One way to possibly beat a drunk driving (DUI-DWI) charge in New Jersey municipal courts or on appeal is to show that the police did not continuously observe the suspect for 20 minutes prior to the administration of the breath test (alcotest/breathalyzer).
In such situations, a defense attorney may file a motion to suppress the results of the breath test. If this motion is successful, the results of the breath test may be thrown out, leaving the state to prove its case only on the observations of the arresting officer.
Our Supreme Court has 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, 194 N.J. 54, 65 (2008). The Court dictated some modifications to address technical shortcomings of the device and imposed other pre-conditions to admissibility to preserve defendants’ confrontational rights. Ibid. These included the requirement that an Alcotest operator observe a defendant for twenty minutes before administering the test. Id. at 79.
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 (R) 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.” 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 Kimmelman, supra, 96 N.J. at 91 (addressing the Breathalyzer(R), “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. State v. Filson, 2009 N.J. Super. LEXIS 168 (Law Div. Feb. 17, 2009). Rather, the State must present affirmative proof that an operator actually observed the defendant. Ibid.
Under State v. Downie, 117 N.J. 450, 455-56, 569 cert. denied, 498 U.S. 819, 111 S. Ct. 63, 112 L. Ed. 2d 38 (1990), governing admissibility of Breathalyzer(R) 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), aff’d, 195 N.J. 357 (2008), cert. denied, __ U.S. __, __ S.Ct. __ , 174 L. Ed. 2d 601 (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(R) 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. Ibid.
However, 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. Supra, 194 N.J. at 79. Those are more likely to be overlooked unless close observation is maintained. Filson, supra, 2009 N.J. Super. LEXIS 168. Moreover, 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.
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 Kimmelman, supra, 96 N.J. at 90-91 (applying clear-and-convincing standard to admissibility of Breathalyzer (R), construing the words “clearly establish”). See also 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. Filson, supra, 2009 N.J. Super. LEXIS 168. The Court drew bright lines, indicating what must be done to assure the scientific reliability of the Alcotest. Ibid. 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. See 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. Chun, supra, 194 N.J. at 149.
While Chun requires a twenty-minute observation, the observation need not consist only of eye-to-eye contact. Filson, supra, 2009 N.J. Super. LEXIS 168. This conclusion finds support in the Chun decision’s plain language, and the Court’s apparent intent. Ibid. 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. Ibid.
First, the Chun Court uses the terms “observe” and “observing” when referring to the operator’s duties to assure an untainted breath sample. Ibid. The common meaning of the term is not restricted to maintaining eye contact. Ibid. 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 Marquez v. Gourley, 105 Cal. App. 4th 1227, 130 (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. Filson, supra, 2009 N.J. Super. LEXIS 168. 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. Ibid. 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. Ibid. After such an interruption, the operator would need to start a twenty-minute observation anew. Ibid. That is consistent with the Special Master’s review of the testing protocol. Ibid.
“The twenty-minute period must also restart if there were any interruptions in the officer’s observation of the subject. 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). 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. 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. Ibid.