotest and the State's burden of proof at trial. At trial, the State must establish, by clear and convincing evidence, that, during the twenty-minute period immediately preceding the administration of the test, the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results. This can be accomplished through the testimony of any competent witness who can so attest. By contrast, the operator's principal role is to ensure that the procedures leading to the actual taking of the test have been strictly followed.
As noted earlier, one of the benefits associated with the Alcotest is its automation, which is intended to reduce the role of the operator and thereby minimize the potential for human error. To construe the twenty-minute observation requirement as bestowing upon the operator the exclusive responsibility to monitor the test subject elevates form over substance and places an importance on the operator that is inconsistent with what the Chun Court envisioned to be his or her diminished role. Id. at 141 n.44.
See also State v. Filson, 409 N.J. Super. 246, 254-61 (Law Div. 2009) (construing the observation requirement). In his decision convicting Furbert de novo on the basis of the Alcotest results, the Law Division judge stated his reasons as follows:
The defendant's only claim against the admissibility of the Alcotest is that the Officer did not testify to continuously observing the defendant for twenty minutes after he put the mint in his mouth. Although he "waited" 24 minutes, if there was no continuous observation, one can not [definitely] say that the defendant did not put another mint in his mouth or regurgitate alcohol. However, there is no evidence this occurred either. Again, had the defendant ingested or placed anything into his mouth (as having been "observed" before the first test), it would have been detected by the readings.
We cannot uphold the per se conviction on the basis of that finding. It is implicit in the judge's decision that he could not make a factual determination that there was continual observation by Lindner, who was the only witness, or by anyone else. In addition, he appears to shift the burden of proof to Furbert in stating that "there is no evidence this occurred either." Finally, his reliance on purported detection of alcohol, mints, or other substances "by the readings" to excuse noncompliance with the observation period is inconsistent with the holdings of Chun and Ugrovics.
On reconsideration, we conclude that the State failed to prove a per se violation of N.J.S.A. 39:4-50. Consequently, on remand, Furbert cannot be sentenced under N.J.S.A. 39:4- 50(a)(1)(ii) for driving with a blood-alcohol level of 0.10 percent or more.
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