On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 06-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Newman.
Following a trial de novo in the Law Division, defendant Brian J. Smith was convicted of driving while intoxicated (DWI) based upon an excessive blood alcohol concentration (BAC) shown by Alcotest readings. The judge sentenced defendant to a seven- month revocation of his driving privileges, ordered that he attend twelve hours at an Intoxicated Driver Resource Center, and imposed appropriate fines and penalties. On appeal, defendant raises the following issues:
POINT I: THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TWENTY-MINUTE RULE WAS MET.
POINT II: THE CREDIBILITY DETERMINATION, UPON WHICH BOTH LOWER COURTS BASED THEIR DECISIONS, WAS FLAWED.
On August 30, 2009, following a traffic stop, defendant was taken to the Millville police station and charged with DWI after two of his breath samples, analyzed by an Alcotest, disclosed his BAC to be 0.12%. He moved to suppress the BAC reading, contending the officer operating the Alcotest did not observe him for twenty consecutive minutes before taking his first breath sample, the observation period being a pre-condition to admitting the Alcotest results into evidence. The only witnesses to testify at the municipal court hearing were Millville Police Detective John Redden and defendant.
Redden testified defendant was brought to the station for breath testing. Three other officers were present. Redden was certified to administer the Alcotest and understood that an Alcotest operator must observe a subject for twenty minutes before taking the first breath sample. Redden entered the room at 12:58 a.m., turned on the Alcotest at 1:20 a.m., and administered the first test at 1:23 a.m. He observed defendant for more than twenty minutes, using his wristwatch to time the observation period, and was never more than six or seven feet from defendant. Defendant did not belch, consume anything orally, or leave Redden's sight.
Defendant wanted to use some lip balm but Redden took that from him. Defendant repeatedly requested to use the bathroom, but Redden would not allow it; he never let arrestees use the bathroom during the "observation" period. Redden administered four tests because defendant gave an inadequate breath sample on two. When testing was complete, Redden permitted defendant to use the bathroom.
According to defendant, Redden did not observe him for twenty minutes before taking the first breath sample. One of the officers denied defendant's request to use the bathroom, but when defendant insisted he "really had to go," another officer un-handcuffed him and permitted him to use a bathroom in a cell. Defendant could not remember which officer permitted him to use the bathroom, but no officer accompanied him, and the officers could not observe him when he used the bathroom. Redden administered the Alcotest when defendant returned.
The municipal court judge found Redden's testimony credible and determined the State had demonstrated by clear and convincing evidence that Redden observed defendant in excess of twenty minutes before administering the Alcotest. In making his credibility determination, the judge noted that defendant was under the influence of alcohol. Following the court's decision, defendant entered a conditional guilty plea to DWI. After a trial de novo, the Law Division determined that the State "proved compliance ...