On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 78-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Hayden.
Defendant Jesse Martinez appeals from a May 12, 2010 Law Division judgment of conviction entered following a de novo trial based upon the record of proceedings in the East Brunswick Municipal Court. The Law Division found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Because the Law Division reached that result based on a misapprehension that it was obliged to defer to the decision of the municipal court, rather than conduct an independent assessment of the record, we reverse defendant's conviction and remand for further proceedings.
Defendant stipulated in both the municipal court and in the Law Division that his sole challenge to the State's proofs on the DWI charge was whether the East Brunswick Police Department had observed him for the twenty minutes required by State v. Chun, 194 N.J. 54, 129, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), before administering the Alcotest. We therefore confine our discussion accordingly. At the trial in the municipal court, the State presented the testimony of Officer Wade Gordon, who was first certified in 2004 to administer the Alcotest, and who was recertified in 2006 and in 2008. Because Gordon is the one of the few police officers in the East Brunswick Police Department so certified, he is on call twenty-four hours per day to perform the test; and has administered the Alcotest approximately 150 times over the years since the Alcotest has been in effect.
Gordon explained that if he is called by an arresting officer and asked to perform the Alcotest, the arresting officer will already have the suspect handcuffed to the bench in the booking room at police headquarters by the time Gordon arrives. He described his standard procedure as follows, "I'll check their oral cavity and make sure there's no gum or any other object in the mouth and then just observe them for 20 minutes to make sure that they don't belch." After the twenty minutes has elapsed, he "take[s] them into the Alcotest room and administer[s] the tests."
In the case of defendant Martinez, Gordon was called to headquarters on May 10, 2008 by the arresting officer, Patrolman Unkel, to administer the Alcotest. When Gordon arrived at police headquarters, defendant was already "on the bench in the booking room and [he] checked [defendant's] mouth and . . . observed him for 20 minutes." Gordon noted that defendant's "oral cavity was clear." According to Gordon, he stood facing defendant "face to face" from six feet away while defendant was seated on the bench. Once the twenty-minute period had elapsed without defendant belching or doing anything else that would run afoul of the twenty-minute waiting period required by State v. Chun, Gordon uncuffed defendant from the bench and instructed defendant to walk in front of him into the Alcotest room. Gordon explained that he was "able to observe him" during the time that the two were walking the short distance to the Alcotest room.
On cross-examination, Gordon conceded that he did not include in his
police report the time defendant was arrested, the time defendant was
brought to headquarters by Patrolman Unkel or the time that the
Alcotest began. He also conceded that he had not noted in his report
that he observed defendant for twenty minutes before beginning the
test. When asked by the prosecutor why he had not included his
twenty-minute observation of defendant in his report, Gordon stated
"[i]t's just a standard procedure that is done every time I run the
breath test[.] [T]hat's why it's maybe not indicated on there." In
answer to the prosecutor's question, "Is it something that's so
standard at this point that you don't feel the need to actually record
it," Gordon answered "[t]hat is correct." Gordon explained that
defendant was arrested at 2:30 a.m., after which Unkel had, according
to a document signed by Unkel, administered Miranda*fn1
warnings to defendant at 3:00 a.m. in the booking room, and
the Alcotest was started at 3:22 a.m.
Defendant testified, asserting that he was handcuffed to the bench in the booking room for "close to an hour" and he could hear Unkel and Gordon in another room engaged in "a lot of small talk . . . mostly about their weightlifting." Defendant maintained while he was in the booking room for that period of time, he could not see Gordon and Gordon could not see him. At the end of an hour, Gordon came in, released him from the handcuffs and brought him into the room where the breath test was performed. He maintained that neither officer had conducted any face-to-face observation of him before the Alcotest began, much less for the twenty minutes that Gordon claimed.
On cross-examination, defendant stated that the roadside sobriety tests were completed at 3 o'clock, the ride back to headquarters consumed fifteen minutes, five minutes elapsed from the time he and Patrolman Unkel arrived at police headquarters before Unkel handcuffed him to the bench, and he was seated on the bench for "about an hour" before the breath test began. He agreed that his timetable "would bring you to around 4:15." When confronted with the fact that the Alcotest was administered at 3:22 a.m., and his own time estimates would have caused the test not to begin until 4:15 a.m., defendant stated that he did not actually know whether the Alcotest began at 3:22 a.m., as Gordon had claimed. Defendant asserted that the test began much later, although he admitted he was not wearing a wrist watch and had no method of determining the actual times.
At the conclusion of defendant's testimony, the State recalled Officer Gordon, who reiterated that it was his "normal procedure" to stand next to the suspect seated on the bench and watch him continuously for twenty minutes, which he had done in this case. When asked by the judge whether any of the 150 Alcotest reports he had prepared in the past state whether he watched the suspect for the required twenty minutes, Gordon answered no.
At the conclusion of the testimony, the municipal court judge summarized the testimony in considerable detail, after which he ...