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State v. Furbert

March 15, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LLOYD FURBERT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-068.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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