Want to keep IRS auditors away? Keep your earnings under $200,000 and they won’t bother you 99 percent of the time.

IRS enforcement numbers, released Tuesday, show that returns under that amount have a 1 percent chance of getting audited.

Returns showing income of $200,000 and above have a nearly 3 percent audit chance. The percentage jumps to more than 6 percent for returns showing earnings of $1 million or more.

The percentages apply to both individual and joint returns.

The number of audits jumped 11 percent from 2008 to 2009 for returns with earnings of $200,000 or more, but rose 30 percent for returns showing earnings of $1 million or more. For those under $200,000 the number of audits remained steady.

The IRS conducted 1.4 million audits of individual returns in the financial year ended Sept. 30, with more than 1 million conducted through correspondence with the taxpayer. The others were conducted through face-to-face meetings with IRS auditors.

The IRS does not do random audits, but does conduct “research audits” that will test compliance in business tax categories. In 2010, the target will be payroll taxes, according to Steve Miller, deputy commissioner for enforcement.

What happens if you’re audited while unemployed? The IRS may give you a break.

“While our assessments were up, the ability to pay went down drastically” due to the economy, Miller said. “We have a series of tools. We can have them pay partially, over time. If the money is not collectible, it’s treated as non-collectible. It’s going to depend on each case.

“We have to ensure there’s a balance between our responsibility to collect taxes with economic realities. We give people more time and determine how fast they can pay and whether they can pay.”

The total revenue collected from IRS enforcement actions, $48.9 billion in 2009, is a drop from $56.4 billion in 2008 and $59.2 billion in 2007.

Miller said the higher numbers in 2007 and 2008 reflect collections from settlements of several major tax shelter cases.

The IRS has stepped up its examination of tax-exempt organizations, checking the books of more than 10,000 groups in 2009 compared to 7,800 the previous year.

The number of business tax returns examined was down slightly in 2009 from the previous year.

If you’ve been following this blog for any length of time you’ll know that I’m a big, big fan of the cheap crystal case. The idea of a hard plastic shell giving its life for your mobile phone as it smashes to the ground is quite simply the stuff of genius.

Crystal cases are all over eBay, but if you live in or near Toronto and don’t want to wait for an order to be shipped from Hong Kong or the UK there are now two shops at Pacific Mall selling them for reasonable prices.

(Somebody needs a website…)

Square Mobile has hands down the best deal on cases — $5 each, no haggling required. They’re located on the aisle against the east wall of the building, near the north end.

Gotta hand it to the Communication Store for deviously snagging PacificMall.mobi as their URL. Their cases are offered at $10 each — a bit of a rip-off, but even a pasty white guy like yours truly can negotiate a lower price per case if more than one is purchased. They’re located on the same aisle, just a couple of stores south.

Please note that I’m not getting any special consideration from either of these vendors; I’m merely pointing them out as a public service to you. I still see a fair number of people wandering around Pacific Mall looking like they’re lost and/or overwhelmed — if you’d like me to demystify Pacific Mall any further by all means let me know!

The Washington Times summarizes five top copyright cases which were decided in 2009:

http://www.washingtonpost.com/wp-dyn/content/article/2009/12/18/AR2009121803800.html?wpisrc=nl_pmtech

I have been ‘waving’ the last month with the new Google wave (see the looooong presentation video here) but as many others I haven´t really found my way of using it. But today I got a little inspired when I stumpled upon this video that captures the Social Media highlights of 2009 in a Wave:

And here are some Social media cases from 2009:

Merry Christmas!

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This is another from last week’s luggage carousel – I’m still catching up, I’m afraid.

In the case of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353 the Court of Appeal has allowed the appeal of a woman with HIV/AIDS (albeit only to the extent of remitting it to the tribunal) on the basis that she was a lawful entrant, had previously been granted leave on the basis of her medical condition and had been lawfully resident in the UK for quite some time on that basis. These features were found to distinguish the case from Article 3 cases like D v UK and N v UK and placed the woman in a different legal context.

Her co-appellant was unsuccessful on the basis that the immigration judge had found that she could find work in Tanzania and support her treatment costs. Giving the leading judgment, Sedley LJ went on:

JA’s is a markedly different case. Her position as a continuously lawful entrant places her in a different legal class from N, so that she is not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom. There is no finding by the AIT that she has much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal (see Razgar [2004] UKHL 27). Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgment capable of tipping the balance of proportionality in her favour.

It was possible for JA to succeed on the basis of Article 8, essentially. This comes hot on the heels of KH (Afghanistan), in which the Court reaffirmed the high threshold to be met in Article 3 cases.

JA is the first bit of good news for HIV/AIDS sufferers facing removal for a very long time. It is a humane decision and may prove to be of assistance to the unknown number of claimants who were previously granted leave on the basis that the UK had assumed responsibility for their treatment, only to be told a few years later that the UK had later unassumed responsibility.

UKBA have changed their removals policy, and not in a nice way. The announcement letter to stakeholders is available here and does not really tell half the story. In essence, the 72 hour notice period for removals is to be waived in a wide range of cases and no-notice removals will become more widespread. This prevents access to a lawyer or the courts, basically, and it means that unlawful (why we don’t just say illegal still escapes me) removals can go ahead unchallenged.

Irritatingly, the new policy allegedly becomes effective on 11 January 2010, but in the meantime the old policy has been removed from the UKBA website and only the new one is available.

UKBA have been secretly trialling no-notice removals over the last year or so. There have been several cases (I previously posted about one of them) that have exposed the existence of secret policy exceptions to the normal rule that all removees receive at least 72 hours notice. Indeed, it is these cases that for Free Movement and perhaps others provided final confirmation that UKBA are institutionally unlawful, in the sense that there is a pervasive lack of respect for the rule of law and an ingrained culture of acting contrary to the requirements of law.

The new policy is, of course, couched in the weasely words and siren sounds one comes to expect of UKBA press releases and policy documents. The section that most sticks in the throat (there is competition) is about a so-called ‘best interests’ policy for not giving children any notice of their impending removal. Apparently it is in their best interests only to find out when they rock up at the airport. The modern UKBA tendency to dress up way they want to do as what they should do in the best interests of children is a disgraceful development.

ILPA is furious about the changes, which have not been the subject of any consultation despite numerous attempts by ILPA to meet with UKBA about this issue. I’ve never seen such a strongly worded and genuinely angry letter from the organisation.

Further to my earlier posts on this, the judgment is now available on the Supreme Court website.

It makes interesting reading for any immigration lawyer. I will pick out some of my edited highlights.

Firstly, there is commentary on how the Immigration Rules should be interpreted. The earlier Lords case of Odelola is, inevitably, approved. Lord Brown, delivering the leading judgment, goes on to say that nevertheless, the meaning of the rules

“…is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that:

‘In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State . . .’

Free Movement cannot help but notice that this would be rather helpful in any appeal against MS (Somalia)…

Lord Brown goes on to comment that it is evident that the IDIs have frequently been issued inconsistently with the rules. This is very true, and many times the courts and tribunal have shown their exasperation at the conflicts between rules and policies, most recently in the long residence case of SA (long residence concession) Bangladesh [2009] UKAIT 00051. This is a to edged sword, though, as many of the inconsistencies are actually more generous than the rules, or at least more generous than the rules first appear on an initial reading.

Support of kindly uncles OK, C. Dickens relieved

Lord Brown decides to treat all of the relevant rules in the same way: 281, 297 and 317, in relation to spouses and partners, children and other dependant relatives respectively. Here, the Secretary of State is to an extent hoist by his own petard. Having argued that the change to rule 297 specifically in relation to children did not prevent the other immigration rules from being construed to prevent third party support, the logical consequence of the Court being minded to allow the appeal in relation to 281 and 317, where the wording is more ambiguous, is that the appeal is also allowed in relation to 297. This comes as a pleasant surprise to Free Movement, who thought the new wording of rule 297 was fairly clear cut against third party support.

In the end, the ratio is essentially that there is no reason of construction to prevent third party support, third party support is already accepted in relation to accommodation and there is no rationale for distinguishing between monetary support and accommodation.

The Court also allows joint sponsorship, and without any need for joint sponsors to have been named in the right box on the application form. Further, the Court also comments as follows:

Provided only that the relative abroad is getting funds on which he is wholly or mainly dependent and which he would not be getting save for his relative present and settled in the UK, that is sufficient. It is not necessary for the funds ever to have been part of the settled relative’s own personal resources.

The judgment allows an ECO or the tribunal to look at the question of whether third party support is sufficiently well-evidenced and reliable-looking to take into account when considering the question of maintenance. This is simply a sensible outcome.

       SUPERIOR COURT OF NEW JERSEY
       APPELLATE DIVISION
       DOCKET NO.  A-3211-07T4

STATE OF NEW JERSEY,

 Plaintiff-Respondent,

v.

THOMAS M. WILKINS,

 Defendant-Appellant.

______________________________________
  Before Judges Fuentes and Chambers.

  On appeal from Superior Court of New Jersey,
  Law Division, Atlantic County, Municipal
  Appeal No. 90-07.

  Levow & Associates, attorneys for appellant
  (Evan M. Levow, of counsel and on the brief;
  Michael B. Mankowski, on the brief).

  Theodore F. L. Housel, Atlantic County Prosecutor,
  attorney for respondent (Jack J. Lipari, Assistant
  Prosecutor, of counsel and on the brief).

PER CURIAM

 Defendant Thomas Wilkins appeals from the order of the Law Division finding him guilty of driving while intoxicated, (DWI).  N.J.S.A. 39:4-50.  We affirm.
The matter came before the Law Division by way of defendant’s petition for a de novo review of his conviction in the Folsom Borough Municipal Court.  We gather the following facts from the evidence presented to the Law Division, in the form of the record developed before the Municipal Court.
On March 19, 2005 at approximately 8:20 p.m., New Jersey State Police Trooper Christopher Tropiano observed defendant’s black Oldsmobile traveling westbound on Black Horse Pike, US 322, just west of 8th Street, a road he described as a “straight and level roadway.”
After following the car for approximately one mile, Tropiano saw defendant’s vehicle “weave in and out of its lane of travel.  And at one point the vehicle’s passenger wheels crossed over the white line and entered the shoulder of the highway.”
Tropiano activated his overhead lights and signaled defendant to pull over.  Upon stopping defendant, Tropiano detected an odor of alcohol emanating from defendant’s mouth.  Defendant slurred his speech moved slowly and deliberately as he searched for his driving credentials.  When asked if he had had anything to drink, defendant admitted that he had consumed alcohol earlier in the day.
Tropiano asked defendant to come out of his car and perform a series of field sobriety tests.  Defendant complied, but also told Tropiano that he suffered from a bad hip and experienced hip pain.  Tropiano asked defendant to perform two tests.
The first test required defendant to stand on the foot of his choice, and raise the other leg six inches off the ground and count to thirty.  In his first attempt, defendant raised his left leg approximately six inches off the ground, and after counting to two, placed his leg down.  Thereafter, defendant again raised his left leg approximately six inches off the ground, and placed it down after counting to five.
 The second test required defendant to walk heel to toe seven steps, turn and repeat.  Tropiano physically demonstrated the test as he described it verbally.  Defendant attempted two separate times to perform the test as directed; he failed to do so each time.  Both times, defendant walked without touching heel to toe, and lost balance.  In addition to these physical tests, Tropiano asked defendant to recite the alphabet, starting at the letter “G” and stopping at “Q.”  Defendant successfully completed this test.
 Based on these observations, Tropiano concluded that he had probable cause to arrest defendant and charged him with DWI, and failure to maintain lane.  N.J.S.A. 39:4-88b.  Tropiano transported defendant in his marked police car to the Buena Vista State Police barracks, arriving at 8:37 p.m.  While en route, Tropiano noticed that “a strong odor of an alcoholic beverage filled” the car.  Once inside the Buena Vista barracks, Tropiano handcuffed defendant by one hand to a metal bench, where he sat through processing.
Tropiano testified that defendant was in his presence and under his direct observation from the time he was arrested at the scene, until he was handcuffed to the bench.  Tropiano also searched defendant before handcuffing him to the bench.  From the time of his arrest at the scene, until he was handcuffed to the bench, Tropiano did not see defendant put anything into his mouth.  Defendant consented to taking the breathalyzer test after Tropiano read to him a version of the standard drinking and driving form.
It is undisputed that Tropiano read to defendant the New Jersey Motor Vehicle Commission standard statement for operators of motor vehicle, N.J.S.A. 39:4-50.2(e), as revised effective January 21, 2004, instead of the revised form effective April 26, 2004.  According to defendant, 1 of the eleven paragraphs in the form, the updated form only differed from the older form in the following three ways:
(1) The older form reflects a maximum period of suspension of driving privileges for failing to submit to the test as “no less than six months”; the updated form reads “no less than seven months”;
(2) The older form lists the monetary penalties as “no less than $250 and no more than $1,000″; the updated form reads “no less than $300, and no more than $2,000″;
(3) the older form provides that “any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense”;  The updated form reads “may be independent of any license suspension . . . .” (Emphasis added).
 State Police Sergeant James Brady entered the processing room where defendant was located at approximately 8:55 p.m.  He administered the first breathalyzer test at 9:05 p.m.  According to Brady, he performed all fifteen steps required, while completing the required form reflecting this procedure, checking off the appropriate box on the form each time he completed the step.  He repeated the process for the second test, performed at 9:13 p.m.  Defendant’s blood alcohol content (BAC) on both tests was 0.14.  Brady testified that defendant “absolutely [did] not” put anything in his mouth while in his presence.
 Defendant’s only witness was Dr. Gary Lage, an expert in toxicology.  For the purpose of offering an opinion in this case, Lage testified that he accepted as true defendant’s statement to him that, on the day of the incident, he consumed a total of three beers over a period of seven hours.
According to Lage, on the day of the incident, defendant was suffering from uncontrolled diabetes, resulting in a condition called ketoacidosis.  When a person becomes ketoacidotic the body starts developing acetone as an energy source, as opposed to glucose, which a healthy body uses as energy.  This chemical reaction caused the same type of effect as ethyl alcohol, and would react similarly on the breathalyzer test.
The machine could react as if it were detecting ethyl alcohol instead of the acetone it was actually detecting.  According to Lage, this condition could account for a blood alcohol reading of as high as 0.06 percent.  Lage thus opined, with a reasonable degree of scientific certainty, that defendant’s medical condition rendered the breathalyzer results unreliable.
Against this backdrop, Judge Neustadter rejected Lage’s testimony, and accepted the testimony of the State’s witnesses.  He credited Tropiano’s testimony concerning defendant’s condition at the time of detention by the road side.  Judge Neustadter also found that defendant’s BAC reading of .14 was dispositive, because the two tests were properly performed.
Defendant now appeals raising the following arguments.
POINT I

BECAUSE DEFENDANT WAS READ THE INCORRECT IMPLIED CONSENT FORM, DEFENDANT WAS NOT PROPERLY ADVISED OF HIS RIGHTS, AND THE BREATH RESULTS IN THIS CASE MUST BE SUPPRESSED.

POINT II

THE BREATHALYZER TESTING WAS CONDUCTED IMPROPERLY AND THE BREATH TESTING RESULTS SHOULD HAVE BEEN SUPPRESSED.

POINT III

THE CONVICTION OF THE DEFENDANT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT.

 We reject these arguments and affirm.  Despite the mistake made by Trooper Brady in reading to defendant an outdated consent form, there is no evidence that this error materially affected or in any way compromised defendant’s ability to understand his obligation to submit to the breathalyzer test.  The State also established that defendant was observed by both Tropiano and Brady, for a period of at least twenty minutes before the two breathalyzer tests were administered.  State v. Chun, 194 N.J. 54, 79 (2008).  Indeed, Tropiano testified that he observed defendant from the moment he stopped his car on the road, until he was brought to the room where the two tests were administered.
 The balance of defendant’s arguments lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(2).
 Affirmed.

       SUPERIOR COURT OF NEW JERSEY
       APPELLATE DIVISION
       DOCKET NO.  A-5044-07T4

STATE OF NEW JERSEY,

 Plaintiff-Respondent,

 v.

GERMAN MARQUEZ,

 Defendant-Appellant.

_________________________________
Before Judges Carchman, R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5862.

Michael B. Blacker argued the cause for appellant.

Anne Marie Gibbons-Lejnieks, Union County Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Gibbons-Lejnieks, of counsel and on the brief.)

 The opinion of the court was delivered by

SABATINO, J.A.D.

 Defendant German Marquez, a licensed New Jersey driver, appeals his conviction of refusing to submit to a breath test, N.J.S.A. 39:4-50.2, after being arrested for drunk driving.  Defendant argues that because he is only fluent in Spanish and does not understand English, he cannot be guilty of refusing to comply with the standard breath test instruction (the “standard statement”), which the arresting police officer read to him in English.
 We affirm defendant’s conviction because the law does not require a translation of the standard statement under N.J.S.A. 39:4-50.2(e) and because defendant gave his implied consent to submit to a breath test when he obtained his New Jersey driver’s license.  However, we recommend that, as an administrative matter, the Motor Vehicle Commission prospectively consider having the standard statement translated into Spanish and perhaps other prevalent foreign languages.
 The facts relevant to our consideration of the issues on appeal are substantially undisputed.  On the evening of September 20, 2007, defendant’s Toyota struck the rear end of another vehicle at or near the intersection of Park Avenue and West Second Street in Plainfield.  A Plainfield patrolman, Officer Shane Lugo, arrived at the accident scene.  The officer observed both vehicles facing in a southbound direction.  Defendant was seated behind the wheel of the Toyota, with its engine still running.
 Speaking in English, Officer Lugo requested defendant’s driving credentials.  After it became apparent that defendant did not understand him, Officer Lugo repeated his request in Spanish.1  Defendant then produced a valid New Jersey driver’s license, a vehicle registration and an insurance card.  As this was occurring, Officer Lugo smelled alcohol and noticed that defendant was slurring his words.  The officer also noticed that defendant had to brace himself to get out of his car and then began leaning against a tree.  Consequently, Officer Lugo asked defendant, in English, to perform certain field sobriety tests.  Defendant did not comply, apparently not understanding the request.
 Based on his observations, Officer Lugo placed defendant under arrest and transported him to police headquarters.  He noticed that defendant’s eyes were bloodshot and droopy, and that his speech was “whiny.”  The officer believed defendant was intoxicated.
 Upon arriving at headquarters, Officer Lugo ushered defendant into a room where the Alcotest 71102 breath test is administered.  The officer activated a video camera that taped3 the events.  Officer Lugo then read to defendant, in English, all eleven paragraphs of the standard statement mandated by N.J.S.A. 39:4-50.2(e).  Among other things, the statement explains the mandatory nature of the breath test, the minimum penalties for refusing the test, and the test subject’s right to have a defense expert conduct independent chemical testing of the sample.
 After the standard statement was read to him in English, defendant responded in Spanish, “No entiendo,” meaning “I do not understand.”  Officer Lugo then visually demonstrated to defendant, an estimated “three or four times,” how to blow air into the test device.  Defendant did not perform the test.  Instead, he shook his head and pointed to one of his eyes.  Officer Lugo memorialized this reaction on a police form, noting that defendant “[s]hook head.”
 Another Plainfield police officer, Anthony Berlinski, was also in the room and was prepared to administer the Alcotest to defendant.  According to Officer Berlinski, he watched Officer Lugo read the statement to defendant.  He then saw defendant’s negative reaction, which he construed as a refusal.  Berlinski duly recorded the refusal.  On cross examination, Berlinski, a nineteen-year veteran police officer, acknowledged that he had been trained to read the standard statement aloud only in English.
 Defendant was issued summonses for driving while intoxicated (“DWI”), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and careless driving, N.J.S.A. 39:4-97.
 At his ensuing trial in municipal court, defendant testified through a Spanish interpreter.  The prosecution did not contest defendant’s need for an interpreter.  Nor did the State dispute defendant’s unwavering claim that he did not understand Officer Lugo when the officer read aloud the standard statement in English.
 In his translated testimony, defendant maintained that he had not consumed any alcohol before driving on the night of his arrest.  He claimed that he had not had a drink since sustaining an eye injury about five months earlier.  He stated that he had felt somewhat sleepy and dizzy as the result of taking Percocet about twenty minutes before driving.
 Defendant acknowledged that Officer Lugo had read aloud a statement to him at police headquarters.  He advised the court that he did not understand the statement because it was in English.  Defendant also noted that he had taken the written examination for the New Jersey driver’s license in Spanish.
 The State relied at trial upon the testimony of Officers Lugo and Berlinski, as well as the videotape and the official police records noting defendant’s refusal to perform the breath test.  In summation, the prosecutor argued that the rear-end accident caused by defendant amply established his culpability for careless driving.  Additionally, the accident, coupled with Officer Lugo’s perceptions of defendant’s bloodshot eyes, odor, slurred speech and swaying, proved his guilt of the DWI offense.  As to the refusal violation, the prosecutor argued that Officer Lugo discharged his responsibility by reading the standard statement in English.  The prosecutor maintained that the statement did not have to be translated for defendant into Spanish, relying upon State v. Nunez, 139 N.J. Super. 28, 32-33 (Law Div. 1976) (holding that no such translation is required as a predicate to a refusal violation).  The defense, meanwhile, contended that, given the undisputed language barrier here, a translation of the standard statement was necessary in order to convict defendant beyond a reasonable doubt of a refusal.
 The municipal judge found defendant guilty of all three cited violations.  The judge concluded that the DWI violation was sufficiently established by the “strong odor of alcohol” from defendant, his “stumbling out of the car,” and his “bracing himself against the car as he walked.”  The judge also was satisfied that the proofs sufficed to support a careless driving violation.
 With respect to the refusal charge, the municipal judge noted that he had observed the videotape twice, which clearly showed that Officer Lugo had read the prescribed standard statement to defendant in English.  The judge found defendant’s lack of understanding of English “immaterial,” given the requirements of the implied consent law as a condition of licensure.  In this regard, the judge relied upon Nunez, supra, a case that has been cited at least twice in published opinions and has “never been overturned by an appellate court.”  The judge also noted the practical difficulties implicated by defendant’s claim that the police have a legal duty to translate the standard statement, noting the “hundreds of languages” spoken in this country.  Because defendant indisputably failed to perform the breath test after being given the opportunity to do so, the court found him guilty of a refusal violation.
 In sentencing defendant, the municipal judge recognized that he has a “relatively clean driving record.”  Accordingly, the judge imposed the minimum seven-month license suspension for the refusal violation, as well as a concurrent three-month suspension for the first-time DWI infraction.  The careless driving violation was merged with those charges.  Appropriate fines and other monetary sanctions were also imposed.  The fines and suspensions were stayed, pending de novo review by the Law Division.
 On de novo review, the Law Division sustained defendant’s convictions.  The Law Division judge rejected defendant’s argument that the police were obligated to translate the standard statement into Spanish, either under the applicable statutes or under constitutional principles of due process.
 Defendant now appeals.  His appeal is confined to the refusal conviction, reiterating his argument that he cannot be guilty of that offense because he does not understand English.  We now examine that argument.
 Pursuant to N.J.S.A. 39:4-50.2(a), “[a]ny person who operates a motor vehicle on any public road . . . in this State shall be deemed to have given his consent to the taking  of samples of his breath for purposes of making chemical tests to determine the content of alcohol in his blood[.]“  However, a police officer seeking such a breath sample must have “reasonable grounds to believe” that the driver has been operating his motor vehicle while intoxicated.  Ibid.  Defendant does not contest that Officer Lugo, in requesting his breath sample, possessed such reasonable grounds to believe that he had committed a DWI offense.
 A motorist has no right to withhold cooperation when a police officer seeks a breath sample, because the motorist’s “very driving upon the highway” imputes consent to undergo the test.  State v. Kenderski, 99 N.J. Super. 224, 230 (App. Div. 1968).  A response that falls “substantially short of an unconditional, unequivocal assent to an officer’s request” to take a breath test “constitutes a refusal to do so.”  State v. Widmaier, 157 N.J. 475, 497 (1999) (internal citations omitted).   There are strong and long-established public policies that underlie this strict regulatory approach.  See State v. Tischio, 107 N.J. 504, 512 (1987) (noting the State’s policy to “curb the senseless havoc and destruction” caused by drunk driving).  As the Supreme Court recognized in Widmaier, supra, 157 N.J. at 497, any other approach “would undermine law enforcement’s ability to remove intoxicated drivers from the roadways.”  See also State v. Wright, 107 N.J. 488, 497-502 (1987) (broadly construing the refusal statute, in light of its legislative purposes “in facilitating drunk driving investigations”).  “The refusal statute was enacted by the Legislature to combat the ‘high rate of refusal[s] [which] made enforcement of the drunk driving laws difficult.’”  State v. Breslin, 392 N.J. Super. 584, 591 (App. Div. 2007) (quoting State v. Tekel, 281 N.J. Super. 502, 505 (App. Div. 1995)).
 Refusal to submit to a breath test triggers a mandatory suspension of the motorist’s driving privileges.  N.J.S.A. 39:4-50.4a(a).  For a first-time offender, the mandatory suspension is “not less than seven months or more than one year.”  Ibid.  The Legislature has specified that, in a case charging the motorist with refusal, the municipal judge is to determine whether: (1) “the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle . . . while . . . under the influence of intoxicating liquor” or a narcotic or other controlled dangerous substance; (2) “the person was placed under arrest, if appropriate”; and (3) the driver “refused to submit to the test upon request of the officer.”  Ibid.  As the result of the Supreme Court’s decision in State v. Cummings, 184 N.J. 84, 88 (2005), the State must prove these elements beyond a reasonable doubt, given the quasi-criminal nature of the refusal offense.
 The elements of a refusal offense do not include proof that the driver actually comprehended the police officer’s instruction.  To the contrary, the Supreme Court in Widmaier “emphasize[d] that a defendant’s subjective intent is irrelevant in determining whether the defendant’s responses to the officer constitute a refusal to take the test.”  157 N.J. at 498.  If the law were otherwise, some motorists might illicitly feign such lack of comprehension to evade liability for a refusal.
 We are mindful that the Legislature authorized the standard statement, N.J.S.A. 39:4-50.2(e), as a procedural device “to help ensure that defendants understand the mandatory nature of the [breath] test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent.”  Widmaier, supra, 157 N.J. at 489.  The statute states that the standard statement, in the form “prepared by the director [of the Division of Motor Vehicles4],” “shall be read by the police officer to the person under arrest.”  N.J.S.A. 39:4-50.2(e).  The statute does not specify the language of the statement to be read to the arrestee. 
 Where a breath test has been administered, the arresting police officer “shall inform the person tested of his rights under subsections (b) and (c) of [the refusal statute].”  N.J.S.A. 39:4-50.2(d) (emphasis added).  Subsection (b) refers to the defendant’s right to a copy of the test results, N.J.S.A. 39:4-50.2(b), and subsection (c) refers to the defendant’s right to have an independent test performed, N.J.S.A. 39:4-50.2(c).  Apart from these two discrete items, “the [refusal] statute sets forth no other affirmative duties on the part of the police.”  State v. Greeley, 178 N.J. 38, 43 (2003).  However, law enforcement may not “thwart the right to an independent test through arbitrary actions or policies that would render the statutory right meaningless.”  Ibid.; see also State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div. 1997); State v. Ettore, 228 N.J. Super. 25, 30 (App. Div. 1988).  Applying this standard, the Court held in Greeley that a police department’s policy to not release a DWI detainee until he can arrange a sober escort from the stationhouse did not interfere with the defendant’s “statutory right” to pursue independent testing.  178 N.J. at 49.
 Following Greeley, in State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006), we held that the prosecution in a refusal case is not required to “present affirmative proof” that a defendant has been advised of his rights under N.J.S.A. 39:4-50.2(c) and (d) “in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a).”  Rather, a defendant must move to suppress the test results in order to preserve his ability to complain about the police’s failure to advise him of his rights.  Ibid.
 Because defendant in the present case did not allow the police to administer the Alcotest to him, the police’s obligation under subsection (d) of the refusal statute to inform “the person tested” of his rights is not on point.  See N.J.S.A. 39:4-50.2(d).  The question then becomes whether the police fell short of their obligations under subsection (e) of the statute in the manner in which they read the standard statement to defendant.
 We have held in at least one case that a trooper’s failure, in dealing with an arrestee who gave an ambiguous response to the testing request, to read aloud the supplemental portion of the standard statement explaining that such an ambiguous response would be deemed a refusal, required reversal of the refusal conviction.  See State v. Duffy, 348 N.J. Super. 612 (App. Div. 2002).  Duffy, which involved an incomplete reading of the standard statement, is distinguishable from the present case, in which it is undisputed that Officer Lugo read aloud the entire standard statement.  Moreover, defendant’s gestures and words refraining from taking the test were unambiguous.  The issue here is purely one of translation.
 The question of whether the standard statement must be translated into a foreign language for non-English-speaking drivers has been previously the subject of published judicial and administrative decisions.  As the municipal judge here noted, the court rejected a defendant’s argument to require such a translation in Nunez, supra, 139 N.J. Super. at 28.  In that case, the defendant was charged with driving under the influence based upon the results of a breathalyzer test administered by a State Police officer.  Id. at 29.  Although the officer advised the defendant of his right to have an independent test performed in accordance with N.J.S.A. 39:4-50.2, the defendant, who did not speak English, did not understand what the officer said to him.  Id. at 29-30. 
 Observing that “driving a motor vehicle on the highways of the State is a privilege, not a right” and that a driver, by virtue of the statutory licensure scheme, gives his “implied consent to submit to a breathalyzer test[,]” the Law Division judge in Nunez determined that defendant’s argument——that he was unaware that he could obtain an independent test——lacked merit because  the “right to have an independent test performed is a statutory right, not a constitutional one.”  Id. at 30-33.  Nunez has been cited with approval in two opinions by our court, albeit not for the specific translation issue that is presented on this appeal.  See State v. Mercer, 211 N.J. Super. 388, 392 (App. Div. 1986); State v. Casele, 198 N.J. Super. 462, 470 (App. Div. 1985). 
 Likewise, in a reported administrative decision, DMV v. Iuliano, 4 N.J.A.R. 439 (1980), an administrative law judge (“ALJ”) rejected a contention by a motorist who had difficulty understanding the English language that he was entitled to have the then-existing version of the standard statement translated into his native language.  Citing Nunez, supra, the ALJ concluded that the public policy behind the informed consent law signified that “there can be no requirement that a licensee be read the [standard statement] in any other language except English.”  Id. at 444.  The ALJ observed that the lack of a translation requirement should remain until such time as “the Division of Motor Vehicles promulgates a bi-lingual policy, or there is a re-examination of State v. Nunez by a [c]ourt of higher jurisdiction.”  Ibid.
 In the present case, defendant attempts to invalidate Nunez by arguing that he is entitled to a translation of the standard statement under constitutional principles of due process of law.  We are not so persuaded.
 As illustrative support for his constitutional argument, defendant largely relies upon Rivera v. Board of Review, 127 N.J. 578 (1992).  In that case, the appellant, a migrant farm worker, was awarded unemployment benefits for the fall and winter of 1988, periods of time when he was not working in New Jersey.  Id. at 580.  Subsequently, the Department of Labor ruled that he was ineligible for benefits, and it demanded repayment by sending the appellant a “Demand for Repayment,” a “Schedule of Overpayments,” and an “Important Information [N]otice” at his address in Puerto Rico.  Ibid.   As the Court noted, “[t]he import of the notices was that absent a timely appeal, [appellant] would be obligated to return all funds he had received since November 1988.”  Id. at 581.  Notably, all three notices were written in English.  Ibid.  
When the notice arrived in Puerto Rico, Rivera’s daughter telephoned him in Pennsylvania, where he was looking for work, and at his request immediately forwarded the papers to him.  Ibid.  He received the forwarded notice on June 12, 1989, and two days later, on June 14, 1989, after having the notice translated into Spanish, he filed an appeal.  Ibid. 
An administrative hearing on the appeal was held before the Department’s appeal tribunal on January 30, 1990.  The appeal tribunal declined to hear the appeal on the merits because it had not been filed in a timely manner as required by N.J.S.A. 43:21-16(d).  Ibid.  Thereafter, the Board of Review affirmed the decision and that decision was subsequently upheld by this court.  Id. at 582.
Our Supreme Court recognized in Rivera that “[t]he Constitution demands that a person not be deprived of property or liberty absent due process of law.”  Id. at 583 (citing Cunningham v. Dep’t of Civil Serv., 69 N.J. 13, 19 (1975)).  It also acknowledged that due process becomes adequate where the State provides “notice and an opportunity for hearing appropriate to the nature of the case.”  Ibid. (quoting Mullane, supra, 339 U.S. at 313, 70 S. Ct. at 656, 94 L. Ed. at 873).  The Court cautioned that “[t]he touchstone of adequate process is not [an] abstract principle but the needs of the particular situation.”  Ibid. (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972) (holding that “due process . . . calls for such procedural protection as the particular situation demands”)).
Treating our state statutes providing for the payment of unemployment compensation benefits akin to a form of common-law property protected by the Fifth Amendment, the Court remanded the matter, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976) (setting forth a three-part balancing test weighing individual and governmental interests and the costs of different types of procedure).  The Court held that the Department should have addressed the merits of appellant’s claim, and, moreover, urged the Department to promulgate regulations that guaranteed adequate notice for migrant workers.  Rivera, supra, 127 N.J. at 89.
 However, the right to due process does not automatically carry with it a right to have government documents translated into one’s native language.  For example, in Alfonso v. Board of Review, 89 N.J. 41 (1981), a case that preceded but was not overruled by Rivera, our Supreme Court rejected the argument of a Spanish-speaking woman that the Department of Labor was obligated to translate the notices rejecting her claim for unemployment benefits into Spanish.  According to the Court majority, “[t]he paramount question” under the constitution was “whether the notice given to the claimant here was calculated ‘under all the circumstances’ to convey the required information.”  Id. at 44.  Answering this question in the affirmative in favor of the Division, the Court held that “in an English-speaking country, requirements of ‘reasonable notice’ are satisfied when the notice is given in English.”  Id. at 45.
 In the present context of this case involving the refusal statute, we are persuaded that due process was satisfied, and that Officer Lugo was not constitutionally obligated to read the standard statement to defendant in Spanish.  We are mindful that it is undisputed that defendant is not fluent in English.  However, we are also mindful of the clear implications of the implied consent law, a statute that our courts have consistently upheld as constitutional.  Cummings, supra, 184 N.J. at 89; Breslin, supra, 392 N.J. Super. at 584.  In procuring his New Jersey driver’s license and in operating his automobile on our public roadways, defendant provided his advance consent to submit to a breath sample.  That consent, as a constitutional matter, sufficiently reflects that defendant knew, or should have known, that he could not decline to blow air into the breath testing device without exposing himself to licensure sanctions.
 The sufficiency of notice is buttressed by the fact that the New Jersey motor vehicle license testing process includes specific coverage of our drunk driving laws, including the refusal statute.  Defendant was permitted to take the written portion of the examination in Spanish.  It is noteworthy that the MVC’s driver’s manual, which is made available to persons such as defendant before they sit for the examination, is translated into Spanish.5  The manual contains a specific section that describes the refusal statute and the informed consent law, as follows:
New Jersey has an implied consent law.  This means that motorists on New Jersey roadways have agreed, simply by using New Jersey roadways, to submit to a breath test given by law enforcement or hospital staff following an arrest for a drinking and driving offense.  Motorists who refuse to take a breath test will be detained and brought to a hospital, where hospital staff may draw blood.

Motorists who refuse to take a breath test in New Jersey are subject to an MVC insurance surcharge of $1,000 per year for three years.  Failure to pay this surcharge will result in an indefinite suspension of driving privileges until the fee is paid.  Motorists who refuse to take a breath test will be detained and brought to a hospital, where hospital staff may draw blood.

Under state law, refusal to take a breath test is equal to driving with a BAC of .10 percent for a first offense.  The current penalty for refusal is the loss of driving privileges for between seven months and one year, to run concurrently or consecutively, based upon a judge’s order.

Notably, all three of these informational paragraphs are translated into Spanish on the version appearing on the MVC’s website.7  Although the informational paragraphs do not detail all of the features of the refusal law, they mitigate the contention that defendant was not alerted to the refusal law because of his asserted language barrier.
 We are also mindful, as was the court in Nunez, of the considerable administrative burdens that would be placed on the MVC and police departments if they were obligated in every case to translate the standard statement into a multiplicity of languages and dialects.  The judiciary undertakes major endeavors to accommodate such translation requests in court proceedings.8  Likewise, we are mindful that Miranda9 warnings are commonly translated into Spanish.  See, e.g., State v. Mejia, 141 N.J. 475, 502-03 (1995); State v. Cabrera, 387 N.J. Super. 81 (App. Div. 2006); State v. Soto, 340 N.J. Super. 47, 57 (App. Div. 2001); State in Interest of J.F., 286 N.J. Super. 89, 100 (App. Div. 1995).  But the scientifically time-sensitive nature of blood and breath evidence may not make rapid translation administratively feasible, as the evidence may dissipate or change while awaiting such a translation.  See Widmaier, supra, 157 N.J. at 498 (observing that delaying the administration of a breath test may adversely affect the results). 
 To be sure, there may be good policy reasons for the MVC to now consider, as an administrative matter, having the standard statement translated into Spanish10 and perhaps into other foreign languages prevalent in our State.  The MVC might also consider creating standardized audio readings of the translated versions to be played or replayed for, DWI arrestees needing such translation.  However, that policy decision, as with other prospective modifications of the standard statement, remains the prerogative of the MVC.  See Spell, supra, 196 N.J. at 537; see also Mejia, supra, 141 N.J. at 503 (sustaining defendant’s conviction but recommending that the Attorney General administratively develop “appropriate bilingual Miranda warnings” for “the larger segments of the non-English speaking population”).  We therefore refer this opinion to the MVC for such future regulatory consideration.
 Affirmed.

       SUPERIOR COURT OF NEW JERSEY
       APPELLATE DIVISION
       DOCKET NO.  A-2378-07T4
STATE OF NEW JERSEY,

  Plaintiff-Respondent/
  Cross-Appellant,

v.

PHILIP BERTRAND,

  Defendant-Appellant/
  Cross-Respondent.
_________________________________
  Before Judges Wefing, Yannotti and LeWinn.

  On appeal from Superior Court of New Jersey,
  Law Division, Hudson County, Municipal Appeal
  No. 58-07.

  Stabile Law Firm, attorneys for appellant/
  cross-respondent (Steve Stabile, on the brief).

  Edward J. De Fazio, Hudson County Prosecutor,
  attorney for respondent/cross-appellant (Gina Giordano, Assistant Prosecutor, on the briefs).

  The opinion of the court was delivered by

WEFING, P.J.A.D.

 Following a trial de novo in the Law Division, defendant was found guilty of refusal to provide breath samples, N.J.S.A. 39:4-50.2.  He has appealed from that conviction.  The State has cross-appealed from the sentence imposed by the Law Division, contending it was an illegal sentence.  After reviewing the record in light of the contentions advanced on appeal, we affirm defendant’s conviction but remand for resentencing.
 Shortly after one o’clock on the morning of April 24, 2007, several members of the Union City Police Department responded to the apartment complex known as Troy Towers, located at 380 Mountain Road in Union City, to a report of a motor vehicle accident involving a possibly intoxicated driver.  Four members, Officers Gonzalez, DePinto, D’Andrea, and Sergeant Botti, testified at the subsequent proceedings in Union City municipal court.  Officer Gonzalez was the first on the scene.  She said that she came upon defendant sound asleep on a bench near the security guard’s booth.  Witnesses estimated the distance between the bench and the spot where defendant’s car had been left at between twenty and forty feet.  Defendant’s car was not in its assigned spot in the garage and had been left facing the wrong way.  The keys were in the ignition but there was no testimony from anyone who saw defendant operating the car.
 Officer Gonzalez had difficulty awakening defendant.  Once she roused defendant, she and the other officers came to the conclusion that he was intoxicated.  His face was flushed, he smelled of alcohol, and he was belligerent.  He refused to perform any of the field sobriety tests without first consulting an attorney.  Sergeant Botti directed that defendant be placed under arrest and taken to police headquarters.  At police headquarters, the police read to defendant the standard statement seeking his consent to provide breath samples.  Defendant, however, refused to do anything without first consulting with an attorney.  He was then charged with violating both N.J.S.A. 39:4-50, driving while intoxicated, and N.J.S.A. 39:4-50.2, refusing to provide breath samples.
 At the conclusion of the State’s case in municipal court, defendant moved for a directed verdict on both charges.  The trial court granted defendant’s motion to dismiss the charge of driving while intoxicated, there being no proof that defendant had operated the vehicle.  It denied, however, the motion to dismiss the charge of refusing to provide a breath sample and found defendant guilty of that offense.  State v. Wright, 107 N.J. 488, 490 (1987) (holding that actual operation of a vehicle is not an element of N.J.S.A. 39:4-50.2; it is sufficient if the police had probable cause to believe the defendant had been driving while intoxicated).
 Defendant appealed to the Law Division and, in addition to the record of the municipal court trial, the parties submitted the following stipulated facts:  the parking garage for Troy Towers included 345 parking spaces; the garage was constructed on four levels; residents of Troy Towers enter the parking garage through use of an access card with a photo identification; and visitors and tradesmen were not generally permitted to park in the garage.  The parties also stipulated that parking in the garage was controlled by the following regulations:
 Exterior Parking
 23.  The upper south parking lot is for guest parking.  In order to park in this lot, the guest must register his or her vehicle with the Concierge (name of resident & apartment number, make of car, color, and license number).  The Concierge will allocate a space and provide the Guest with a Parking Permit, which must be visible from the outside of the vehicle at all times.
  23.3  Guest parking is not for use by residents.

 Garage
 24.  Parking spaces in the garage are for Troy Towers’ residents only.  The parking spaces are rented to residents on a separate contract at a monthly rate approved by the Board of Directors.
  24.3  If a resident wishes to have a vehicle, other than the registered vehicle, park in the garage, permission must be obtained in advance from the Management Office (not the Concierge).  Failure to do so can result in the vehicle’s being towed).

 Defendant was again found guilty, and he has appealed to this court, raising the following arguments for our consideration:
POINT I DEFENDANT’S CONVICTION FOR REFUSAL TO PROVIDE BREATH SAMPLES MUST BE REVERSED BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE TROY TOWERS ARE QUASI-PUBLIC PROPERTY.

POINT II DEFENDANT’S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN DETERMINING THAT THE LEGISLATURE INTENDED THE REFUSAL STATUTE TO COVER THE WHOLLY PRIVATE PARKING GARAGE AT THE TROY TOWERS, WHICH SPECIFICALLY EXCLUDES VISITORS AND TRADESMEN.

 There is a significant difference in the language of the statute dealing with driving while intoxicated, N.J.S.A. 39:4-50, and the refusal statute, N.J.S.A. 39:4-50.2.  The former speaks simply of operating a motor vehicle while under the influence of certain substances.  The latter, however, provides in pertinent part that any individual “who operates a motor vehicle on any public road, street or highway or quasi-public area in this State” is deemed to have consented to give breath samples to an officer “who has reasonable grounds to believe” that the individual has been driving while intoxicated.  N.J.S.A. 39:4-50.2(a).  Under N.J.S.A. 39:4-50, it is immaterial where an individual operates a motor vehicle if intoxicated; the fact of operation constitutes the offense.  Under N.J.S.A. 39:4-50.2, however, the offending conduct must have occurred on a “public road, street or highway or quasi-public area.” 
 Defendant argues that his conviction cannot stand because there was no proof he operated his car on a public road, street or highway, and the parking garage, restricted to use by the building’s residents and their guests, is not a quasi-public area.  The State argues that the determination by the municipal court judge and the Law Division judge that the garage was a quasi-public area is a factual finding to which we must defer under State v. Locurto, 157 N.J. 463, 470-71 (1999).  We cannot agree with this argument; in our view, the decision whether the area is quasi-public is a conclusion of law, made on the basis of the stipulated facts.  Our review of legal conclusions is plenary, with no presumption of correctness.  Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).  We agree, nonetheless, that defendant’s conviction should be affirmed because we are satisfied that this parking garage can fairly be termed a “quasi-public area” for purposes of the refusal statute.
 The trial court approached the question by analyzing the underlying purposes of N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.2 and concluding that both were directed at protecting the safety of others.  In its view, the three hundred plus residents of Troy Towers were as entitled to protection against an intoxicated driver as any driver proceeding down a public street.  We do not entirely subscribe to this analysis, for it has the potential to eliminate entirely the distinction in language selected by the Legislature when it enacted these two separate statutes.
 We focus, rather, on the nature of the structure itself and its uses and defendant’s relationship to it.  There is some indication that N.J.S.A. 39:4-50.2 was drafted to include the concept of a “quasi-public area” because of concerns expressed at the time of its enactment that it might run afoul of constitutional principles if the operator of a vehicle on wholly private property were deemed to have consented to provide breath samples.  State v. Garbin, 325 N.J. Super. 521, 530-31 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000).  This reflects the principle that one of the hallmarks of wholly private property is the ability of the owner to control who may have access to it and use of it.  Bubis v. Kassin, 404 N.J. Super. 105 (App. Div. 2008) (holding that owner of upland sand area not required to permit plaintiff to have use of that area).   
 Here, defendant did not own the garage and had no power to control who had access to it.  The most that defendant had was the right to park his car in a designated slot.  He had no ability to determine the terms under which other residents of this complex used the garage or where they parked their vehicles.  He had no ability to reserve any portion of the structure for his own use or that of his guests; nor could he bar the guests of other residents from parking in accordance with the governing regulations.  Although the parking garage was not available to the general public, it was available for all of the residents of Troy Towers to use on an equal basis in accordance with the governing regulations.  This garage may have been private vis-à-vis the public at large; it was not private, however, vis-à-vis defendant and the other tenants of Troy Towers, all of whom had the right to share in its use.  In light of this shared use, we conclude it is appropriately characterized as quasi-public for purposes of the refusal statute.  We thus affirm defendant’s conviction under N.J.S.A. 39:4-50.2.
 We turn now to the State’s cross-appeal.  At the conclusion of the proceedings in municipal court in July 2007, after the municipal court judge concluded that defendant was guilty under N.J.S.A. 39:4-50.2, he turned to the question of sentencing and said to defendant’s counsel, “This is his first offense, correct?” to which the attorney responded, “I believe so.  Yes, Your Honor.  Yes.”  The municipal court judge then sentenced defendant accordingly.  The Law Division judge imposed the same sentence following the trial de novo.
 The State has submitted to us the transcript of an earlier proceeding, in November 2006, in Weehawken municipal court, at which defendant pled guilty to driving while intoxicated.  It has also submitted a copy of a summons issued in March 2007, one month prior to the subject incident, for refusal to submit to breath testing, and a copy of the judgment of conviction for this offense following a trial de novo in the Law Division.  It is patent that defendant was not entitled to be sentenced as a first offender and that his sentence is illegal.  We, therefore, remand this matter to the municipal court for purposes of re-sentencing. 
 In the course of reviewing this cross-appeal, we have noted that when defendant pled guilty in Weehawken municipal court to driving while intoxicated in November 2006, he was represented by the same attorney who assured the Union City municipal court judge in August 2007 that the conviction for refusal represented defendant’s first offense.  We are compelled to refer this matter for further proceedings to determine whether the attorney’s statement was a result of ignorance or was a violation of his duty of candor to the court.
 Defendant’s conviction is affirmed.  As to the cross-appeal, defendant’s sentence is reversed, and the matter is remanded to the municipal court for re-sentencing.

       SUPERIOR COURT OF NEW JERSEY
       APPELLATE DIVISION
       DOCKET NO.  A-4906-08T4

STATE OF NEW JERSEY,

 Plaintiff-Respondent,

v.

JOEL M. UGROVICS,

 Defendant-Appellant.

________________________________

  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

FUENTES, J.A.D.

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 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 (2008).
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.
I
 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 PROSECUTOR]: Yes, Your Honor.

[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 PROSECUTOR]:  Correct.

[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?

[MUNICIPAL PROSECUTOR]:  Yes, Your Honor.

[DEFENSE COUNSEL]:  Yes.

 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 Alcotest.
 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.

II

 Against this backdrop, we will now address the central issue in the case.  We start by reaffirming our standard of review.
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 deference.
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 anew.

[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.

[Ibid.]

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 n.44.
 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 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.
III
 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.

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.

  SUPERIOR COURT OF NEW JERSEY

 APPELLATE DIVISION

 DOCKET NO. A-1832-08T4

 STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOS E. TSETSEKAS,

Defendant-Appellant.

_________________________________

December 14, 2009

 Before Judges Carchman, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. BMA-009-08-08.

Berman, Sauter, Record & Jardim, P.C., attorneys for appellant (Thomas S. Doerr, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

LIHOTZ, J.A.D.

Defendant Christos E. Tsetsekas appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after trial de novo in the Law Division. As a consequence of his conviction, defendant’s driving privileges were suspended for three months, he was assessed applicable fines and costs and ordered to attend twelve hours of education at the Intoxicated Driver Resource Center. On appeal, defendant raises these issues:

POINT ONE

THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT’S RIGHT TO A SPEEDY TRIAL WAS NO[T] VIOLATED.

POINT TWO

THE LOWER COURT ERRED IN FINDING THAT THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH PROBABLE CAUSE.

POINT THREE

THE LOWER COURT ERRED IN FINDING THAT THE BREATHALYZER RESULTS WERE PROPERLY ADMITTED INTO EVIDENCE.

We have considered these arguments in light of the record and applicable legal standards. Under the facts of this case, we conclude the extensive delay in adjudicating this matter, caused by the State’s repeated lapses in preparation, infringed upon defendant’s due process rights such that his conviction must be reversed and the charge dismissed. Consequently, we need not address the remaining points raised on appeal.

We summarize the facts relevant to our review. On May 8, 2007, defendant was involved in a single-car accident while traveling on Route 80 in Elmwood Park, when his wheel became dislodged. Trooper Nicholas Rubino arrived at the scene. Based upon Trooper Rubino’s observations of the condition of defendant’s vehicle, his physical appearance and unsatisfactory performance on field sobriety tests, Rubino arrested defendant. Rubino read defendant his Miranda¹ rights and transported him to the Totowa police station where Sergeant Michael Watson, a certified breathalyzer operator, administered two breathalyzer tests. Defendant registered a .09 blood alcohol level on each test. Accordingly, Trooper Rubino issued a summons charging defendant with DWI.

Defendant first appeared in the Elmwood Park Municipal Court on May 15, 2007. He entered a plea of not guilty and trial was scheduled for July 17, 2007. On that date, defendant appeared with his attorney. However, the State requested an adjournment as the prosecutor had just responded to defendant’s discovery requests that evening. In relisting the matter for trial on August 14, 2007, the municipal court judge stated: “That’s going to be a relatively firm date since this now is beyond our 60-day guideline. So the next date you get will be for trial. So make sure you’re ready.”²

On the relisted trial date, the State revealed it had yet to provide defendant with a copy of the patrol car videotape of his stop and arrest. The videotape was not included in the initial discovery and, although requested, had not been sent by the State Police. The prosecutor advised he needed “[t]hirty [] — maybe 60 days” to obtain the videotape. The court suggested the request be expedited because “it’s beyond [] our 60-day guidelines.”

Subsequent trial dates on September 14 and October 9 were adjourned because the videotape had not been received. Defendant and counsel next appeared on November 13, 2007. The prosecutor again sought a continuance. He explained the in-car videotape had arrived the prior week, but “the State ha[d] not even had an opportunity to view it[.]” Also, because the parties had been discussing a possible plea agreement, the prosecutor had not subpoenaed Trooper Rubino, who he learned was not available that evening. Finally, the State acknowledged the test certificate for the breathalyzer had not been produced. In making his continuance request, the prosecutor sought a special trial listing.

Defense counsel objected, stating,

the fact of the matter is this is the fourth time that we’ve been here. We also have an expert who’s coming up from South Jersey. I want to make certain that when we come the next time, that we are scheduled. That we do, in fact, try the case. I . . . request that the [c]ourt list [th]is as a try or dismiss matter.

The court rejected defendant’s request even though the matter was the oldest case on its docket. The judge advised the prosecutor, “we are going to start it next time.” The case was then scheduled for 8 p.m. on December 4, 2007.

Unfortunately, Trooper Rubino suffered a death in his family and the matter was relisted for December 18, 2007. On that date, defendant and counsel appeared at 7:30 p.m. The court concluded all other cases on its calendar and called this matter at 9:20 p.m. The State responded that its witnesses had not arrived. This colloquy followed:

THE COURT: [H]ere’s the concern. . . . Normally, we have to give a fair degree of leeway on — in DWI cases, but this case goes back to May of 2007. It’s probably the second oldest — . . . case on my calendar . . . . We’re supposed to dispose of them in 60 days.

[THE PROSECUTOR]: I recognize that, Your Honor . . . . I don’t believe it was listed for try or dismiss tonight, Your Honor, so all I ask is that –

THE COURT: No. We don’t normally list them try or dismiss, but that doesn’t prevent a dismissal.

. . . .

[PROSECUTOR]: [Trooper Rubino] said as soon as he finishes processing the DWI defendant [he was working on] he could head down here. And he . . . estimated it would be maybe a half hour or so from what I, you know, from five minutes ago, so –

THE COURT: And then you’ve still got the problem of Trooper Watson.

[PROSECUTOR]: That’s correct, Judge.

. . . .

[DEFENSE COUNSEL]: We were here on a trial date approximately a month and a half, two months ago, or so, and the . . . trooper again didn’t show up because he . . . was not of the understanding that there actually was a trial on that day. So we came prepared, and we were [adjourned].

. . . .

It was then, in fact, we asked at that point because we had had a number of occasions in the past where we had been here. I think I’ve been here maybe seven times or so. And we had asked . . . the last time that this matter be put on as a try or dismiss, and the [c]ourt expressed as it did here, that it typically does not put matters down on as [sic] a try or dismiss.

It was rescheduled for approximately two or three weeks ago or so . . . . And now we’re here, we’re ready to go as well. I’d renew my application for dismissal of the case, Your Honor. I understand that it’s unusual certainly for that to happen in the case of a DWI claim, but I think we have done everything that we’re supposed to do. We — we’ve made multiple, multiple appearances before this [c]ourt. We’ve always been prepared to proceed.

Notwithstanding defendant’s arguments, the court denied his motion and recessed. Trooper Rubino arrived sometime after 11 p.m., and trial commenced. Trooper Watson did not appear that evening. At the close of Trooper Rubino’s testimony, the court continued the matter. Computer-generated notices were sent to Troopers Watson, Rubino and Luigi D’Corona, and trial was scheduled to resume on March 5, 2008. On that date, when the case was called, the State again sought a continuance because none of the State Troopers appeared. Defendant renewed his motion to dismiss. The court again denied the motion, suggesting the prosecutor was not at fault, and granted another adjournment.

On April 16, 2008, nearly one year from the date of arrest, the State concluded presentation of its evidence. The defense then presented its expert witness and defendant testified in his own behalf. Defendant was found guilty of DWI. After the court imposed sentence, defendant’s request for a stay pending appeal was granted.

The appeal before the Law Division was heard on October 22, 2008. Defendant argued, as he does before this court, that: (1) he was denied a speedy trial; (2) the State lacked probable cause to arrest; and (3) the breathalyzer results were improperly admitted at trial. In denying defendant’s argument that the delay denied him a speedy trial, the Law Division considered the fact that the matter was adjourned “at least seven times” and required “more than ten appearances[,] [a]ll because the State was not prepared.” However, the court concluded the defendant’s right to a speedy trial was not denied, determining the delay was not “purposeful” and the prejudice suffered by defendant was not extensive. Following de novo review of the municipal court record, defendant was convicted of DWI and sentenced just as he was in municipal court. This appeal ensued.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1, 7-8 (1967). “The constitutional right . . . attaches upon defendant’s arrest.” State v. Fulford, 349 N.J. Super. 183, 190 (App. Div. 2002) (citing State v. Szima, 70 N.J. 196, 199-200, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976)). As a matter of fundamental fairness, excessive delay in completing a prosecution may qualify as a violation of a defendant’s constitutional right to a speedy trial. State v. Farrell, 320 N.J. Super. 425, 445-46 (App. Div. 1999) (citing State v. Gallegan, 117 N.J. 345, 354-55 (1989)). After all, “‘[a] defendant has no duty to bring himself to trial; the State has that duty[.]‘” State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977) (quoting Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 2190, 33 L. Ed. 2d 101, 115 (1972)).

In Barker, supra, the United States Supreme Court announced a four-part test to determine when a delay infringes upon a defendant’s due process rights. 407 U.S. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Courts must consider and balance the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid.

In Szima, supra, New Jersey’s Supreme Court adopted the Barker test. 70 N.J. at 200-01. These same standards also have been applied to municipal prosecutions. State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007), appeal dismissed, 196 N.J. 82 (2008); Farrell, supra, 320 N.J. Super. at 446. Guided by Barker, the courts have examined speedy trial challenges in the prosecution of DWI matters.

In Farrell, we dismissed defendant’s DWI conviction after the matter was adjourned twelve times and took 663 days before its eventual adjudication. 320 N.J. Super. at 451. We concluded the delay was “so egregious” that the defendant’s burden with regard to the three other Barker factors was “correspondingly diminished.” Id. at 453.

On the other hand, we affirmed the denial of a claim of excessive delay in a DWI trial held approximately six months following arrest. State v. Prickett, 240 N.J. Super. 139, 148 (App. Div. 1990). Similarly, in Berezansky, supra, we rejected “defendant’s contention that he was deprived of his constitutional right to a speedy trial based on the nearly five months that elapsed between his arrest and the beginning of his trial[,]” concluding defendant’s proofs were insufficient. 386 N.J. Super. at 99.

In Fulford, supra, we upheld the Law Division’s denial of the defendant’s motion to dismiss despite a thirty-two month delay, which was attributed to the State’s decision to hold prosecution of the DWI charge until the defendant’s completion of pre-trial intervention on a separate indictable offense. 349 N.J. Super. at 194-96. After balancing all four Barker factors, we concluded the purpose of the delay, which was lengthy, significantly benefited the defendant, who had only recently filed a speedy trial motion.

Finally, in State v. Perkins, the Law Division’s de novo review resulted in dismissal of a DWI charge although only three months had elapsed from the date of arrest. 219 N.J. Super. at 121, 125-26 (Law Div. 1987). The court’s conclusion was based on the fact that the municipal court had ordered the matter scheduled for a “date certain” due to prior adjournments occasioned by the State’s inability to proceed, and the State had again appeared unprepared on the final trial date. Ibid. The municipal court’s failure to enforce its order prompted the Law Division to reverse the conviction and dismiss the charge. Ibid.

No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. Rather, the factors are interrelated, and each must be considered in light of the relevant circumstances of each particular case. Ibid. In an analysis of a speedy trial challenge, a trial court must weigh the “’societal right to have the accused tried and punished’” and a defendant’s right to be prosecuted “‘fairly and not oppressively.’” State v. Dunns, 266 N.J. Super. 349, 380 (App. Div.) (quoting State v. Farmer, 48 N.J. 145, 175, cert. denied, 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967)), certif. denied, 134 N.J. 567 (1993).

We now consider the trial court’s application of these principles. “We have always recognized that ordinarily adjournments are within the discretion of the trial court.” State v. Gallegan, 117 N.J. 345, 354 (1989). In reviewing the Law Division’s findings, we reverse only if the court’s determination is clearly erroneous. Merlino, supra, 153 N.J. Super. at 17.

In concluding defendant was not denied a speedy trial, the Law Division judge made these findings:

In this case, the — the delay, . . . was 327 days. And time is relative, I’m sure, when someone has something like a drunk driving charge hanging over their head every day is anxiety provoking, but we can’t, you know, focus on normal anxiety, in terms of a prejudice caused by the delay.

. . . .

We have . . . extraordinary situations with the Municipal Courts. Practically speaking, they’re part-time courts. They don’t all meet even every week. The people working there are part-time prosecutors.

So, even though the ideal goal is 60 days, I don’t know that, in and of itself, the — the length of the delay is something that weighs very heavily in this balancing test. And, you know, we — the — the guidelines we have from the cases, 663 days in the Farrell case, this is not [an] inordinately long time for a matter to come to trial.

The reasons for the delays. Every delay was caused by the State’s failure to be ready to proceed. And, as [c]ounsel points it out, it wasn’t necessarily the prosecutor. It was no particular person, but it was the State. And the State, in general, has an obligation. Here, some of it was really regrettable, and I — I think, very frustrating to the defense, because they were there. They didn’t ask for delay. They were very professional about the thing. And it got to the point where it was bordering on unreasonable.

If it had been any longer, I think the reason, combined with the length of time, may have pushed the balance of the scale, but, again, the — there was no purposeful delay. And so I think the — the reasons and the length certainly would not weigh that heavily.

With regard to whether there was prejudice, again, the normal anxiety and certainly the cost of an attorney appearing again and again and again, it was a cost that should not have been incurred. But our case law tells us that expense alone is not a reason to find prejudice. It has to be something more than that.

And fourthly, the — whether or not the defendant asserted the right to speedy trial. I think the right — the assertions were here . . . . But certainly [c]ounsel made apparent, and, as [c]ounsel points it out, the [c]ourt didn’t need anybody to make it apparent. The [c]ourt made it apparent [] that this should not have been happening.

In balancing, it — it’s close, but I really believe, under the case law, because of the length of time that it was — let’s say short of a year, and the best guidance we have with the case is approximately two years, so I am making a finding that the right to speedy trial, under the law, was not denied.

In deciding the delay was not excessive, the trial court measured the almost one-year delay experienced in this matter against the delay discussed in Farrell, which was twice as long. We reject such an approach.

There is no set length of time that fixes the point at which delay is excessive. The first step in analyzing the facts requires a court to remember that

[t]he New Jersey judiciary is, as a matter of policy, committed to the quick and thorough resolution of DWI cases. In 1984, Chief Justice Wilentz issued a directive, later echoed in Municipal Court Bulletin letters from the Administrative Office of the Courts, that municipal courts should attempt to dispose of DWI cases within sixty days.

[Farrell, supra, 320 N.J. Super. at 446-47.]

We do not suggest that any delay beyond the sixty-day goal is excessive. However, for the standard to have any meaning, municipal courts must continuously strive to assure prompt prosecution of DWI matters. Here, the 344 day dispositional period is more than five times the stated objective, and, as discussed below, the delays were numerous, mostly avoidable and largely unexplained.

Barker’s second prong examines the length of a delay in light of the culpability of the parties. See Barker, supra, 407 U.S. at 529, 92 S. Ct. at 2192, 33 L. Ed. 2d at 116. We concur with the trial court’s finding that the delays were not deliberate attempts to hamper the defense. See id. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117 (stating that purposeful delays are weighted “heavily” against the government). However, the State’s inability to proceed required each adjournment. This was not a situation where the delay was occasioned by a “part-time” municipal court unable to accommodate trial time demands, as the Law Division suggested. The municipal court listed the matter every month from July to December 2007 and provided two trial dates in December. The limited testimony taken on December 18, 2007 was a consequence of a late-appearing State witness. Further, a continuance from this date was necessitated by the failure of another State witness to appear. Plainly, the State failed to properly appreciate the need to promptly provide discovery and coordinate the scheduling of its witnesses.

Here, as noted by the Law Division, “every delay was caused by the State’s failure to be ready to proceed.” Four adjournments were necessary because the State failed to fulfill its obligation to provide discovery and at least three were attributed to the nonappearance of the State Troopers. Adjournments should generally be granted to either party for legitimate reasons, including the unavailability of a necessary witness. Ibid. However, every rule has its limits. “Postponement requests must be considered, in part, in light of preparation efforts. If they are not, parties will have no incentive to prepare.” Perkins, supra, 219 N.J. Super. at 126.

The weight of the delay resulting from the reoccurring unavailability of the State Troopers, despite information that their appearance was required, falls on the shoulders of the prosecutor. The State must be responsible to produce its witnesses when trial is called. We also consider significant the fact that the State did not discover its witnesses’ unavailability until the trial date, rather than securing their appearance ahead of time. Defendant and his counsel appeared and waited in court for hours only to learn the matter would not proceed. As a result of the miscommunication between the prosecutor and the State Police, the arresting officer was unable to appear until well into the night, and the breathalyzer administrator did not appear at all. Such circumstances are more than a “frustrating” inconvenience. In representing the State, the prosecutor and the police must accept responsibility for ensuring a defendant’s right to a speedy disposition of the charges is respected. This requires expediting all necessary discovery and maintaining communication with police witnesses to assure their availability.

As required by Barker’s third prong, defendant asserted his right to a speedy trial when timeliness became an issue. Defendant wrote a letter to the court and complained directly about the State’s repeated adjournment requests and the excessive delay in prosecuting this matter.

In reviewing the final prong of the Barker test, prejudice to the defendant, we note the delay caused no prejudice affecting defendant’s liberty interest or his ability to defend on the merits. Nevertheless, significant prejudice may also arise when the delay causes the loss of employment or other opportunities, humiliation, the anxiety in awaiting disposition of the pending charges, the drain in finances incurred for payment of counsel or expert witness fees and the “other costs and inconveniences far in excess of what would have been reasonable under more acceptable circumstances.” Farrell, supra, 320 N.J. Super. at 452; Fulford, supra, 349 N.J. Super. at 195; see also Dunns, supra, 266 N.J. Super. at 380 (stating that the unavailability of evidence or the inability of the State to proceed can justify the “continued exposure of defendant to anxiety and expense for only so long”); Merlino, supra, 153 N.J. Super. at 15-16 (holding that proof of actual trial prejudice is not “a necessary condition precedent to the vindication of the speedy trial guarantee”).

The repeated delays and unnecessary appearances due to the State’s ill-preparedness, which caused disruption of defendant’s everyday activities, the consumption of time and money, and emotional anxiety and uncertainty, add up to more than “minimal” prejudice to defendant.

We emphasize that “‘in the administration of justice[,] dismissal must be a recourse of last resort.’” Farrell, supra, 320 N.J. Super. at 447 (quoting Prickett, supra, 240 N.J. Super. at 147). However, in criminal and quasi-criminal matters, fundamental fairness demands that all parties — the State and the defense — seriously and diligently prepare and proceed to trial.

Under the facts presented, we conclude the State has fallen short in its responsibility, and the governmental interest in prosecution has been outweighed by defendant’s individual right to a speedy trial. Farrell, supra, 320 N.J. Super. at 453. Accordingly, defendant’s conviction is reversed, and the matter remanded for entry of an order of dismissal.

Reversed and remanded to the Law Division for further proceedings consistent with this opinion.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2582-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN MUSTARO,
Defendant-Appellant.
_________________________________
Argued November 10, 2009 – Decided
Before Judges Wefing, Grall and Messano.
On appeal from Superior Court of New
Jersey, Law Division, Camden County,
Municipal Appeal No. A-42-08.
Donald F. Browne argued the cause for
appellant (Merovitz, Cedar & Gruber,
attorneys; Mr. Browne, on the brief).
Jason Magid, Assistant Prosecutor, argued
the cause for respondent (Warren W. Faulk,
Camden County Prosecutor, attorney; Mr.
Magid, of counsel and on the brief).
Katherine D. Hartman argued the cause
for amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Attorneys
Hartman, Chartered, attorneys; Ms. Hartman,
on the brief).
APPROVED FOR PUBLICATION
December 14, 2009
APPELLATE DIVISION
December 14, 2009
2 A-2582-08T4
The opinion of the court was delivered by
GRALL, J.A.D.
Defendant Steven Mustaro appeals and challenges the denial
of his post-sentence motion to vacate his plea of guilty to
driving while intoxicated, N.J.S.A. 39:4-50.1 Relying upon the
court’s decision in State v. Parsons, 341 N.J. Super. 448 (App.
Div. 2001), defendant claimed he would not have pled guilty if
the State had provided him with a videotape recorded by the
camera in the arresting officer’s patrol car. By the time
defendant filed his motion, which was about twenty months after
he was sentenced, the videotape had been destroyed. Because
defendant did not present evidence that would permit the trial
court to conclude that the videotape was exculpatory and
material to his decision to plead guilty or that withdrawal of
his guilty plea is necessary to correct a manifest injustice, we
affirm.
On November 29, 2006, defendant pled guilty to driving
while intoxicated on September 27, 2006. The plea was entered
pursuant to the State’s agreement to dismiss additional charges
for violations of N.J.S.A. 39:4-88, failure to maintain a lane;
N.J.S.A. 39:3-29, failure to exhibit the vehicle’s registration;
1 By leave granted, the Association of Criminal Defense
Lawyers of New Jersey filed a brief and argued as amicus curiae.
3 A-2582-08T4
N.J.S.A. 39:4-57, failure to comply with the officer’s
direction; N.J.S.A. 39:4-96, reckless driving; N.J.S.A. 39:4-98,
speeding; N.J.S.A. 39:4-89, following too closely; N.J.S.A.
2C:29-2a(1), resisting arrest; and a violation of a municipal
zoning ordinance. At the time of his plea, defendant
acknowledged that he was operating a vehicle, had consumed four
or five beers and had a blood alcohol content of .14 as measured
by an Alcotest device.
In conformity with the Supreme Court’s order of January 1,
2006, which governed disposition of violations of N.J.S.A. 39:4-
50 pending the Court’s determination of the reliability of the
Alcotest device, defendant reserved “the right to appeal in the
event [the Court] concluded that the Alcotest is not reliable.”
State v. Chun, 194 N.J. 54, 64-68, cert. denied, ___ U.S. ___,
129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). His plea was not
entered subject to any other condition or reserved right. R.
7:6-2(c).2
2 While a guilty plea generally constitutes a waiver of
the right to challenge a constitutional violation not expressly
reserved, other than the denial of a motion to suppress
evidence, R. 7:5-2(c)(2); R. 3:5-7(d); State v. Greeley, 178
N.J. 38, 50-51 (2003), several state courts and Federal Courts
of Appeal have held that a defendant may withdraw a guilty plea
if the defendant can establish that “his guilty plea was not
voluntary and intelligent because it was made in the absence of
withheld Brady material.” Sanchez v. United States, 50 F.3d
1448, 1453 (9th Cir. 1995) (and cases cited therein); Parsons,
(continued)
4 A-2582-08T4
This was defendant’s first conviction for violation of
N.J.S.A. 39:4-50, and he was sentenced immediately following his
plea. The judge dismissed the pending charges for other
violations in conformity with the plea bargain, suspended
defendant’s license for seven months, required him to spend
twelve hours in the Intoxicated Driver’s Resource Center, and
imposed a $306 fine, $33 in court costs, a $50 VCCB assessment,
a $200 DWI surcharge, and a $75 SNSF penalty. Consistent with
the Supreme Court’s order in Chun, the judge stayed execution of
that sentence. 194 N.J. at 67-68, 150.
On March 17, 2008, the Supreme Court concluded that the
Alcotest device is reliable and specified conditions for
admission of Alcotest results. Id. at 65, 145, 150-51. The
opinion includes an order defining the scope of the limited
challenge available to defendants who entered conditional pleas
pending its decision in Chun. Id. at 68, 150-51.
In July 2008, defendant, who had retained different
counsel, filed a motion in the municipal court seeking leave to
vacate the guilty plea he had entered on November 29, 2006.
(continued)
supra, 341 N.J. Super. at 456-57 (and cases cited therein); cf.
United States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455,
153 L. Ed. 2d 586, 595 (2002) (concluding that due process does
not require “preguilty plea disclosure of impeachment
information” but suggesting that the analysis may be different
with respect to evidence of actual innocence).
5 A-2582-08T4
Defense counsel acknowledged that his client was not entitled to
relief under Chun. He argued, however, that defendant should be
permitted to withdraw his plea, because he had since learned
that the State failed to produce and subsequently destroyed a
videotape recorded on a camera installed in the patrol car. In
support of that application, defendant relied upon his prior
attorney’s request for “all Brady v. Maryland material,” a
certification from his new attorney, his own certification and
the police report prepared by the arresting officer, Patrolman
Adam Errico of the Audubon Police Department.
Aside from defendant’s prior admissions to driving after
consumption of four or five beers and a shot of tequila, the
only factual information about defendant’s violation before the
trial court was the following account provided in Errico’s
report. Errico took note of defendant’s Mercedes at 00:46 hours
on September 27, 2006. The Mercedes approached the rear of his
patrol car from the south at a high rate of speed, swerved into
the northbound traffic lane, and returned to the southbound lane
at a point behind and “extremely close to” the rear bumper of
the patrol car. Errico pulled into an intersecting street,
allowed the Mercedes to pass and then followed it from behind.
The driver turned onto another street and parked in front of
defendant’s home. At that point, Errico turned on his overhead
6 A-2582-08T4
lights and parked behind the Mercedes. When the Mercedes came
to a stop, defendant got out of the car and started to walk away
from the officer; he did not comply with Errico’s direction to
return to the Mercedes. After detecting alcohol on defendant’s
breath, Errico administered sobriety tests, some of which
defendant was unable to perform. Defendant subsequently
resisted the officer’s attempt to arrest him, and Errico needed
assistance to effectuate his arrest. At headquarters, defendant
was cooperative, but he told Errico that “all the charges would
be dropped because he was never driving a car.”
The certification defendant submitted in support of his
motion to vacate the plea did not include a denial of driving on
September 27, 2006.3 Instead, defendant noted that he told
“Patrolman Errico that [he] was not operating [the] vehicle
prior to the ’stop’” and quoted the corroborating passage from
Errico’s report. He also asserted that he told his attorney he
3 Defendant’s new attorney was careful to inform the
judge that defendant’s certification did not include an
“actual[] den[ial]” of operation. See N.J.R.E. 410(2)
(permitting use of a statement made during a plea proceeding “in
a criminal proceeding for perjury, false statement, or other
similar offense” but otherwise prohibiting use of those
statements at trial); State v. Malik-Ismail, 292 N.J. Super.
590, 595 (App. Div. 1996) (noting that N.J.R.E. 410(2)
“effectively supersedes” State v. Boyle, 198 N.J. Super. 64
(App. Div. 1984), a case permitting use of statements made at
the time of guilty plea later withdrawn to impeach defendant’s
inconsistent testimony at trial). See generally State v. Boone,
66 N.J. 38, 50 (1974).
7 A-2582-08T4
“wanted to testify that [he] never operated the car,” but he did
not provide any account or description of the circumstances that
led to his early-morning arrest outside his home.
Defendant, repeating what he claimed his former attorney
told him, certified that his lawyer had “assured [him that] he
[had] made a formal request for the video[] and was told by the
State that no video existed depicting the ’stop.’” He asserted
that he pled guilty because he believed he had no other choice.
According to defendant, his former attorney counseled him that
his denial of driving would raise a question of credibility that
the judge would likely resolve against him.
After the Chun decision, defendant’s newly retained
attorney requested the videotape. There is now no dispute that
a recording was made and the evidence it contained was
subsequently destroyed in accordance with the police
department’s procedures calling for reuse of the videotapes
after ninety days.
The attorney representing defendant on the motion to vacate
his guilty plea relied upon Parsons. He argued that because the
videotape was no longer available, the judge was required to
assume that it contained exculpatory evidence material to his
decision to plead guilty and warranting withdrawal of his guilty
plea.
8 A-2582-08T4
The judge of the municipal court applied Parsons, rejected
defense counsel’s argument, reiterated the terms of the sentence
imposed in November 2006 and stayed defendant’s sentence for an
additional twenty days to permit him to file an appeal in the
Law Division. Defendant’s appeal from the denial of that motion
was heard in the Law Division on December 18, 2008. The court,
relying for the most part upon the inconsistency between
defendant’s admission of operation at the time of the plea and
his claim about the exculpatory value of the videotape, denied
defendant’s motion and imposed the same sentence. Defendant’s
subsequent applications for a further stay of the execution of
his sentence pending appeal were denied by the Law Division,
this court and the Supreme Court.
Defendant raises three issues on appeal:
I. THE APPELLATE DIVISION SHOULD PROVIDE
GUIDANCE TO LOWER COURTS CONSIDERING A
REQUEST FOR A STAY OF A FIRST OFFENSE
DRIVING WHILE INTOXICATED MANDATED
DRIVER’S LICENSE SUSPENSION, DURING AN
APPEAL ALLEGING DIRECT VIOLATION BY THE
STATE OF DEFENDANT’S CONSTITUTIONAL
RIGHT TO DUE PROCESS, WHEN THE DENIAL
OF THE REQUEST FOR A STAY ESSENTIALLY
GUARANTEES DEFENDANT WILL SUFFER THE
DETRIMENT OF A LICENSE SUSPENSION
REGARDLESS OF THE OUTCOME OF THE
APPEAL.
II. A DEFENDANT IS ENTITLED TO INDULGENCE
FROM THE COURT WHEN MOVING TO WITHDRAW
A GUILTY PLEA, BEFORE SENTENCING, WHEN
THE PLEA WAS GIVEN BEFORE LEARNING OF
9 A-2582-08T4
THE STATE’S FAILURE TO PROVIDE
EXCULPATORY EVIDENCE IN ACCORDANCE WITH
STATE V. PARSONS.
III. ALL CHARGES AGAINST APPELLANT SHOULD BE
DISMISSED PURSUANT TO UNITED STATES V.
PICARIELLO.
We consider the argument presented in Point II of
defendant’s brief first. Absent “an abuse of discretion which
renders the lower court’s decision clearly erroneous,” State v.
Simon, 161 N.J. 416, 444 (1999), we must affirm a trial court’s
decision on a motion to vacate. A denial of a motion to vacate
a plea is “clearly erroneous” if the evidence presented on the
motion, considered in light of the controlling legal standards,
warrants a grant of that relief. See State v. Slater, 198 N.J.
145, 164 (2009).
These are the legal standards that govern defendant’s
application. Because defendant’s motion to vacate his plea was
filed twenty months after the municipal court imposed and stayed
execution of his sentence, he was required to demonstrate that
withdrawal of his plea was necessary to correct a “manifest
injustice.” R. 7:6-2(b); see R. 3:21-1; Slater, supra, 198 N.J.
at 158. His claim that the trial court was required to review
his motion with indulgence under the less burdensome “interest
of justice” standard is based, at best, on a misunderstanding of
either the facts or the law.
10 A-2582-08T4
Since the trial court denied defendant’s motion, the
Supreme Court has provided guidance for assessment of a motion
to withdraw guilty pleas. Slater, supra, 198 N.J. at 157.
Trial judges must “consider and balance four factors in
evaluating motions to withdraw a guilty plea: (1) whether the
defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant’s reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal
would result in unfair prejudice to the State or unfair
advantage to the accused.” Id. at 157-58. “No factor is
mandatory; if one is missing, that does not automatically
disqualify or dictate relief.” Id. at 162. And, where, as
here, the motion is made subsequent to sentencing, the timing is
relevant to “the strength of the reasons proffered in favor of
withdrawal” under the second factor; “efforts to withdraw a plea
after sentencing must be substantiated by strong, compelling
reasons.” Id. at 160.
In the context of Slater, defendant’s claim — that he
should be permitted to withdraw his plea because the State did
not comply with its obligation to provide the videotape in
discovery — is relevant to the second factor — “the nature and
strength of defendant’s reasons for withdrawal.” Id. at 157-58.
11 A-2582-08T4
On this post-sentence motion, he was required to substantiate
the claim with “strong, compelling reasons.” Id. at 160.
Defendant’s entitlement to relief under Parsons depends
upon proof that his right to due process was violated by the
State’s failure to disclose or preserve exculpatory evidence as
recognized in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963), California v. Trombetta, 467 U.S. 479,
488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413, 422 (1984), United
States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985), and Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct.
333, 102 L. Ed. 2d 281 (1988). See State v. Marshall, 123 N.J.
1, 107-09 (1991). To make that showing, defendant was required
to demonstrate that: “(1) the prosecutor failed to disclose the
evidence, (2) the evidence was of a favorable character to the
defendant, and (3) the evidence was material. Moore v.
Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972);
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959).” Parsons, supra, 341 N.J. Super. at 454-55. The
measure of materiality is the likely impact of the evidence
withheld, i.e., whether there is “a reasonable probability” that
if the evidence had been disclosed “the result of the proceeding
would have been different.” Bagley, supra, 473 U.S. at 682, 105
S. Ct. at 3383, 87 L. Ed. 2d at 494. And, a “reasonable
12 A-2582-08T4
probability” is one “sufficient to undermine confidence in the
outcome.” Ibid.
In Parsons, this court articulated that standard for
evaluating materiality when the defendant seeks to vacate a
guilty plea on a claimed Brady violation. 341 N.J. Super. at
454-56. We concluded that “materiality,” in that context,
requires the defendant to show a reasonable probability that he
or she would not have pled guilty if the State had provided the
evidence. Ibid.; accord Campbell v. Marshall, 769 F.2d 314, 324
(6th Cir. 1985) (rejecting a claim on the ground that the
defendant had not shown that the evidence would have been
controlling in his decision to plead guilty). We identified
five factors bearing on the probability that defendant would not
have pled guilty but for the discovery violation: “(1) the
relative strength and weakness of the State’s and the
defendant’s case, (2) the persuasiveness of the withheld
evidence, (3) the reasons, if any, expressed by the defendant
for choosing to plead guilty, (4) the benefits obtained
[through] the plea, and (5) the thoroughness of the plea
colloquy.” Parsons, supra, 341 N.J. Super. at 456. Viewed in
light of Slater, these Parsons’ factors are relevant to the
defendant’s reasons for withdrawing the plea.
13 A-2582-08T4
In Parsons, the State conceded that it withheld evidence
that was “favorable to defendant, discoverable under our rules
of practice, and should not have been concealed.” Id. at 455.
In this case, there is no question that the State had an
obligation, pursuant to the applicable discovery rule, to
provide the videotape. R. 7:7-7(b). Even if the prosecutor was
not aware of its existence, the arresting officer was, and the
officer’s knowledge is imputed to the State. See Kyles v.
Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68, 131 L.
Ed. 2d 490, 508-09 (1995) (imputing knowledge of evidence known
to the police to the prosecutor); accord State v. Womack, 145
N.J. 576, 589 (1996), cert. denied, 519 U.S. 1011, 117 S. Ct.
517, 136 L. Ed. 2d 405. Unlike in Parsons, however, in this
case the State does not concede that the videotape was favorable
to the defense.
Defendant claims that the trial court was required to
assume that the tape, now erased, included evidence favorable to
him and material to his decision to plead guilty. Precedent
does not support that assertion. For purposes of entitlement to
relief under Brady and the Due Process Clause of the Fourteenth
Amendment, a defendant must show that evidence withheld is
“‘material exculpatory evidence.’” Marshall, supra, 123 N.J. at
14 A-2582-08T4
109 (quoting Youngblood, supra, 488 U.S. at 57-58, 109 S. Ct. at
337, 102 L. Ed. 2d at 289).
When the evidence withheld is no longer available, to
establish a due process violation a defendant may show that the
evidence had “an exculpatory value that was apparent before [it]
was destroyed” and that “the defendant would be unable to obtain
comparable evidence by other reasonably available means.”
Trombetta, supra, 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed.
2d at 422; see Marshall, supra, 123 N.J. at 108-09.
Alternatively, if the defendant cannot establish that the now
lost evidence had “apparent” exculpatory value and can show only
that the evidence was “potentially” useful or exculpatory, then
the defendant can show a due process violation by establishing
that the evidence was destroyed in bad faith. Youngblood,
supra, 488 U.S. at 57-58, 109 S. Ct. at 337, 102 L. Ed. 2d at
289; see State v. Reynolds, 124 N.J. 559, 569 (1991) (rejecting
Brady claim because the destroyed tapes in issue “did not
possess any apparent exculpatory value, and because their
destruction did not involve bad faith”); cf. State v. Greeley,
354 N.J. Super. 432, 437 (App. Div. 2002), rev’d on other
grounds, 178 N.J. 38 (2003) (considering “‘(1) the bad faith or
connivance by the government; (2) whether the evidence was
sufficiently material to the defense; and (3) whether the
15 A-2582-08T4
defendant [has been] prejudiced’ by the loss of the evidence”
and quoting State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.
1997), certif. denied, 152 N.J. 10 (1997), cert. denied, 524
U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998)); State v.
Colasurdo, 214 N.J. Super. 185, 189 (App. Div. 1986) (quoting
State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.),
certif. denied, 101 N.J. 335 (1985)).4
The evidence defendant presented to the trial court did not
establish that the videotape had more than “potential
exculpatory” value relevant to a violation of N.J.S.A. 39:4-50.
The State was required to show that defendant was driving and
was intoxicated. Defendant’s Alcotest results established his
intoxication as a matter of law, and nothing depicted on the
videotape could defeat that proof of a per se violation. State
v. Gordon, 261 N.J. Super. 462, 467 (App. Div. 1993). At the
time of his guilty plea, defendant admitted that he was driving.
In support of his motion to withdraw, defendant provided no
information to the trial court that would have allowed the court
to conclude that the videotape included evidence that would show
4 Some jurisdictions have determined as a matter of
state constitutional law that proof of bad faith is not
required. See, e.g., State v. Johnson, 951 A.2d 1257, 1284
(Conn. 2008). As indicated by the citations to Marshall and
Reynolds above, the New Jersey Supreme Court has followed
Youngblood.
16 A-2582-08T4
he was not driving. Defendant’s certification did not include a
denial of driving — a fact his attorney was careful to point out
to the judge — or any factual assertions suggesting the
videotape would show him doing something inconsistent with
having driven the car. He did not, for example, indicate that
someone else was driving or that he was outside after midnight
because he was taking a walk, welcoming a guest or getting
something from his car. Moreover, Patrolman Errico’s report,
the only relevant evidence of the event presented to the trial
court, suggests nothing other than that the video camera in his
patrol car was activated after the Mercedes had stopped; that is
when Errico reports that he switched on the patrol car’s
overhead lights. From the information presented on the motion,
the most one could conclude is that the videotape might not show
defendant driving or getting out of the parked car. But, even
if the videotape failed to depict that conduct, it would not
establish that defendant had not been operating the car before
the video camera was activated.
The record is also devoid of evidence that would permit an
inference of bad faith or connivance on the part of the State at
the time the evidence was destroyed. Defendant was arrested on
September 27, 2006 and pled guilty on November 29, 2006,
approximately two months after his arrest. Defendant does not
17 A-2582-08T4
dispute that the videotape was reused in accordance with
departmental procedures no earlier than ninety days after his
arrest, which is about a month after his guilty plea. Those
facts are not indicative of bad faith. See Reynolds, supra, 142
N.J. at 569. After the plea, the State had no reason to assume
or suspect that the videotape would play any role in this case.
Even before the plea, given defendant’s Alcotest results and
Errico’s report, a videotape that did not depict defendant
driving or getting out of his car would not have “apparent”
exculpatory value.
Because defendant did not establish that the videotape had
exculpatory value that was apparent to the State when it was
erased through reuse or that its potentially exculpatory value
was destroyed in bad faith, defendant could not establish his
entitlement to relief. Ibid. Even if we were to assume that
the videotape included exculpatory evidence and was available to
the prosecution at the time of discovery, we could not conclude
that defendant demonstrated that the videotape was material to
his decision to plead guilty. See United States v. Pedraza, 27
F.3d 1515, 1527 (10th Cir. 1994) (assuming existence at the time
of discovery and considering materiality), cert. denied, 513
U.S. 941, 115 S. Ct. 347, 130 L. Ed. 2d 303.
18 A-2582-08T4
Under Parsons, defendant was required to establish a
reasonable probability that he would not have pled guilty if he
had the videotape, which is largely a function of the relative
strength and weakness of the case for the prosecution and the
defense and the persuasiveness of the withheld evidence. 341
N.J. Super. at 456. In making that assessment, other courts
have considered statements made by the defendant at the time of
the plea. See Campbell, supra, 769 F.2d at 322, 324 (finding
that knowledge of a victim’s possession of a gun, while
important to the defendant and his attorney, would not have led
him to go to trial on a claim of self-defense because of the
great weight that must be assigned to defendant’s admission,
made in open court at the time of his guilty plea, that he shot
his former wife and her companion because they were with one
another). We agree with that approach.
Nothing in Parsons or Slater precludes consideration of the
factual basis a defendant provided at the time of a guilty plea
in evaluating the persuasive value of evidence withheld by the
State on a motion to vacate a guilty plea. Parsons simply holds
that courts “should not insist that the defendant proclaim his
innocence in order to retract a guilty plea” when the relief is
sought due to the State’s failure to provide discovery. 341
N.J. Super. at 457. Slater holds that a defendant who has
19 A-2582-08T4
provided a factual basis for his guilty plea may establish a
plausible claim of innocence and a reason for withdrawal of a
plea by asserting that he was not aware of a possible defense
when he pled guilty. 198 N.J. at 163-65. The question here is
different; it is whether a court is required to assume that the
defendant would have testified to facts in direct conflict with
those facts he stated, under oath, at the time of his guilty
plea. We decline to adopt such a rule because it would be in
conflict with decisions of our Supreme Court stressing the
necessity for a defendant to provide a truthful factual basis
for a guilty plea under oath. See State v. Taccetta, 200 N.J.
183, 195-96 (2009).
For the foregoing reasons, we cannot conclude that the
trial court was required to assess the persuasive value of the
videotape on the assumption that defendant would have denied
driving if he had proceeded to trial instead of pleading guilty.
Because defendant admitted that he was driving at the time of
the plea, the court could properly assume that defendant would
have done nothing more than leave the State to its proofs.
Thus, the question material to defendant’s decision to plead
guilty was the persuasive value of the videotape on the issue of
driving in light of the State’s evidence. Relying on our
earlier discussion of the potential value of the videotape in
20 A-2582-08T4
light of Errico’s report, it is apparent that the videotape
would have been inconclusive on the question whether defendant
was driving the Mercedes before his arrest. In short, the
videotape might have provided some fodder for cross-examination
of Errico about defendant’s driving in addition to the material
already available based on the passage in Errico’s report noting
defendant’s denial at police headquarters. So viewed, the
persuasive value would have been negligible.
On this record, the trial court could not have concluded
that if defendant had the videotape he would have gone to trial
and rejected the favorable plea bargain he received, which
resulted in the dismissal of numerous charges and permitted him
to reserve his right to challenge the Alcotest results in the
event the Supreme Court found the device unreliable. As that
was the only reason defendant gave for moving to withdraw his
guilty plea twenty months after he was sentenced, defendant
simply did not meet his burden of providing the trial court with
a strong and compelling reason to grant that relief. Slater,
supra, 198 N.J. at 160.5
5 Defendant does not argue that the court erred by
making that determination without taking testimony. Given
defendant’s sworn admission to driving at the time of his guilty
plea and his cautious reliance on his post-arrest denial as
reported by Errico in support of his motion, we see no reason to
disturb the trial court’s decision to discredit defendant’s bald
(continued)
21 A-2582-08T4
None of the other relevant factors identified in Slater
weigh in defendant’s favor. He did not “assert[] a colorable
claim of innocence” and, as noted above, his plea was entered
pursuant to “a plea bargain” that was quite favorable. Id. at
157-58. Other than the prejudice inherent in the fact that the
videotape had been destroyed in accordance with the police
department’s procedures and consequently was no longer available
to the prosecution, there is no evidence relevant to “unfair
prejudice to the State or unfair advantage to the accused,” but
the State is not obligated to show prejudice when the “defendant
fails to offer proof of other factors in support of the
withdrawal of a plea.” Id. at 161-62.
The record did not permit a finding that a grant of
defendant’s motion to vacate his guilty plea was necessary to
correct a manifest injustice. Accordingly, we affirm.
In light of our conclusion that defendant failed to
establish a due process violation related to discovery, it is
unnecessary for us to address the issues raised in Point III of
defendant’s brief. With respect to the argument raised in Point
I, we find no need for clarification or amplification of the
standards governing a stay pending appeal and conclude that the
(continued)
assertion about the importance of the videotape to his decision
to enter a guilty plea.
22 A-2582-08T4
arguments lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.

Supreme Court has made its final decision and given the Verdict regarding, NRO ” National Reconciliation Ordinance ” which is shows once again Pakistan Judiciary is back in power, but after reading all, which declared NRO no longer exist and Justice is back as it was uptill 2007, I am wondering what about the BIG FISH? President, even on that time former president was untouchable, yet again this president also has many cases, how can court allow these government servants to serve when they are accused not now but since 1986 for their various acts, federal government allows ministers and suspends the officers who stops them since their name exist in Exit Control List ( ECL ) than again they are being suspended, did SC said such thing ” NO ” Prime Minister and President are  serving nation or doing as the feels like, firstly it would have been much better if they would have suspended all the ministers and honorable personals those who are in list and issued arrest warrants, because under the shelter or as Court said covering Blanket they did practice wrong  and still holding on same position until and unless they will not be found guilty, if so, why SC needed assurance of NAB ” National Accountability bureau “.

I personally respect SC’s opperval of such sensitive matter, under which the hundreds of cases were under cover, but there should be positive response for the people pakistan such as resignation of President ? which SC cannot since it does not hold the power they are in the hands of President of Pakistan at present. beside President his regime which is accused and already allegation why are they still functioning as part of government?

Prime Minister yesterday’s statement to remove Flag of Pakistan from their Government Vehicles, is not enough for the people of pakistan, as there are many who has taken advantage of NRO from currently ruling party PPP and MQM there are so many who are also from PML(N) why there is no word about it, nor anyone is discussing about them. accountability means for everyone since it is the matter of nation’s treasure not just federal issue,  last night watching NEWS BEAT program on Television I heard MS.Wahab spoke person for  PPP saying that ” NAB was formed by Nawaz Sharif until and unless there will be no accountability as Independent accountability commission formed it  will not be fair enough ” What exactly she mean by this, is it to say that Now this government does not trust NAB nor SC’s approved order which is now be given in the hands of NAB department since most of the accused and petitioners reached through it. If there will be no form of trust in Departments and Government, no matter we make another commission or let existing one exercise while keeping an eye. there will be no good results of it.

Mr.Rehman Malik is also in the List but  by removing Flag and rest of the powers as interior minister of pakistan in hand does not seems fair. SC given it’s final verdict about NRO ” NULL and VOID ” than why not these ministers are suspended / removed from their charge, since they are already corrupt , none of the case is new , all the cases uptill 2007 has re opened what about till dated ?

Nation is celebrating on one hand that finally the glance of hope and for the national interest SC decided something, where as still these issues stays and No accountability of the president until is in charge. that is unfair ……

By Faree Imaan

This post answers some questions that I have been asked over the years and also to share some of the decisions that I have had to make over time concerning what equipment to haul with me and how to carry it. Bear in mind that this is all based upon my own experiences and I hope that it will stimulate ongoing discussion on the subject. When it comes to these decisions, there is not really a definitive right answer but there certainly will be wrong ones!

Recently, I had the pleasure of visiting the Airborne and Special Operations Museum in Fort Bragg, NC. As I walked in, I was informed that camera bags and backpacks would have to remain at the information desk and flash photography was forbidden (which I expected anyway). I decided to walk my camera bag back to the car to lock it away in the trunk. At that moment, I had to decide WHAT specifically to take with me. What to choose? After all, I did not have my photographer’s jacket with me so I could not load up with lenses and flash. This is a good example of how we photographers are pushed into circumstances where we have to choose a limited subset of our equipment and hope to make the right choice. More about this decision later in this article.

What do you choose to haul gear with? There are a plethora of bags, backpacks, cases, and vests to contain our cameras, lenses, filters, and flashes. I can tell you what I use and walk through my reasoning for each choice.

First, let me run you through my basic equipment lineup. I use a Nikon D-100 DSLR and have the following lenses: Nikkor 70-210mm zoom, Nikkor 50mm, Nikkor 35-70mm zoom, Nikkor 24mm, Sigma 14mm EX, and a Nikkor 300mm/f4 ED. The latter lens has its own case. I also need to cart around an SB-26 flash unit and a LunaPro F light meter. I have the following carrying options:

1. A Tamrac large bag purchased years ago which is approximately equivalent to the Model 612 Pro System 12. At the time I purchased it, I had a few lenses but two camera bodies, a Nikon F4 with motor drive and a Nikon FM2, also with motor drive. Even after shedding these, because of my larger number of lenses, this is my bag of choice. It can even accommodate my camera with the 300mm lens attached as long as I spread out the other lenses in the proper way within the case to eliminate collisions.
2. A Tamrac intermediate bag purchased years ago which is equivalent to the Model 606 Zoom Traveler 6. This is my travel bag of choice. It will handle my camera and a few key lenses (e.g. the 35mm, 24mm, 14mm, and zoom).
3. A Domke photographer’s vest with lots of big pockets. This is helpful to keep key equipment readily handy. I use it whenever I need mobility or plan to hike around considerably (e.g. at a zoo).

These have all tended to work well for their intended purposes. I have rarely wished for a backpack solution, but have been able to live without it until now.

Now its time to get back to the earlier scenario. What did I decide to take and was it the right decision? I grabbed my D-100 and affixed the 24mm lens and marched back into the museum. I figured that it was the best compromise lens, Yes, the 50mm is f/1.8 while the 24mm is f/2.8 however the latter is better for the angle of view which makes it approximately equivalent to a 36mm lens with the form factor of the D-100. Yet, since I wanted to do some panoramic shots, it was a good compromise because the 14mm might have introduced too much distortion for the panoramic software I was using. I also had to consider that I was going to have to handhold most of my shots. In the long run, I believe that I made the right choice but I will let you be the judge. Here are my shots on Flickr.

It is a good idea to think about what you would pick for different scenarios. What one lens would you choose to take into a zoo, into a play, etc.?