The Jersey Lawyer

On December 2, 2009, the Appellate Division held in the case of State v. Ugrovics, that in a DWI prosecution, the State is only required to establish that a DUI suspect did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the Alcotest results for a period of at least twenty minutes prior to the administration of the Alcotest, and that the identity of the observer is not germane to this point.  Previously, some courts had held that it was required that the officer observing the defendant for the twenty minute period was the same officer who administered the Alcotest; however, this case clarified that any competent person may observe the defendant for the twenty minute period.  A conviction of DWI in New Jersey carries serious consequences, including loss of license, heavy fines, and possibly jail time; therefore, anyone charged with driving while intoxicated in New Jersey should contact a New Jersey DWI lawyer for assistance.

In the seminal case of State v. Chun, the Supreme Court held that any DWI suspect who was being administered an Alcotest to determine his level of intoxication had to be observed for twenty minutes prior to the test to insure that he did not ingest or regurgitate anything.  The reason for this is because alcohol present in the mouth either by the suspect ingesting or regurgitating something could skew the results of the Alcotest and render them unreliable.  Many Municipal courts had determined that the officer that administers the Alcotest to the suspect must be the same officer that observes the defendant.  Several Superior Courts had upheld this view.  The logic behind this view is that only an officer that is trained in administering the Alcotest would know what to look for during the observation period that might render the results of the test unreliable.

In the present case, defendant was pulled over on the Hamburg Turnpike in Riverdale, New Jersey for speeding.  The officer smelled alcohol and defendant admitted that he had consumed alcohol that night.  When defendant was brought to the police station, the arresting officer observed him for twenty minutes, and then another officer administered the Alcotest.  During trial, the State stipulated that it would have only called the arresting officer to testify that defendant had been observed for twenty minutes.   The arresting officer was not trained to administer the Alcotest.  The defendant entered a conditional plea of guilty reserving the right to challenge whether the twenty minute observation period has to be performed by the officer administering the Alcotest, or could be performed by any officer. 

The Appellate Division first recognized that the defendant’s position that only the operator can observe the test subject for the twenty minute period is supported by the language of the Court’s opinion in State v. Chun.  However, the Appellate Division held that a literal application of the language used in Chun would create an unduly and unintended restriction on the State’s ability to prosecute DWI cases based on the results of an Alcotest.  According to the Appellate Division, construing the twenty-minute requirement as bestowing upon the operator of the Alcotest the sole responsibility of monitoring the test subject would elevate form over substance.  Accordingly, the Appellate Division panel decided to ignore the plain words used by the Supreme Court in the Chun opinion, and to substitute its own judgment in holding that it is permissible for any witness to observe the test subject, not just the Alcotest operator.

As this case makes clear, contentious legal issues often arise in the context of prosecutions for DWI in New Jersey.  Therefore, anyone charged with drunk driving in New Jersey should contact a New Jersey DWI lawyer for an analysis of the factual and legal issues that may be raised in the case.  DWI charges carry serious consequences, and defendants charged with DWI should take advantage of the assistance that a New Jersey DWI lawyer may be able to provide.