Naturally, less than a week after writing my last entry on this topic, the New Jersey Superior Court – Appellate Division weighed in on whether a different officer who administers the breath test may conduct the 20-minute observation period. In a decision that offers a mixed back for NJ DWI-DUI defendants and their attorneys, the court in State v. Ugrovics held that yes, a different officer may do so.
The court held that “Consistent with the underlying principles articulated by the Court in Chun, we hold that the State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest. The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time. The identity of the observer is not germane to this central point. The State can meet this burden by calling any competent witness who can so attest.”
This is a departure from the Law Division’s unpublished decision in State v. Nucifora, which held that the Supreme Court’s decision in State v. Chun clearly held that it must be the same officer. Further, the court in Ugrovics appears to ignore the clear language of the Supreme Court in Chun.
Nevertheless, Ugrovics is clear that there must be testimony from an officer who can attest that the defendant was continuously observed for the 20 minutes prior to the administration of the breath test to ensure that the subject did not regurgitate alcohol into his or her mouth.