State v. Filson (2009)

COURT OF NEW JERSEY

LAW DIVISION � CRIMINAL PART

MERCER COUNTY

DOCKET NO. 18425

APPEAL NO. 37-2008

STATE OF NEW JERSEY, Criminal Action

Plaintiff,

v. DECISION

APPROVED FOR PUBLICATION

IAN FILSON,

JULY 22, 2009

Defendant.

COMMITTEE ON OPINIONS

Decided: February 17, 2009

Michael J. Mennuti, Assistant Prosecutor, for plaintiff (Joseph Bocchini, Mercer County

Prosecutor, attorney).

Peter H. Lederman for defendant (Lomurro, Davison, Eastman & Munoz, P.A.,

attorneys).

OSTRER, J.S.C.

INTRODUCTION

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. See State v. Chun, 194 N.J. 54, 79 (2008) (“[T]he

operator must observe the test subject for the required twenty-minute period . . . to ensure

that no alcohol has entered the person’s mouth while . . . awaiting the start of the testing

sequence.”), cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008).

One police officer was physically present with defendant during the traffic stop, the ride back

to the station house, the booking process and the Alcotest administration. However, the

officer left the room to stow defendant’s cell phone. Because of discrepancies in the

time-recording of various events, there was also insufficient evidence to establish clearly

and convincingly that, even absent the departure to stow the cell phone, the officer

observed defendant continuously for over twenty minutes before administering the

Alcotest. Therefore, the State failed to satisfy a precondition to admitting the Alcotest

results in evidence. In so concluding, this court relies on the Chun decision’s plain

language, the purpose of the twenty-minute observational requirement, and persuasive

out-of-state authority construing comparable requirements.

PROCEDURAL HISTORY

In the early morning hours of December 21, 2007, East Windsor Township police

officer Ryan Ballard issued a complaint-summons charging defendant with driving while

intoxicated. Based on an evidentiary hearing on March 11, 2008, the municipal court on

August 11, 2008, denied a defense motion to suppress the fruits of the motor vehicle stop

and the subsequent arrest. Defendant sought suppression on three grounds: (1) the police

lacked reasonable and articulable suspicion of a violation � failure to maintain a lane

under N.J.S.A. 39:4-88 � to justify the stop; (2) the police lacked a reasonable and

articulable suspicion of driving under the influence of intoxicating liquors, sufficient to

order him out of the car; and (3) after conducting roadside sobriety tests, the police

lacked probable cause to arrest defendant and require him to submit to an Alcotest. The

municipal court rejected each argument.

After a trial on August 11, 2008, the municipal court found that the State had not

proved beyond a reasonable doubt a so-called observational case, but found, on the basis

of the Alcotest results, that defendant committed a per se violation. The court rejected

the defense argument that the Alcotest results should have been disregarded because the

State had failed to prove that the officer had observed defendant continuously for twenty

minutes before administering the Alcotest. Based on an Alcotest reading of .13 percent

blood alcohol level, the municipal court ordered defendant’s license suspended for seven

months, and imposed other sanctions. The sentence was stayed pending appeal.

After argument February 17, 2009, on the municipal appeal, this court denied

anew defendant’s motion to suppress the fruits of the stop and arrest. However, the court

agreed that the Alcotest results should be excluded because the State had failed to prove

by clear and convincing evidence that it met foundational requirements for admitting the

results in evidence.

FACTS

This court addressed in its oral opinion, and will not repeat here, the facts

pertinent to its decision denying de novo defendant’s motion to suppress the fruits of the

stop, roadside investigation, and arrest. The court also addressed the facts relevant to its

de novo finding that the State had failed to prove beyond a reasonable doubt that

defendant committed an observational violation. (Although the State did not argue in

support of an observational violation on appeal, the court was nonetheless free to convict

on a different ground from that relied on by the municipal court. State v. Kashi,

180 N.J.

45, 48 (2004) (sustaining conviction on de novo review based on police observations

although municipal court found the defendant not guilty on that basis)).

After a de novo review of the record, the court finds the following facts relevant

to the twenty-minute-observation issue:

According to the complaint summons, Ballard certified that the offense occurred

at 1:45 a.m. He so testified that he first observed defendant around that time. He then

followed defendant for a mile and then conducted a motor vehicle stop. Ballard

estimated that he followed defendant for one to two minutes. His report of the incident

also asserted that the stop took place at 1:45 a.m., give or take less than a minute.

However, he conceded that his report’s statement that the stop took place at 1:45

a.m. was based on an extrapolation backward from 1:57 a.m., when he reported to

dispatch that he was arresting defendant. He stated that the “card was punched” at 1:57

a.m. That was when dispatch reported the arrest. However, Ballard admitted that the

punched time might not be exact. He simply approximated how long the field sobriety

tests had taken before the arrest, and came up with a “rough guess” of when the stop

occurred. He actually wrote the complaint summons, which reported the stop at 1:45

a.m., when he was back at the police station. Although Ballard had advised the

dispatcher of the stop when it started, he did not refer to the dispatcher’s radio log in

determining the time of the stop on the complaint summons. He did not claim to have

referred to a reliable clock contemporaneous with the stop. Ballard admitted that his

recorded time of the stop of 1:45 a.m. could have been five to ten minutes later or earlier

than he reported it. Thus, Ballard testified that the stop could have occurred as early as

1:35 a.m., and as late as 1:55 a.m.

According to the video recorder’s clock, which is visible on the videotape of the

stop, the motor vehicle stop began at 1:40 a.m. � not 1:45 a.m. as Ballard roughly

guessed. According to the tape, defendant and Ballard arrived at the East Windsor Police

Department at 2:07 a.m. Ballard admitted that the total elapsed time on the videotape of

twenty-seven minutes � from the stop to the arrival at the station house � was accurate.

Moreover, importantly, as will be discussed below, according to the video recorder’s

clock, Ballard placed defendant under arrest at 1:55 a.m., not 1:57 a.m. according to

when “the card was punched.” Defendant arrived at the station house twelve minutes

after the arrest, at 2:07 a.m.

Ballard testified that after processing defendant, he read the uniform rights form

at 2:18 a.m. This is reflected on the form, itself. Ballard also read a standard statement

prescribed by the New Jersey Motor Vehicle Commission before administering the

Alcotest. Ballard testified that he observed the defendant for an uninterrupted period of

twenty minutes in the booking area before reading the New Jersey Motor Vehicle

Commission’s standard statement.

He also testified that he observed him for twenty minutes before administering the

Alcotest. He testified that the defendant did not drink, burp or vomit during that time.

However, when asked, “How was it that you made this observation for a period of twenty

minutes,” Ballard answered, “I was with him in the booking area for that time.” Ballard

did not claim that he referred to a particular clock.

Ballard admitted that he discovered that defendant possessed a cell phone. He

also admitted that he took the cell phone and put it in a separate room. Consequently, he

left defendant unattended for as long as it took him to accomplish that task.

According to the printout from the Alcotest device, the arrest occurred at 2:00

a.m. (The record does not indicate when or how this time was entered into the device.)

Thus, the clock on the Alcotest device apparently was five minutes faster than the clock

on the video recorder, which recorded the arrest at 1:55 a.m. Consequently, the Alcotest

device’s clock would have indicated that defendant arrived at the station house at 2:12

a.m. (whereas, as noted above, the video recorder’s clock indicated a 2:07 a.m. arrival).

Defendant gave his first breath sample at 2:28 a.m., according to the Alcotest device.

Therefore, that was apparently only sixteen minutes after he arrived at the station house.

The second sample was taken at 2:32 a.m.. A control test was performed at 2:33 a.m.,

and the last ambient air blank was taken at 2:34 a.m.

After the Alcotest was completed, the uniform rights form indicated that

defendant agreed to talk to the officer at 2:54 a.m. On the other hand, his responses to

the drunk driver questionnaire indicate that he was questioned regarding his occupation

and medical status “prior to Miranda”2 at 2:45 a.m. However, Ballard testified that he

gave the Miranda warning before asking those occupational and medical questions.

According to the questionnaire, defendant claimed that his last drink was at 1:43 a.m. �

just two minutes before Ballard claimed he saw defendant on the road.

DISCUSSION

As a threshold matter, this court concludes that the State must satisfy the twenty-

minute observational requirement as a precondition to admitting Alcotest results into

evidence. The court will then construe the twenty-minute observational requirement,

based on the Chun Court’s plain language, as well as persuasive authority from other

jurisdictions. The court will then apply that requirement to the facts of this case.

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.” State v. Chun, supra, 194 N.J. at 65. The Court dictated some modifications to

address technical shortcomings of the device. The Court imposed other pre-conditions to

admissibility to preserve defendants’ confrontational rights. Other requirements, such as

periodic testing of the machines, were designed to assure that the machine used in a case

was in working order. The Court’s order detailed these requirements. Id. at 150-54.

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, 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.” Id. 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 protocol that an operator or other person

associated with the operator must observe the testing subject for twenty minutes before

starting the test, and then during 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.

[Id. at 79].

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, 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 defendant was continuously observed. Rather, the

State must present affirmative proof that an operator actually observed the defendant.

Under State v. Downie, 117 N.J. 450, 455-56, cert. denied, 498 U.S. 819,

111 S.Ct. 63, 112 L.Ed.2d 38 (1990), governing admissibility of Breathalyzer results, “the

operator must be sure that at least twenty minutes have expired since the last ingestion of

alcohol to avoid the presence of `mouth’ alcohol, which can give a falsely high reading.”

In State v. Dorman, 393 N.J. Super. 28, 31-32 (App. Div. 2007), affirmed on other

grounds, 195 N.J. 357 (2008), cert. denied, ___ U.S. ___, ___ S.Ct. ___, L.Ed.2d ___,

77 U.S.L.W. 3709 (U.S. June 29, 2009), the court apparently inferred that the State satisfied

the requirement, simply because the defendant was in the presence of the officer for

twenty-six minutes � between a roadside stop at 11:54 p.m. until the first Breathalyzer�

test at 12:22 back at the police station. The decision does not reflect that there was

affirmative testimony that the officer had actually observed the suspect, as opposed to

simply being present with him.

However, the case is distinguishable first, because the court was apparently

concerned only with the potential of ingestion of alcohol, which is by its nature likely to

be detected simply by being present with someone. By contrast, under Chun, a court

must exclude the possibility of ingestion of any foreign item, such as chewing gum or

tobacco, as well as the potential of regurgitation, including regurgitation into a closed

mouth. Those are more likely to be overlooked unless close observation is maintained.

Second, the Chun Court expressly stated “the operator must observe the test subject for

the required twenty-minute period of time.” 194 N.J. at 79.

Of course, once the State has met the initial burden of persuasion by presenting an

operator’s testimony that he or she observed no regurgitation or ingestion for twenty

minutes, 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.”).

As for the standard of proof, 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, there is no basis to conclude that the Court 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. Indeed, the Special Master, whom the Supreme Court appointed to review the

Alcotest’s reliability, found that meticulous adherence to the testing protocol, which

includes the twenty-minute observation requirement, should be a prerequisite to

admissibility of Alcotest results. Report and Recommendation of the Special Master,

Feb. 13, 2007, at 230, reprinted at 2007 N.J. Lexis 39, *267 (“Special Master’s Initial

Report”) (“Of course, the multiple-step testing protocol must be meticulously followed

before the test result is admitted in evidence.”). The Supreme Court adopted, as

modified, the Special Master’s findings. State v. Chun, supra, 194 N.J. at 149.

2. The Observation Requirement Construed

While Chun requires a twenty-minute observation, the observation need not

consist only of eye-to-eye contact. This conclusion finds support in the Chun decision’s

plain language, and the Court’s apparent intent. On the other hand, the observer must be

attentive, trained, and close enough to the subject to perceive through other senses a

tainting event if one occurs.

First, the Chun Court uses the terms “observe” and “observing” when referring to

the operator’s duties to assure an untainted breath sample. The common meaning of the

term is not restricted to maintaining eye contact. One dictionary defines “observe” to

mean “[t]o perceive; notice; see.” The American Heritage Dictionary of the English

Language (1971). A usage manual defines “observation” to mean “scrutiny or study.” B.

Garner, A Dictionary of Modern Legal Usage (1995) at 611. See also Manriquez v.

Gourley, 130 Cal. Rptr. 2d 209, 215-16 (Cal. App. 2003) (relying on the Oxford English

Dictionary, court holds that “observation” in context of breath test requirement means

the act of paying attention, marking, or noticing; and does not necessarily require

uninterrupted eye contact.).

Thus, a person may observe a subject by listening, smelling, or feeling, instead of

seeing. Yet, one cannot observe a subject who is physically so far from the observer that

the observational senses cannot detect something significant when it occurs. For example,

it would certainly stretch the term beyond its plain meaning to hold that an officer can

observe a subject while in another room. After such an interruption, the operator would

need to start a twenty-minute observation anew. That is consistent with the Special

Master’s review of the testing protocol. “The twenty-minute period must also restart if

there were any interruptions in the officer’s observation of the subject. (60T10).” Special

Master’s Initial Report at 133-34, 2007 N.J. Lexis at *132 (discussing New Jersey State

Police testing protocol, described by State Police Sergeant Kevin Flanagan).

It is unclear whether an unaccompanied officer can “observe” a defendant while

the officer is driving, especially if the defendant is seated behind an interior patrol-car-

barrier, and the officer is distracted by traffic, the radio, and road noise. Testimony

before the Special Master recognized the difficulty in observing a defendant while

transporting him or her to the station, unless a second officer assisted.

An operator may not begin the test on a subject prior to a

twenty-minute observation period to ensure that there is no

alcohol in the mouth cavity. (52T70). In New Jersey, the

twenty minutes may begin at the station or immediately

after the arrest provided that an officer can testify that the

observation was continuous and uninterrupted. For

example, Flanagan said that State Police ride double and a

trooper could sit in the back and properly observe the

subject. (52T71).

[Special Master’s Initial Report, at 133, 2007 N.J. Lexis at

*132 (emphasis added)].3

A definition of “observe” that encompasses 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, while engaging in

a variety of activities that would unavoidably require the operator to avert his or her 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 did 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.4

In sum, what constitutes observation must be determined in view of the purpose

of the observation requirement: to assure that the suspect has not ingested or regurgitated

substances that would confound the results. An officer’s observation should be of the

sort capable of detecting contamination if it actually occurred. Thus, an officer who

looks away must be close enough to detect contamination through aural or olfactory

senses. An officer who rides alone in the patrol car with the suspect must be especially

attentive to the suspect, free from road-related distractions, to spot regurgitation or

ingestion if it occurs.

3. Out-of-State Authority

This court’s interpretation of the twenty-minute observation is consistent with the

well-reasoned views of other states’ courts.

[W]e 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 Cal. Rptr. 2d at 216].

In Glasman v. State, 719 P.2d 1096 (Colo. Ct. App. 1986), the officer closely and

continuously observed a breath-test subject for twenty minutes, although he occasionally

averted his eyes from the defendant to prepare forms. The officer remained in the

defendant’s presence. “We do not read the regulation as requiring in all cases that the

officer stare fixedly at a test subject for twenty minutes; rather, compliance with the

regulation is a question of fact to be decided under the circumstances of each cases. . . .”

Id. at 1097. See also State v. Remsburg, 882 P.2d 993, 996 (Idaho Ct. App. 1994) (fixed

eye contact not required if the officer remains with defendant, despite occasionally

averting his eyes while he read the advisory form to defendant and programmed device);

People v. McDonough, 518 N.Y.S.2d 524, 526 (App. Div.) (paperwork preparation did

not prevent observation), appeal denied, 516 N.E.2d 1232 (N.Y. 1987); Peterson v.

Wyoming Dep’t of Transp., 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).

Some courts have included drive time with a single police officer, if the officer

establishes that he or she was attentive to what the suspect was doing in the back seat.

See, e.g., Williford v. State, 683 S.W.2d 228, 229 (Ark. 1985) (including time that the

officer observed the suspect “in the patrol car’s rear view mirror” where suspect sat on

the passenger side of the back seat); Manriquez v. Gourley, supra, 130 Cal. Rptr. 2d at

217-18, (the arresting officer talked to the defendant while in the car, and looked at him

in his rearview mirror during the drive to the jail); Barone v. State,736 P.2d 432, 434

(Colo. Ct. App. 1987) (including drive time where “officer said he watched [suspect] …

in the rear-view mirror and that he was not distracted by any radio calls or traffic noise”);

State v. Smith, 547 A.2d 69, 73 (Conn. App. Ct.) (including observation time while

officer operated the police cruiser), appeal denied, 551 A.2d 758 (Conn. 1988); State v.

Vialpando, 89 P.3d 209, 214 (Utah. Ct. App. 2004) (in-car observation accepted where

suspect sat handcuffed next to trooper in front seat, trooper monitored the suspect

“visually and aurally,” and there was minimal traffic and road-related distractions). But

see State v. Carson, 988 P.2d 225, 227 (Idaho Ct. App. 1999) (in-car observation rejected

because of foul weather noise interference and officer’s hearing impairment).

The Connecticut court in State v. Smith, supra, 547 A.2d at 73, noted that a

different interpretation would open the door to mischief by the defendant who could

“thwart compliance with the regulation simply by turning his head away from the

observing officer.” But see State v. Arnold, 80 S.W.3d 27, 30 (Tenn. Crim. App. 2002)

(finding the officer did not observe suspect in vehicle, or when he exited the car).

However, the Tennessee courts have adopted a narrower definition of observation than

this court finds consistent with Chun. See State v. McCaslin, 894 S.W.2d 310, 311

(Tenn. Crim. App. 1994) (court disregards six minutes of drive time, rejecting State

argument that “`eyeball to eyeball’ observation” not required).

Out-of-state authority 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, 43

(Idaho Ct. App. 2006) (officer did not observe defendant where he rummaged in the car’s

trunk, 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”). Likewise, if the suspect leaves

the area briefly, observation ceases. Mitchell v. Kansas Dep’t of Rev., supra, 200 P.3d at

502 (even applying substantial compliance standard, State failed to satisfy observation

requirement when suspect left room to use restroom for a couple of minutes); State v.

Gardner, 967 P.2d 465, 469 (N.M. Ct. App.) (observation requirement not satisfied when

suspect left the room briefly to use bathroom during the twenty-minute period), cert.

denied, 967 P.2d 447 (N.M. 1998).

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. See, e.g., Clawson v. State, 867 A.2d 187, 191-93 (Del. 2005) (test results

excluded because nineteen-minute observation inadequate to satisfy twenty-minute

requirement); Dep’t of Highway Safety and Motor Vehicles v. Farley, 633 So.2d 69, 71

(Fla. Dist. Ct. App. 1994) (where twenty-minute observation required, seventeen-minute

observation inadequate to sustain test); State v. Gardner, supra, 967 P.2d at 470-71 (court

rejects substantial compliance argument that would relax the twenty-minute time period).

But see, e.g., Wester v. State, 528 P.2d 1179, 1183-85 (Alaska 1974), cert. denied, 423 U.S. 836,

96 S.Ct. 60, 46 L.Ed.2d 54 (1975) (holding that substantial compliance with fifteen-minute observation

period was sufficient).

Moreover, a court may find that the observation requirement is unmet where there

is conflicting evidence of when the observation period started. See Commonwealth v.

Pierre, 890 N.E.2d 152 (Mass. App. Ct. 2008) (in view of conflicting and confusing

evidence of when arrest, transport, and testing occurred, Commonwealth failed to prove

compliance with observation requirement); DeBoer v. Nebraska Dep’t of Motor Vehicles,

751 N.W.2d 651, 656 (Neb. Ct. App. 2008) (court finds observation of only thirteen

minutes, based on testing records, notwithstanding operator’s testimony that he observed

for the required fifteen minutes according to his wristwatch).

In sum, this court’s interpretation of the Chun Court’s twenty-minute observation

requirement finds support in other state court decisions.

4. 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, Ballard did not specifically testify that he observed defendant

during the ride back to the station house. Nor did Ballard provide details about his own

attentiveness, defendant’s placement in the vehicle, and the absence of road-related

distractions. Therefore, the court cannot find that Ballard observed defendant while in

the patrol car.

Consequently, the State must satisfy the twenty-minute observation requirement

by proving that Ballard observed defendant for twenty minutes in the station house.

However, the evidence does not clearly and convincingly persuade this fact-finder that

Ballard did that. Although this court gives due deference to the municipal court judge’s

finding that Ballard did not intend to deceive, the issue is not his honesty, but his

accuracy. The court reaches this conclusion for three reasons.

First, the observation period was interrupted when Ballard left defendant

unattended, so Ballard could remove defendant’s cell phone from the room. While it was

likely for a short period of time, it was nonetheless a significant interruption in the

observation. As discussed above, consistent with meticulous enforcement of testing

protocols, the State has failed to prove continuous observation for twenty minutes.

Secondly, Ballard’s lack of confidence regarding his own time estimates

undermines his assertion that he observed defendant for twenty minutes. Ballard is

unsure when the stop actually occurred; it could have been as early as 1:35 a.m. or as late

as 1:55 a.m. He gave a “rough guess” that the stop occurred at 1:45 a.m. by

approximating how long it took him to administer field sobriety tests before he placed the

defendant under arrest, allegedly at 1:57 a.m. He did not claim that he referred to a clock

when he conducted the stop. Likewise, although he asserted that he observed defendant

for twenty consecutive minutes, Ballard did not claim he looked at a particular clock to

mark the time.

Ballard’s timekeeping on the drunk driver questionnaire and uniform rights form

also raises doubts about his accuracy. According to Ballard, defendant agreed to talk to

Ballard at 2:54 a.m., but provided information about his employment and medical status

nine minutes earlier, at 2:45 a.m. That would make sense if the officer, consistent with

the apparent intent of the forms, interviewed defendant about his employment and

medical status, then reiterated the Miranda warning, then sought information about the

substantive offense. However, Ballard testified that he gave the Miranda warning at 2:18

a.m. and did not repeat it.

Third, extrapolating time from the video recorder’s clock and the Alcotest device,

it appears that the first breath sample was taken only sixteen minutes after defendant

arrived at the station house. Moreover, the observation likely did not begin immediately

upon arrival in the sally port, because the officer first had to exit his vehicle, likely step

away to secure his weapon, and then remove the handcuffed defendant from the vehicle

and escort him to the booking room. As discussed above, according to the video

recorder’s clock, defendant was arrested at 1:55 a.m. According to the Alcotest device,

the arrest occurred at 2:00 a.m. Therefore, when the video recorder’s clock indicated that

defendant arrived at the stationhouse at 2:07 a.m., the Alcotest device’s clock would have

indicated a 2:12 a.m. arrival. The first breath sample was taken at 2:28 a.m. according to

the Alcotest device, before twenty minutes of observation could be completed.

Alternatively, if the stop did indeed occur at 1:45 a.m., as Ballard guessed, and

not at 1:40 a.m. as the video recorder indicated, then defendant still would have arrived at

the station house at 2:12 a.m. That is because the undisputed elapsed time between the

stop and the arrival was twenty-seven minutes, according to the video recorder’s timer.

Twenty-seven minutes after 1:45 a.m. would have been 2:12 a.m.

The State argued that the clock by which Ballard estimated the time of the stop

was not necessarily synchronized with the clock on the Alcotest device. However, this

misses the point that the State bears the burden of persuasion. The State must prove,

clearly and convincingly, that the officer observed defendant for twenty minutes. As

noted above, Ballard’s conclusory assertion that he observed defendant for twenty

minutes simply is unpersuasive, given the discrepancies in the various recorded times,

Ballard’s own lack of precision about when other events occurred, and the extrapolation

between the video recorder’s time-of-arrest and the Alcotest device’s time-of-arrest,

which indicates that defendant was in the station house for only sixteen minutes before

supplying his first breath sample.

The State therefore has not met its burden to prove, clearly and convincingly, that

the operator continuously observed defendant for twenty minutes before administering

the Alcotest. Therefore, the court excludes the results from evidence.

CONCLUSION

Since the Alcotest results are excluded, a judgment of not guilty shall be entered

on the charge of a per se violation of N.J.S.A. 39:4-50.

 

 

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION � CRIMINAL PART

MERCER COUNTY

DOCKET NO. 18425

APPEAL NO. 37-2008

 

STATE OF NEW JERSEY, Criminal Action

 

Plaintiff,

 

v. DECISION

APPROVED FOR PUBLICATION

IAN FILSON,

JULY 22, 2009

Defendant.

COMMITTEE ON OPINIONS

Decided: February 17, 2009

 

Michael J. Mennuti, Assistant Prosecutor, for plaintiff (Joseph Bocchini, Mercer County

Prosecutor, attorney).

 

Peter H. Lederman for defendant (Lomurro, Davison, Eastman & Munoz, P.A.,

attorneys).

 

OSTRER, J.S.C.

 

INTRODUCTION

 

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. See State v. Chun, 194 N.J. 54, 79 (2008) (“[T]he

 

operator must observe the test subject for the required twenty-minute period . . . to ensure

 

that no alcohol has entered the person’s mouth while . . . awaiting the start of the testing

 

sequence.”), cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed.2d 41 (2008).

 

One police officer was physically present with defendant during the traffic stop, the ride back

 

to the station house, the booking process and the Alcotest administration. However, the

 

officer left the room to stow defendant’s cell phone. Because of discrepancies in the

 

time-recording of various events, there was also insufficient evidence to establish clearly

 

and convincingly that, even absent the departure to stow the cell phone, the officer

 

observed defendant continuously for over twenty minutes before administering the

 

Alcotest. Therefore, the State failed to satisfy a precondition to admitting the Alcotest

 

results in evidence. In so concluding, this court relies on the Chun decision’s plain

 

language, the purpose of the twenty-minute observational requirement, and persuasive

 

out-of-state authority construing comparable requirements.

 

PROCEDURAL HISTORY

 

In the early morning hours of December 21, 2007, East Windsor Township police

 

officer Ryan Ballard issued a complaint-summons charging defendant with driving while

 

intoxicated. Based on an evidentiary hearing on March 11, 2008, the municipal court on

 

August 11, 2008, denied a defense motion to suppress the fruits of the motor vehicle stop

 

and the subsequent arrest. Defendant sought suppression on three grounds: (1) the police

 

lacked reasonable and articulable suspicion of a violation � failure to maintain a lane

 

under N.J.S.A. 39:4-88 � to justify the stop; (2) the police lacked a reasonable and

 

articulable suspicion of driving under the influence of intoxicating liquors, sufficient to

 

order him out of the car; and (3) after conducting roadside sobriety tests, the police

 

lacked probable cause to arrest defendant and require him to submit to an Alcotest. The

 

municipal court rejected each argument.

 

 

After a trial on August 11, 2008, the municipal court found that the State had not

 

proved beyond a reasonable doubt a so-called observational case, but found, on the basis

 

of the Alcotest results, that defendant committed a per se violation. The court rejected

 

the defense argument that the Alcotest results should have been disregarded because the

 

State had failed to prove that the officer had observed defendant continuously for twenty

 

minutes before administering the Alcotest. Based on an Alcotest reading of .13 percent

 

blood alcohol level, the municipal court ordered defendant’s license suspended for seven

 

months, and imposed other sanctions. The sentence was stayed pending appeal.

 

After argument February 17, 2009, on the municipal appeal, this court denied

 

anew defendant’s motion to suppress the fruits of the stop and arrest. However, the court

 

agreed that the Alcotest results should be excluded because the State had failed to prove

 

by clear and convincing evidence that it met foundational requirements for admitting the

 

results in evidence.

 

FACTS

 

This court addressed in its oral opinion, and will not repeat here, the facts

 

pertinent to its decision denying de novo defendant’s motion to suppress the fruits of the

 

stop, roadside investigation, and arrest. The court also addressed the facts relevant to its

 

de novo finding that the State had failed to prove beyond a reasonable doubt that

 

defendant committed an observational violation. (Although the State did not argue in

 

support of an observational violation on appeal, the court was nonetheless free to convict

 

on a different ground from that relied on by the municipal court. State v. Kashi,

180 N.J.

45, 48 (2004) (sustaining conviction on de novo review based on police observations

 

although municipal court found the defendant not guilty on that basis)).

 

 

 

 

After a de novo review of the record, the court finds the following facts relevant

 

to the twenty-minute-observation issue:

 

According to the complaint summons, Ballard certified that the offense occurred

 

at 1:45 a.m. He so testified that he first observed defendant around that time. He then

 

followed defendant for a mile and then conducted a motor vehicle stop. Ballard

 

estimated that he followed defendant for one to two minutes. His report of the incident

 

also asserted that the stop took place at 1:45 a.m., give or take less than a minute.

 

However, he conceded that his report’s statement that the stop took place at 1:45

 

a.m. was based on an extrapolation backward from 1:57 a.m., when he reported to

 

dispatch that he was arresting defendant. He stated that the “card was punched” at 1:57

 

a.m. That was when dispatch reported the arrest. However, Ballard admitted that the

 

punched time might not be exact. He simply approximated how long the field sobriety

 

tests had taken before the arrest, and came up with a “rough guess” of when the stop

 

occurred. He actually wrote the complaint summons, which reported the stop at 1:45

 

a.m., when he was back at the police station. Although Ballard had advised the

 

dispatcher of the stop when it started, he did not refer to the dispatcher’s radio log in

 

determining the time of the stop on the complaint summons. He did not claim to have

 

referred to a reliable clock contemporaneous with the stop. Ballard admitted that his

 

recorded time of the stop of 1:45 a.m. could have been five to ten minutes later or earlier

 

than he reported it. Thus, Ballard testified that the stop could have occurred as early as

 

1:35 a.m., and as late as 1:55 a.m.

 

According to the video recorder’s clock, which is visible on the videotape of the

 

stop, the motor vehicle stop began at 1:40 a.m. � not 1:45 a.m. as Ballard roughly

 

guessed. According to the tape, defendant and Ballard arrived at the East Windsor Police

 

Department at 2:07 a.m. Ballard admitted that the total elapsed time on the videotape of

 

twenty-seven minutes � from the stop to the arrival at the station house � was accurate.

 

Moreover, importantly, as will be discussed below, according to the video recorder’s

 

clock, Ballard placed defendant under arrest at 1:55 a.m., not 1:57 a.m. according to

 

when “the card was punched.” Defendant arrived at the station house twelve minutes

 

after the arrest, at 2:07 a.m.

 

Ballard testified that after processing defendant, he read the uniform rights form

 

at 2:18 a.m. This is reflected on the form, itself. Ballard also read a standard statement

 

prescribed by the New Jersey Motor Vehicle Commission before administering the

 

Alcotest. Ballard testified that he observed the defendant for an uninterrupted period of

 

twenty minutes in the booking area before reading the New Jersey Motor Vehicle

 

Commission’s standard statement.

 

He also testified that he observed him for twenty minutes before administering the

 

Alcotest. He testified that the defendant did not drink, burp or vomit during that time.

 

However, when asked, “How was it that you made this observation for a period of twenty

 

minutes,” Ballard answered, “I was with him in the booking area for that time.” Ballard

 

did not claim that he referred to a particular clock.

 

Ballard admitted that he discovered that defendant possessed a cell phone. He

 

also admitted that he took the cell phone and put it in a separate room. Consequently, he

 

left defendant unattended for as long as it took him to accomplish that task.

 

According to the printout from the Alcotest device, the arrest occurred at 2:00

 

a.m. (The record does not indicate when or how this time was entered into the device.)

 

Thus, the clock on the Alcotest device apparently was five minutes faster than the clock

 

on the video recorder, which recorded the arrest at 1:55 a.m. Consequently, the Alcotest

 

device’s clock would have indicated that defendant arrived at the station house at 2:12

 

a.m. (whereas, as noted above, the video recorder’s clock indicated a 2:07 a.m. arrival).

 

Defendant gave his first breath sample at 2:28 a.m., according to the Alcotest device.

 

Therefore, that was apparently only sixteen minutes after he arrived at the station house.

 

The second sample was taken at 2:32 a.m.. A control test was performed at 2:33 a.m.,

 

and the last ambient air blank was taken at 2:34 a.m.

 

After the Alcotest was completed, the uniform rights form indicated that

 

defendant agreed to talk to the officer at 2:54 a.m. On the other hand, his responses to

 

the drunk driver questionnaire indicate that he was questioned regarding his occupation

 

and medical status “prior to Miranda”2 at 2:45 a.m. However, Ballard testified that he

 

gave the Miranda warning before asking those occupational and medical questions.

 

According to the questionnaire, defendant claimed that his last drink was at 1:43 a.m. �

 

just two minutes before Ballard claimed he saw defendant on the road.

 

DISCUSSION

 

As a threshold matter, this court concludes that the State must satisfy the twenty-

 

minute observational requirement as a precondition to admitting Alcotest results into

 

evidence. The court will then construe the twenty-minute observational requirement,

 

based on the Chun Court’s plain language, as well as persuasive authority from other

 

jurisdictions. The court will then apply that requirement to the facts of this case.

 

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.” State v. Chun, supra, 194 N.J. at 65. The Court dictated some modifications to

 

address technical shortcomings of the device. The Court imposed other pre-conditions to

 

admissibility to preserve defendants’ confrontational rights. Other requirements, such as

 

periodic testing of the machines, were designed to assure that the machine used in a case

 

was in working order. The Court’s order detailed these requirements. Id. at 150-54.

 

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, 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.” Id. 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 protocol that an operator or other person

 

associated with the operator must observe the testing subject for twenty minutes before

 

starting the test, and then during 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.

 

[Id. at 79].

 

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, 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 defendant was continuously observed. Rather, the

 

State must present affirmative proof that an operator actually observed the defendant.

 

Under State v. Downie, 117 N.J. 450, 455-56, cert. denied, 498 U.S. 819,

 

111 S.Ct. 63, 112 L.Ed.2d 38 (1990), governing admissibility of Breathalyzer results, “the

 

operator must be sure that at least twenty minutes have expired since the last ingestion of

 

alcohol to avoid the presence of `mouth’ alcohol, which can give a falsely high reading.”

 

In State v. Dorman, 393 N.J. Super. 28, 31-32 (App. Div. 2007), affirmed on other

 

grounds, 195 N.J. 357 (2008), cert. denied, ___ U.S. ___, ___ S.Ct. ___, L.Ed.2d ___,

 

77 U.S.L.W. 3709 (U.S. June 29, 2009), the court apparently inferred that the State satisfied

 

the requirement, simply because the defendant was in the presence of the officer for

 

twenty-six minutes � between a roadside stop at 11:54 p.m. until the first Breathalyzer�

 

test at 12:22 back at the police station. The decision does not reflect that there was

 

affirmative testimony that the officer had actually observed the suspect, as opposed to

 

simply being present with him.

 

However, the case is distinguishable first, because the court was apparently

 

concerned only with the potential of ingestion of alcohol, which is by its nature likely to

 

be detected simply by being present with someone. By contrast, under Chun, a court

 

must exclude the possibility of ingestion of any foreign item, such as chewing gum or

 

tobacco, as well as the potential of regurgitation, including regurgitation into a closed

 

mouth. Those are more likely to be overlooked unless close observation is maintained.

 

Second, the Chun Court expressly stated “the operator must observe the test subject for

 

the required twenty-minute period of time.” 194 N.J. at 79.

 

Of course, once the State has met the initial burden of persuasion by presenting an

 

operator’s testimony that he or she observed no regurgitation or ingestion for twenty

 

minutes, 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.”).

 

As for the standard of proof, 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, there is no basis to conclude that the Court 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. Indeed, the Special Master, whom the Supreme Court appointed to review the

 

Alcotest’s reliability, found that meticulous adherence to the testing protocol, which

 

includes the twenty-minute observation requirement, should be a prerequisite to

 

admissibility of Alcotest results. Report and Recommendation of the Special Master,

 

Feb. 13, 2007, at 230, reprinted at 2007 N.J. Lexis 39, *267 (“Special Master’s Initial

 

Report”) (“Of course, the multiple-step testing protocol must be meticulously followed

 

before the test result is admitted in evidence.”). The Supreme Court adopted, as

 

modified, the Special Master’s findings. State v. Chun, supra, 194 N.J. at 149.

 

2. The Observation Requirement Construed

 

While Chun requires a twenty-minute observation, the observation need not

 

consist only of eye-to-eye contact. This conclusion finds support in the Chun decision’s

 

plain language, and the Court’s apparent intent. On the other hand, the observer must be

 

attentive, trained, and close enough to the subject to perceive through other senses a

 

tainting event if one occurs.

 

First, the Chun Court uses the terms “observe” and “observing” when referring to

 

the operator’s duties to assure an untainted breath sample. The common meaning of the

 

term is not restricted to maintaining eye contact. One dictionary defines “observe” to

 

mean “[t]o perceive; notice; see.” The American Heritage Dictionary of the English

 

Language (1971). A usage manual defines “observation” to mean “scrutiny or study.” B.

 

Garner, A Dictionary of Modern Legal Usage (1995) at 611. See also Manriquez v.

 

Gourley, 130 Cal. Rptr. 2d 209, 215-16 (Cal. App. 2003) (relying on the Oxford English

 

Dictionary, court holds that “observation” in context of breath test requirement means

 

the act of paying attention, marking, or noticing; and does not necessarily require

 

uninterrupted eye contact.).

 

Thus, a person may observe a subject by listening, smelling, or feeling, instead of

 

seeing. Yet, one cannot observe a subject who is physically so far from the observer that

 

the observational senses cannot detect something significant when it occurs. For example,

 

it would certainly stretch the term beyond its plain meaning to hold that an officer can

 

observe a subject while in another room. After such an interruption, the operator would

 

need to start a twenty-minute observation anew. That is consistent with the Special

 

Master’s review of the testing protocol. “The twenty-minute period must also restart if

 

there were any interruptions in the officer’s observation of the subject. (60T10).” Special

 

Master’s Initial Report at 133-34, 2007 N.J. Lexis at *132 (discussing New Jersey State

 

Police testing protocol, described by State Police Sergeant Kevin Flanagan).

 

It is unclear whether an unaccompanied officer can “observe” a defendant while

 

the officer is driving, especially if the defendant is seated behind an interior patrol-car-

 

barrier, and the officer is distracted by traffic, the radio, and road noise. Testimony

 

before the Special Master recognized the difficulty in observing a defendant while

 

transporting him or her to the station, unless a second officer assisted.

 

An operator may not begin the test on a subject prior to a

twenty-minute observation period to ensure that there is no

alcohol in the mouth cavity. (52T70). In New Jersey, the

twenty minutes may begin at the station or immediately

after the arrest provided that an officer can testify that the

observation was continuous and uninterrupted. For

example, Flanagan said that State Police ride double and a

trooper could sit in the back and properly observe the

subject. (52T71).

 

[Special Master’s Initial Report, at 133, 2007 N.J. Lexis at

*132 (emphasis added)].3

 

A definition of “observe” that encompasses 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, while engaging in

 

a variety of activities that would unavoidably require the operator to avert his or her 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 did 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.4

 

In sum, what constitutes observation must be determined in view of the purpose

 

of the observation requirement: to assure that the suspect has not ingested or regurgitated

 

substances that would confound the results. An officer’s observation should be of the

 

sort capable of detecting contamination if it actually occurred. Thus, an officer who

 

looks away must be close enough to detect contamination through aural or olfactory

 

senses. An officer who rides alone in the patrol car with the suspect must be especially

 

attentive to the suspect, free from road-related distractions, to spot regurgitation or

 

ingestion if it occurs.

 

3. Out-of-State Authority

 

This court’s interpretation of the twenty-minute observation is consistent with the

 

well-reasoned views of other states’ courts.

 

[W]e 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 Cal. Rptr. 2d at 216].

 

In Glasman v. State, 719 P.2d 1096 (Colo. Ct. App. 1986), the officer closely and

 

continuously observed a breath-test subject for twenty minutes, although he occasionally

 

averted his eyes from the defendant to prepare forms. The officer remained in the

 

defendant’s presence. “We do not read the regulation as requiring in all cases that the

 

officer stare fixedly at a test subject for twenty minutes; rather, compliance with the

 

regulation is a question of fact to be decided under the circumstances of each cases. . . .”

 

Id. at 1097. See also State v. Remsburg, 882 P.2d 993, 996 (Idaho Ct. App. 1994) (fixed

 

eye contact not required if the officer remains with defendant, despite occasionally

 

averting his eyes while he read the advisory form to defendant and programmed device);

 

People v. McDonough, 518 N.Y.S.2d 524, 526 (App. Div.) (paperwork preparation did

 

not prevent observation), appeal denied, 516 N.E.2d 1232 (N.Y. 1987); Peterson v.

 

Wyoming Dep’t of Transp., 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).

 

Some courts have included drive time with a single police officer, if the officer

 

establishes that he or she was attentive to what the suspect was doing in the back seat.

 

See, e.g., Williford v. State, 683 S.W.2d 228, 229 (Ark. 1985) (including time that the

 

officer observed the suspect “in the patrol car’s rear view mirror” where suspect sat on

 

the passenger side of the back seat); Manriquez v. Gourley, supra, 130 Cal. Rptr. 2d at

 

217-18, (the arresting officer talked to the defendant while in the car, and looked at him

 

in his rearview mirror during the drive to the jail); Barone v. State,736 P.2d 432, 434

 

(Colo. Ct. App. 1987) (including drive time where “officer said he watched [suspect] …

 

in the rear-view mirror and that he was not distracted by any radio calls or traffic noise”);

 

State v. Smith, 547 A.2d 69, 73 (Conn. App. Ct.) (including observation time while

 

officer operated the police cruiser), appeal denied, 551 A.2d 758 (Conn. 1988); State v.

 

Vialpando, 89 P.3d 209, 214 (Utah. Ct. App. 2004) (in-car observation accepted where

 

suspect sat handcuffed next to trooper in front seat, trooper monitored the suspect

 

“visually and aurally,” and there was minimal traffic and road-related distractions). But

 

see State v. Carson, 988 P.2d 225, 227 (Idaho Ct. App. 1999) (in-car observation rejected

 

because of foul weather noise interference and officer’s hearing impairment).

 

The Connecticut court in State v. Smith, supra, 547 A.2d at 73, noted that a

 

different interpretation would open the door to mischief by the defendant who could

 

“thwart compliance with the regulation simply by turning his head away from the

 

observing officer.” But see State v. Arnold, 80 S.W.3d 27, 30 (Tenn. Crim. App. 2002)

 

(finding the officer did not observe suspect in vehicle, or when he exited the car).

 

However, the Tennessee courts have adopted a narrower definition of observation than

 

this court finds consistent with Chun. See State v. McCaslin, 894 S.W.2d 310, 311

 

(Tenn. Crim. App. 1994) (court disregards six minutes of drive time, rejecting State

 

argument that “`eyeball to eyeball’ observation” not required).

 

Out-of-state authority 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, 43

 

(Idaho Ct. App. 2006) (officer did not observe defendant where he rummaged in the car’s

 

trunk, 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”). Likewise, if the suspect leaves

 

the area briefly, observation ceases. Mitchell v. Kansas Dep’t of Rev., supra, 200 P.3d at

 

502 (even applying substantial compliance standard, State failed to satisfy observation

 

requirement when suspect left room to use restroom for a couple of minutes); State v.

 

Gardner, 967 P.2d 465, 469 (N.M. Ct. App.) (observation requirement not satisfied when

 

suspect left the room briefly to use bathroom during the twenty-minute period), cert.

 

denied, 967 P.2d 447 (N.M. 1998).

 

 

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. See, e.g., Clawson v. State, 867 A.2d 187, 191-93 (Del. 2005) (test results

 

excluded because nineteen-minute observation inadequate to satisfy twenty-minute

 

requirement); Dep’t of Highway Safety and Motor Vehicles v. Farley, 633 So.2d 69, 71

 

(Fla. Dist. Ct. App. 1994) (where twenty-minute observation required, seventeen-minute

 

observation inadequate to sustain test); State v. Gardner, supra, 967 P.2d at 470-71 (court

 

rejects substantial compliance argument that would relax the twenty-minute time period).

 

But see, e.g., Wester v. State, 528 P.2d 1179, 1183-85 (Alaska 1974), cert. denied, 423 U.S. 836,

 

96 S.Ct. 60, 46 L.Ed.2d 54 (1975) (holding that substantial compliance with fifteen-minute observation

 

period was sufficient).

 

Moreover, a court may find that the observation requirement is unmet where there

 

is conflicting evidence of when the observation period started. See Commonwealth v.

 

Pierre, 890 N.E.2d 152 (Mass. App. Ct. 2008) (in view of conflicting and confusing

 

evidence of when arrest, transport, and testing occurred, Commonwealth failed to prove

 

compliance with observation requirement); DeBoer v. Nebraska Dep’t of Motor Vehicles,

 

 

751 N.W.2d 651, 656 (Neb. Ct. App. 2008) (court finds observation of only thirteen

 

minutes, based on testing records, notwithstanding operator’s testimony that he observed

 

for the required fifteen minutes according to his wristwatch).

 

In sum, this court’s interpretation of the Chun Court’s twenty-minute observation

 

requirement finds support in other state court decisions.

 

4. 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, Ballard did not specifically testify that he observed defendant

 

during the ride back to the station house. Nor did Ballard provide details about his own

 

attentiveness, defendant’s placement in the vehicle, and the absence of road-related

 

distractions. Therefore, the court cannot find that Ballard observed defendant while in

 

the patrol car.

 

Consequently, the State must satisfy the twenty-minute observation requirement

 

by proving that Ballard observed defendant for twenty minutes in the station house.

 

However, the evidence does not clearly and convincingly persuade this fact-finder that

 

Ballard did that. Although this court gives due deference to the municipal court judge’s

 

finding that Ballard did not intend to deceive, the issue is not his honesty, but his

 

accuracy. The court reaches this conclusion for three reasons.

 

First, the observation period was interrupted when Ballard left defendant

 

unattended, so Ballard could remove defendant’s cell phone from the room. While it was

 

likely for a short period of time, it was nonetheless a significant interruption in the

 

observation. As discussed above, consistent with meticulous enforcement of testing

 

protocols, the State has failed to prove continuous observation for twenty minutes.

 

Secondly, Ballard’s lack of confidence regarding his own time estimates

 

undermines his assertion that he observed defendant for twenty minutes. Ballard is

 

unsure when the stop actually occurred; it could have been as early as 1:35 a.m. or as late

 

as 1:55 a.m. He gave a “rough guess” that the stop occurred at 1:45 a.m. by

 

approximating how long it took him to administer field sobriety tests before he placed the

 

defendant under arrest, allegedly at 1:57 a.m. He did not claim that he referred to a clock

 

when he conducted the stop. Likewise, although he asserted that he observed defendant

 

for twenty consecutive minutes, Ballard did not claim he looked at a particular clock to

 

mark the time.

 

Ballard’s timekeeping on the drunk driver questionnaire and uniform rights form

 

also raises doubts about his accuracy. According to Ballard, defendant agreed to talk to

 

Ballard at 2:54 a.m., but provided information about his employment and medical status

 

nine minutes earlier, at 2:45 a.m. That would make sense if the officer, consistent with

 

the apparent intent of the forms, interviewed defendant about his employment and

 

medical status, then reiterated the Miranda warning, then sought information about the

 

substantive offense. However, Ballard testified that he gave the Miranda warning at 2:18

 

a.m. and did not repeat it.

 

Third, extrapolating time from the video recorder’s clock and the Alcotest device,

 

it appears that the first breath sample was taken only sixteen minutes after defendant

 

arrived at the station house. Moreover, the observation likely did not begin immediately

 

upon arrival in the sally port, because the officer first had to exit his vehicle, likely step

 

away to secure his weapon, and then remove the handcuffed defendant from the vehicle

 

and escort him to the booking room. As discussed above, according to the video

 

recorder’s clock, defendant was arrested at 1:55 a.m. According to the Alcotest device,

 

the arrest occurred at 2:00 a.m. Therefore, when the video recorder’s clock indicated that

 

defendant arrived at the stationhouse at 2:07 a.m., the Alcotest device’s clock would have

 

indicated a 2:12 a.m. arrival. The first breath sample was taken at 2:28 a.m. according to

 

the Alcotest device, before twenty minutes of observation could be completed.

 

Alternatively, if the stop did indeed occur at 1:45 a.m., as Ballard guessed, and

 

not at 1:40 a.m. as the video recorder indicated, then defendant still would have arrived at

 

the station house at 2:12 a.m. That is because the undisputed elapsed time between the

 

stop and the arrival was twenty-seven minutes, according to the video recorder’s timer.

 

Twenty-seven minutes after 1:45 a.m. would have been 2:12 a.m.

 

The State argued that the clock by which Ballard estimated the time of the stop

 

was not necessarily synchronized with the clock on the Alcotest device. However, this

 

misses the point that the State bears the burden of persuasion. The State must prove,

 

clearly and convincingly, that the officer observed defendant for twenty minutes. As

 

noted above, Ballard’s conclusory assertion that he observed defendant for twenty

 

minutes simply is unpersuasive, given the discrepancies in the various recorded times,

 

Ballard’s own lack of precision about when other events occurred, and the extrapolation

 

between the video recorder’s time-of-arrest and the Alcotest device’s time-of-arrest,

 

which indicates that defendant was in the station house for only sixteen minutes before

 

supplying his first breath sample.

 

The State therefore has not met its burden to prove, clearly and convincingly, that

 

the operator continuously observed defendant for twenty minutes before administering

 

the Alcotest. Therefore, the court excludes the results from evidence.

 

 

CONCLUSION

 

Since the Alcotest results are excluded, a judgment of not guilty shall be entered

 

on the charge of a per se violation of N.J.S.A. 39:4-50.

 

 

 

 

 

 

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