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State of New Jersey v. Richard Hamersky

January 10, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD HAMERSKY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 26-09-C-T13.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2010 - Decided

Before Judges Baxter and Koblitz.

Following a trial de novo in the Law Division, defendant Richard Hamersky appeals from his January 15, 2010 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. The judge imposed the required ninety-day suspension of defendant's driving privileges, which was stayed pending appeal.*fn1 We reject defendant's argument that the State's proofs failed to satisfy the pre-conditions for admitting the AlcoTest results in evidence, as we are satisfied the record supports the Law Division's conclusion that police waited the twenty minutes required by State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), before administering the test. We likewise reject defendant's argument that the police lacked probable cause to arrest him and subject him to the AlcoTest. We affirm.

I.

In the afternoon of December 2, 2008, defendant, a fifty-two year old certified public accountant, met a client in Englewood. At the conclusion of the client meeting, he drove to a social club in Carteret, of which he was a member. While there, he consumed, by his own admission, two and one-half bottles of beer over a three-hour period, although he insisted that such consumption had in no way interfered with his ability to operate his vehicle safely. On his way home, defendant was driving behind a vehicle operated by Joseph Mitchell. Defendant believed Mitchell was driving too fast, and wanted to tell him to slow down. Defendant denied tailgating Mitchell's vehicle, insisting that he remained approximately nine car lengths behind it.

Mitchell, age twenty, testified that as soon as he pulled onto Amsterdam Road in Hillsborough, defendant began tailgating him by driving "about a foot away from [his] bumper." Mitchell raised his middle finger at defendant and both vehicles pulled to the side of the road, where a heated exchange occurred. Both men entered their vehicles, and, according to Mitchell, defendant continued to tailgate his vehicle. Not wanting defendant to know where he lived, Mitchell pulled over to the side of the road. Rather than continuing on his way, defendant chose to also pull over to the side of the road as well. Although Mitchell's and defendant's accounts of who began the physical altercation differ, Mitchell sustained no injuries. He admitted punching defendant several times in the face, causing bleeding. At that point, each man returned to his vehicle, driving no further. Mitchell also testified that as soon as he approached defendant he was able to smell alcohol on defendant's breath.

Mitchell telephoned his father, who in turn called police. Hillsborough Township Police Officer Christopher Kennedy arrived at the scene at approximately 11:17 p.m., finding Mitchell and defendant each seated in their respective vehicles. Approaching the driver's side of defendant's vehicle, Kennedy observed defendant "bleeding at the face." He offered defendant medical attention, which he said defendant declined.

As soon as Officer Kennedy began speaking to defendant, he detected an odor of alcohol emanating from inside the vehicle. Kennedy also observed that defendant's eyes were bloodshot, which he noted in his police report. Kennedy asked defendant where he had been prior to encountering Mitchell, to which defendant responded that he was coming from a business meeting. Defendant did not mention he had also been at a social club. He told Kennedy he had consumed one beer, later changing his answer to two. Kennedy immediately returned to his patrol vehicle to activate his motor vehicle recorder (MVR), which remained active for the forty-five minutes. After administering the alphabet test, the counting-backward test, the one-legged stand and the walk-and-turn test, Officer Kennedy concluded that defendant's performance on those tests was consistent with intoxication. He took defendant into custody and transported him to headquarters so that the AlcoTest exam could be administered.

Sergeant Charles Boyle, a certified AlcoTest operator, was on duty on December 2, 2008 when he was notified that Officer Kennedy had arrested an individual on suspicion of DWI and would be bringing the suspect back to headquarters for an AlcoTest.

Sergeant Boyle testified it was his "standard procedure" when notified that one of his officers would be transporting an individual to headquarters for the AlcoTest, to wait at the rear door "where they come in through the sallyport entrance" and watch the suspect until he or she is handcuffed to the bar.

When asked whether he had been observing defendant before beginning the AlcoTest, Boyle answered, "[the] minimal period of time is 20 minutes, [so] I observed the gentlem[a]n for 20 minutes from inside the room." Boyle explained:

I was directly in front of him the entire time and watched him during the 20 minute waiting period to make sure there was no regurgitation, burping, throwing up, things of that nature that ...


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