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Wednesday, December 02, 2009

State v Urgrovics full opinion

DOCKET NO. A-4906-08T4







Submitted October 20, 2009 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Municipal Appeal
No. 08-055.

Brian R. Donnelly, attorney for appellant.

Robert A. Bianchi, Morris County Prosecutor,
attorney for respondent (Paula Jordao, Assistant
Prosecutor, on the brief).

The opinion of the court was delivered by


Defendant Joel M. Ugrovics was arrested and charged with
driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). This
appeal concerns the admissibility of the results of an Alcotest
administered to defendant in connection with this charge. By
leave granted, the State appeals from the order of the Law

December 2, 2009

December 2, 2009
Division suppressing the results of the Alcotest because the
arresting officer, rather than the Alcotest operator, was the
person who observed defendant during the twenty minutes prior to
him taking the test. In reaching this conclusion, the trial
court relied on what it characterized as the "procedures"
mandated by the Supreme Court in State v. Chun, 194 N.J. 54,
cert. denied, ____ U.S. ____, 129 S. Ct. 158, 172 L. Ed. 2d 41
We reverse. 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.
We will limit our factual recitation to the events that
relate directly to the discrete issue under review.

On July 19, 2008, Riverdale Police Department Officer Eric
Hollenstein was conducting radar checks on Hamburg Turnpike when
he observed defendant's vehicle traveling at forty-five m.p.h.
in a twenty-five m.p.h. zone. When Hollenstein stopped the car
to issue a summons for speeding, he detected an odor of alcohol
emanating from inside the vehicle and noticed that Ugrovics, the
only person in the car, had glassy eyes. In response to
Hollenstein's questions, defendant admitted that he had consumed
alcoholic beverages that evening.
Against these facts, Hollenstein concluded that he had a
sufficient basis to ask defendant to perform a series of field
sobriety exercises. Given the limited scope of our review, we
will dispense with describing the details of the tests defendant
performed. Suffice it to say that despite Hollenstein's clear
verbal instructions, defendant failed to perform these tests as
directed. Based on the totality of the circumstances,
Hollenstein concluded that he had probable cause to charge
defendant with DWI and arrested him accordingly.
Hollenstein transported defendant from the scene of the
motor vehicle stop to the Riverdale Police Station for the
purpose of processing the arrest and administering an Alcotest
to defendant. Officer Robert DiGirolamo was the station's
Alcotest operator on that date and was therefore the person who
administered the test to defendant.
For purposes of this appeal the State stipulated that
Hollenstein would have been the only witness it would have
called who would have testified that he continuously observed
defendant for at least twenty minutes before defendant took the
Alcotest. On this sole issue, the State proffered, and the
trial court accepted, that Hollenstein would have testified that
during this twenty-minute window of time defendant did not burp,
regurgitate or ingest any alcohol. The two separate breath
samples taken from defendant yielded a blood alcohol
concentration (BAC) of .13.
Defendant pled guilty before the Riverdale Municipal Court
to DWI, reserving his right to challenge the results of the
Alcotest based on the State's failure to show that the Alcotest
operator was the person who observed defendant for a period of
at least twenty minutes before the test was administered. In
the course of accepting defendant's guilty plea, the Municipal
Court Judge framed the issue thusly:
[MUNICIPAL] COURT: Okay. So I'll make it
clear that in regard to this conditional
plea, . . . [t]here is no issue that the
defendant in this case was observed for 20
minutes[.] [B]ut he was not observed by the
Alcotest operator, which (sic) is Officer
DiGerolmo . . .[.]


[MUNICIPAL] COURT: He was observed by
Officer Hollenstein, who did observe him for
the 20-minute period –

[MUNICIPAL PROSECUTOR]: At headquarters.

[MUNICIPAL] COURT: -- at headquarters, but
he is not a certified Alcotest operator.


[MUNICIPAL] COURT: No other officer had
made observations, so there's [no] other
officer involved, except Officer Hollenstein
and that there are no other issues dealing
with any foreign substance entering
Defendant's mouth or vomiting or any use of
alcohol or any other regurgitation issue.

In addition, the only issue then on the
appeal [to the Law Division] would be
whether the 20-minute observation has to be
conducted by the operator to meet the [Chun]
standard. Does that sound correct?



In accepting defendant's conditional guilty plea, the
Municipal Court Judge rejected defendant's argument that, under
Chun, the only person competent to observe defendant during this
critical twenty-minute window of time was the operator of the
On defendant's appeal to the Law Division pursuant to Rule
3:23-2, the court accepted defendant's argument and suppressed
the Alcotest BAC reading. The Law Division Judge gave the
following explanation in support of his ruling:
So the Court finds that - in this case, as
the State conceded in their (sic) - it was
stipulated - the State meaning the
prosecutor below - that the Alcotest
operator did not observe the defendant for
the required 20-minute period. Instead, he
was observed by Officer Hollenstein, who was
not a certified Alcotest operator. That may
or may not be of any moment.

As such, the Alcotest operator did not
observe defendant for the required 20
minutes prior to administering the test.
Therefore, based upon this Court's reading
of Chun, the readings are deemed
inadmissible because the procedure which was
mandated by Chun was not followed.

The Court will vacate the guilty plea
entered, which was conditional. Remand the
matter to the Borough of Riverdale Municipal
Court to be heard on the other testimony,
including the testimony dealing with what
I'll call the psycho-physical tests.


Against this backdrop, we will now address the central
issue in the case. We start by reaffirming our standard of
Ordinarily, we review a judgment of the Law Division under
a sufficiency of the evidence standard. That is, in conducting
the review required under Rule 3:23-8(a), the Law Division's
judgment must be supported by sufficient credible evidence in
the record. State v. Segars, 172 N.J. 481, 488 (2002).
However, "[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference" on appeal. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, because the Law Division's judgment rested entirely on its
interpretation of the Court's opinion in Chun, our scope of
review is de novo, without affording such judgment any special
In Chun, the Court addressed the scientific reliability of
the Alcotest 7110 MKIII-C evidentiary breath-testing device.
Chun, supra, 194 N.J. at 65. After reviewing the findings of
the Special Master, the Supreme Court held that "the Alcotest,
utilizing New Jersey Firmware version 3.11, is generally
scientifically reliable, but that certain modifications are
required in order to permit its results to be admissible or to
allow it to be utilized to prove a per se violation of the
statute." Id.
In the course of considering the scientific reliability of
the Alcotest, the Court explained the procedures employed in
administering the test to suspected drunk drivers. Id. at 77-
84. During that recitation, the Court gave the following
description of how the test is administered:
The actual administration of the test is
performed by one of the more than 5000
certified Alcotest operators in New Jersey.
When a person has been arrested, based on
probable cause that the person has been
driving while intoxicated, he or she is
transported to the police station to provide
a sample for the Alcotest. The Alcotest,
consisting of a keyboard, an external
printer, and the testing device itself, is
positioned on a table near where the test
subject is seated.

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

[Id. at 79.]

This description of the test is the central basis for
defendant's claim, and the trial court's ruling, that the
Alcotest operator is the only person authorized to observe a
test subject during this twenty-minute period. The State, on
the other hand, argues that the Court's only concern was to
ensure that the test subject had not placed anything in his or
her mouth that may compromise the reliability of the test.

According to the State, this can be established through
witnesses other than the operator of the Alcotest.
We acknowledge that defendant's position is, at first
blush, supported by what appears to be the plain language used
by the Court in Chun. However, a literal, unexamined
application of such language here would create an unduly and, in
our view, unintended restriction on the State's ability to
prosecute DWI cases based on the results of an Alcotest.
With respect to this critical twenty-minute period, the key
concern of the Court in Chun was to ensure that the test subject
did not ingest, regurgitate or place anything in his or her
mouth that could affect the reliability of the test. Id. at
140. In this context, the Court described the role of the
operator as follows:
[T]he operator will play a relatively lesser
role here than has been the case in the
past. 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.


The Court even predicted that as the Alcotest "becomes more
routine, some, or even most, defendants will eventually forgo
cross-examination of the operator in light of the limited
information that can be achieved in that effort." Id. at 141
Thus, there is a key difference between the
responsibilities of the operator in administering the Alcotest
and the State's burden of proof at trial. At trial, the State
must establish, by clear and convincing evidence,1 that, during
the twenty-minute period immediately preceding the
administration of the test, the test subject did not ingest,
regurgitate or place anything in his or her mouth that may
compromise the reliability of the test results. This can be

Although not directly addressed by the Court in Chun, we are
satisfied that the State's burden of proof as to the
admissibility of the Alcotest remains clear and convincing
evidence. See Romano v. Kimmelman, 96 N.J. 66, 90-91 (1984).
In Romano, the Court identified the following three conditions
of admissibility: (1) the proper operating condition of the
machine; (2) the requisite qualifications of the operator; and
(3) the proper administration of the test. Id. at 91. Here,
since our discussion is limited to the twenty-minute period of
observation of the test subject, the State must establish that
element of admissibility by clear and convincing evidence. We
discern no basis in law to deviate from this well-established
accomplished through the testimony of any competent witness who
can so attest. By contrast, the operator's principal role is to
ensure that the procedures leading to the actual taking of the
test have been strictly followed.
As noted earlier, one of the benefits associated with the
Alcotest is its automation, which is intended to reduce the role
of the operator and thereby minimize the potential for human
error. To construe the twenty-minute observation requirement as
bestowing upon the operator the exclusive responsibility to
monitor the test subject elevates form over substance and places
an importance on the operator that is inconsistent with what the
Chun Court envisioned to be his or her diminished role.2 Id. at
141 n.44.
The order of the Law Division suppressing the BAC reading
obtained from defendant through the administration of an
Alcotest is reversed. Defendant's guilty plea, based on these
reading, is reinstated and the matter is remanded for such
further proceedings as may be warranted.
Reversed and remanded.

The Law Division reached a similar conclusion in State v.
Filson, 409 N.J. Super 245, 255 (Law Div. 2009).