Driving While Intoxicated (DWI) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS SUPERIOR COURT OF NEW APPEAL NO. 39-2008 Plaintiff, Criminal Action v. DECISION Defendant. William Haumann, Assistant Prosecutor (Joseph Bocchini, Mercer County Prosecutor, attorney), for plaintiff. Robert Ramsey (Donini & Ramsey, attorneys) for defendant. Argued: March 5, 2009 Opinion Issued: March 9, 2009 OSTRER, J.S.C. In this municipal appeal from a driving-under-the-influence conviction, the court must construe the requirement that an Alcotest operator observe a defendant for twenty minutes before administering the test. FACTS AND PROCEDURAL HISTORY. The defendant pled guilty to an observational violation of N.J.S.A. 39:4-50, but entered a conditional plea of guilty to a per se violation, preserving his objection to admitting the Alcotest results into evidence. After holding an evidentiary hearing under N.J.R.E. 104, the municipal court denied Nagorniak’s suppression motion and entered a judgment of conviction for a per se violation. The court imposed a seven-month license suspension along with mandated fines and penalties. Pending this appeal, the court stayed the additional four months of license suspension resulting from the per se violation, but the three months of suspension resulting from the observational violation were served. Compare N.J.S.A. 39:4-50(a)(1)(i) (three-month license suspension for first-time observational offense), with N.J.S.A. 39:4-50(a)(1)(ii) (seven-month to one-year license suspension for first-time per se violation of .10 percent blood alcohol content or higher). The evidence presented at the suppression hearing was essentially undisputed. Once in the Alcotest room, a video was activated to record the defendant perform various psycho-physical sobriety tests. The wall clock showed that it was 12:06 a.m. While Radlinsky was busy preparing the testing device, with his back turned to the defendant, Lee described the sobriety tests and then supervised defendant’s performance. When demonstrating the walk-and-turn test, Lee also turned his back to the defendant for roughly fifteen seconds. When Nagorniak performed the same test, he walked away from Lee in the first series of steps, and then walked toward Lee after turning. Lee then read a statement to Nagorniak about his rights, and the consequences of refusing to submit to the Alcotest. Lee alternated between looking down at the statement, and making eye contact with the defendant. While Lee read the statement, Radlinsky often turned to look at Lee, and sometimes at Nagorniak, who sat off-camera in what appeared to be the corner of the room. After Lee completed reading the statement, Radlinsky explained the Alcotest test to Nagorniak, and Lee prepared paperwork with his back to Nargorniak. Then Radlinsky continued to ready the testing device, Lee again worked on paperwork with his back to the defendant, and then paced around the room, sometimes turning away from the defendant. For brief moments, neither officer faced the defendant; Radlinsky faced the machine and Lee faced his paperwork. When Radlinsky observed Nagorniak in the booking room, he stared continuously at the defendant. He did not see him regurgitate or ingest anything. Although Radlinsky admitted that while in the Alcotest room, he did not stare at the defendant or observe him continuously for twenty minutes, Radlinsky nonetheless was physically present and did not observe the defendant regurgitate, chew gum or tobacco, nor did he hear any burping. Radlinsky took the first Alcotest sample at 12:20 a.m., roughly fourteen minutes after entering the Alcotest room. Lee was not a certified Alcotest operator. There was no indication from the testimony that he was aware of the testing protocol to observe a defendant for twenty minutes before testing, to assure that a defendant does not regurgitate, vomit, or ingest substances that would taint the test results. In response to the municipal court judge’s questioning, he could not recall if the defendant did regurgitate. Q: During the 45 minutes that you were with the defendant, do you recall whether the defendant had either regurgitated alcohol or anything in his breath? A: I do not. Q: Do you recall if the defendant burped at any time? A: I do not. On cross-examination, defense counsel confirmed that the officer simply could not say whether the defendant regurgitated or not. Q: Now your testimony to the Court – I just want to make sure that I don’t mischaracterize it in summation, is that with respect to the defendant burping or regurgitating, or any of that nature, you just don’t have a recollection of that, correct? A: That’s correct. By contrast, when asked if the defendant chewed gum or tobacco, or actually consumed alcohol during the same period of time, Lee affirmatively stated that Nagorniak did not. Starting at 12:20 a.m., the defendant provided two measurable breath samples indicating a blood alcohol level of .15 percent. DISCUSSION. As a threshold matter, this court rejects the State’s argument that the The court will then construe the twenty-minute observational requirement, based on the 1. Twenty-Minute Observation is Required. The Supreme Court found that, subject to certain modifications, the Alcotest device “is generally sufficiently reliable … to permit its results to be admissible or to allow it to be utilized to prove a per se violation of the [driving-under-the-influence] statute.” As the State notes, the twenty-minute observational requirement is not embodied in the Court’s implementing order as a condition of admissibility. However, the order declares that the Alcotest itself – specifically, the Alcotest 7110 MKIII-C with New Jersey Firmware version 3.11 – is sufficiently reliable scientifically. In other words, it is capable of measuring, with sufficient accuracy, a subject’s blood alcohol level based on its analysis not of blood, but of the subject’s breath. However, the Court elsewhere identified, and adopted, the manufacturer’s protocols designed to assure that the subject’s breath sample is untainted. In addition to dictating various technical modifications to all Alcotest devices used in New Jersey, the Chun Court also conditioned admissibility on the State’s proof that (1) the specific device used was in working order, and had been inspected according to procedure; (2) the operator was certified; and (3) “the test was administered according to official procedure.” State v. Chun, supra, 194 N.J. at 134. The Court did so by reaffirming the conditions that it had previously applied to admissibility of Breathalyzer results in Romano v. Kimmelman, 96 N.J. 66, 81 (1984). “In matters relating to the Alcotest, the same general consideration that gave rise to these requirements must, of course apply.” State v. Chun, supra, 194 N.J. at 134. The Supreme Court thus adopted the manufacturer’s protocol that an operator or other person associated with the operator must observe the testing subject for twenty minutes before commencing the testing, and then throughout the testing, must assure that the subject does not burp or regurgitate or otherwise contaminate the breath sample. 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. [ See also Id. at 140 (noting that the operator’s responsibilities include “observing the subject to ensure that twenty minutes have passed and to be certain that the subject has neither swallowed nor regurgitated any substances during that time that would influence the tests results….”). The State bears the burden of persuasion, as the State seeks the admission of the Alcotest results. See Romano v. Kimmelman, supra, 96 N.J. at 91 (addressing the Breathalyzer, “the responsibility for establishing all conditions as to the admissibility … is properly allocated to the State”). Thus, the defendant is not obliged to present proof that he did vomit or regurgitate in order to suppress the Alcotest results, in the absence of affirmative proof from the State that the defendant was continuously observed. Of course, once the State has met the initial burden of persuasion by presenting an operator’s testimony that he observed no regurgitation or ingestion, a defendant is free to testify that he did regurgitate. Doing so would not apparently waive his right to remain silent on the merits of the State’s case. See N.J.R.E. 104(d) (“By testifying upon a preliminary matter, the accused does not become subject to cross-examination as to other issues in the case.”) The State must also satisfy its burden of persuasion regarding admissibility of Alcotest results by clear and convincing evidence. See Romano v. Kimmelman, supra, 96 N.J. at 90-91 (applying clear-and-convincing standard to admissibility of Breathalyzer, construing the words “clearly establish”). See also State v. Chun, supra, 194 N.J. at 92 (stating that proponent of scientific evidence must “clearly establish” reliability). Thus, the State must prove compliance with the twenty-minute observational requirement by clear and convincing evidence. Moreover, the Court did not indicate that it would accept “substantial compliance” with the preconditions of admissibility that it set forth. The Court drew bright lines, indicating what must be done to assure the scientific reliability of the Alcotest. This court has no basis to assume that slight deviations would be acceptable. 2. The Observation Requirement Construed. While this court rejects the State’s argument that Chun does not require a twenty-minute observation, it also rejects the defendant’s argument that the observation must consist of eye-to-eye contact for twenty continuous minutes and that only a trained operator may perform the observation. That is not apparently contemplated by the Chun decision’s plain language, nor is it consistent with the Court’s intent. This court’s view finds support in the decisions of other States’ courts that have construed continuous observation requirements in their law. First, the This definition of “observe” – encompassing visual and non-visual senses -- is implicit in our Supreme Court’s description of the operator’s duties. The Court noted that at the same time that the operator must “observe” the test-subject, he must also engage in a variety of activities that would unavoidably require him to avert his eyes, at least momentarily, from the subject. 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. [State v. Chun, supra, 194 N.J. at 140]. The Court apparently does not contemplate that the operator would have to restart the twenty-minute period if he had to turn away to attach a new mouthpiece, change the solution, or read instructions to the subject. Also, while the Court refers consistently to the obligation of the “operator” to conduct the twenty-minute observation, this court is unprepared to conclude that the Court would not accept the observations of another officer, assisting the actual operator of the Alcotest device. If a police department assigned an officer uncertified to operate the Alcotest to observe a defendant while the certified operator read instructions, prepared the machine, changed test solutions or attached new mouthpieces, the observation would be more thorough than if only the operator observed the subject. Therefore, it would run afoul of the express purpose of the observation – to ensure an untainted breath sample – to accept observations only by operators. On the other hand, whoever observes the subject must know why he is observing. If does not know in advance what to look for, he will not necessarily notice it. 3. Other States’ Courts. This court’s interpretation of the twenty-minute observation is consistent with the well-reasoned views of other states’ courts. We hold that continuous observation … does not mean an officer must keep his or her eyes focused on the subject for an uninterrupted 15-minute period. Observation is not limited to perception by sight; an officer may perceive a subject has eaten, drank, smoked, vomited or regurgitated by sound or smell and the perception by senses other than sight can be sufficient to comply with the regulation. …. In our view, uninterrupted eye contact is not necessary (and may not always be sufficient by itself) to determine whether the proscribed events have occurred, so long as the officer remains present with the subject and able by the use of all his or her senses to make that determination. [Manriquez v. Gourley, supra, 130 In Manriguez v. Gourley, the arresting officer was physically present with the defendant for thirty-seven minutes between arrest and administration of a breath test. Some of that period occurred while he was with the defendant in his patrol car. He talked to the defendant while in the car, and looked at him in his rearview mirror during the drive to the jail. When he arrived at the station, another officer secured the patrol vehicle, so the arresting officer remained in the defendant’s presence. The officer testified that the defendant did not eat, drink, smoke or vomit while in his presence. The court in Glassman v. State, 719 P.2d 1096 ( A In light of the regulation’s purpose, we do not interpret … [it] to require that an officer fix his unswerving gaze upon a subject…. Such an interpretation would not only be practically impossible to perform but would allow a subject to thwart compliance with the regulation simply by turning his head away from the observing officer. [ See also State v. Remsburg, 883 P.2d 993 (Idaho Ct. App. 1994) (fixed eye contact is not required if the officer remains in the defendant’s presence, despite occasionally averting his eyes while he read the advisory form to the defendant and programmed the device); People v. McDonough, 518 N.Y.S.2d 524 (App. Div.), appeal denied, 516 N.E.2d 1232 (N.Y. 1987) (paperwork preparation did not prevent observation); Peterson v. Wyoming Dep’t of Transportation, 158 P.3d 706, 710 (Wyo. 2007) (fixed staring of subject not required). See generally D. Landis, Necessity and Sufficiency of Proof that Tests of Blood Alcohol Concentration Were Conducted in Conformance With Prescribed Methods, 96 A.L.R.3d 745, § 9 (2008) (collecting other cases). At least one out-of-state court supports this court’s view, stated above, that if an officer leaves the area where the subject is being detained, then observation ceases. State v. Utz, 867 P.2d 1001 (Idaho Ct. App. 1993). See also State v. DeFranco, 144 P.3d 40 (Idaho Ct. App. 2006) (officer did not observe defendant where he rummaged in trunk of car, the defendant was seated in the vehicle, and the officer “could not have heard or smelled a belch or regurgitation because of the trunk lid and the rear window separating the men and the sound of the cruiser's running engine”). Other courts agree that the observation time-period is not relaxable based on a principal of substantial compliance, as the observation period relates to admissibility of evidence. There is also out-of-state authority for the principle that a certified operator may delegate observation duties to a non-certified person. State v. McVay, 731 P.2d 466, 467 ( In sum, this court’s construction of the twenty-minute observation requirement, as dictated by the Court in Chun, finds support in the decisions of other state courts. 3. Principles Applied. Applying the above principles, this court need not reach the issue of whether an officer driving a police cruiser can sufficiently observe a suspect to satisfy Chun. It may depend on the attentiveness of the officer, the placement of the defendant in the rear seat, and the configuration of the vehicle. It may also depend on the presence of other road noise and distractions that might prevent the officer from seeing, hearing, or smelling the defendant. However, officers Lee and Radlinsky observed the defendant Nagorniak for more than twenty continuous minutes after arriving at the station house. Radlinsky observed Nagorniak while Lee performed paperwork functions in the booking room. When Nagorniak entered the Alcotest room, Lee assumed observation. In the Alcotest room, Radlinsky had his back to Nagorniak who stood several feet away from him, performing psycho-physical testing, and responding to Lee’s inquiries. At that point, Radlinsky could not practically observe the defendant. While readying the machine at various points, Radlinsky also turned his back to Nagorniak, who was seated at the other side of the room, On the other hand, Lee did observe Nagorniak in the Alcotest room. Consistent with the principles expressed above, the observation did not cease when Lee turned his back for moments to perform the walk-and-turn test, or to complete paperwork. His senses of smell and sound were still in use. However, Lee’s failure of memory is fatal to the State’s case. Although Lee observed Nagorniak before submitting his breath sample, Lee could not recall what he observed. He could not attest to whether Nagorniak regurgitated or not. The purpose of the observation is to ensure that the defendant has not ingested or regurgitated substances that would taint the breath sample. Lee’s failure of recollection defeated the purpose of the observation. The State therefore has not met its burden to proving, by clear and convincing evidence, that (1) the operator or his agent observed the defendant for twenty minutes before administering the Alcotest, and (2) is certain that the defendant did not ingest or regurgitate substances that would have tainted the test results. CONCLUSION. For the reasons set forth above, the Alcotest results are excluded. Therefore, judgment shall be entered, on the basis of the defendant’s plea of guilty, on the observational case. The defendant shall be scheduled to appear in court for sentencing.
In State v. Nagorniak, 39-2008 (Law Div., March 5, 2009), Judge Mitchel Ostrer held that, in conformity with State v. Chun, 194 N.J. 54 (2008), the State is required to prove, by clear and convincing evidence, that law enforcement must observe a motorists suspected of driving while intoxicated (DWI) for twenty (20) minutes prior to administering the Alcotest.
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STATE OF NEW
LUBOMIR NAGORNIAK,INTRODUCTION.
