Opinion
DOCKET NO. A-3099-13T3
10-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AMISH JHAVERI, Defendant-Appellant.
Leckerman Law, LLC, attorneys for appellant (Kevin Leckerman, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 36-2013. Leckerman Law, LLC, attorneys for appellant (Kevin Leckerman, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Amish P. Jhaveri appeals from his February 2014 conviction, after a trial de novo, of driving while under the influence of intoxicating liquor (DWI), N.J.S.A. 39:4-50. It was defendant's second conviction.
I.
In brief, the evidence demonstrated that defendant was already stopped on the shoulder of the Garden State Parkway with hazard lights flashing, at around midnight, when a State trooper approached to determine if defendant needed assistance. Based on the odor of alcoholic beverages, defendant's admission that he had two drinks, and other evidence, the trooper required defendant to perform field sobriety tests. Defendant performed poorly. He was arrested and administered an Alcotest breath test, which showed he had a blood alcohol level of .12. Consistent with the municipal court's decision, the Law Division suspended defendant's license for two years; required forty-eight hours in the Intoxicated Driver Resource Program, thirty days of community service, and six months with an ignition interlock; and imposed mandatory fines and monetary penalties.
Defendant unsuccessfully argued before the Law Division that (1) the officer lacked reasonable and articulable suspicion sufficient to warrant requiring defendant to exit the vehicle and perform field sobriety tests; (2) the Alcotest results were inadmissible because the operator failed to follow the testing protocols required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); and (3) observational proof alone was insufficient to support his DWI conviction. Defendant renews those arguments before us. We are unpersuaded and affirm.
II.
In reviewing a trial court's decision on a municipal appeal, we determine whether sufficient credible evidence in the record supports the Law Division's decision. State v. Johnson, 42 N.J. 146, 162 (1964). Unlike the Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a), we do not independently assess the evidence. State v. Locurto, 157 N.J. 463, 471 (1999). In addition, under the two-court rule, only "a very obvious and exceptional showing of error" will support setting aside the Law Division and municipal court's "concurrent findings of facts." Id. at 474. However, we exercise plenary review of the trial court's legal conclusions that flow from established facts. State v. Handy, 206 N.J. 39, 45 (2011).
A.
We address first defendant's argument that the trial court erred in finding that the arresting officer had reasonable and articulable suspicion of a violation of law, prompting him to compel defendant to perform field sobriety tests. Defendant seeks to suppress the results of the field sobriety tests, but does not challenge the officer's initial approach to the stopped vehicle or the court's finding of probable cause to arrest.
We are guided by well-settled principles. A police officer may, without a warrant, conduct an investigatory traffic stop based on a reasonable and articulable suspicion that a defendant committed a traffic offense. "[A] stop founded on a suspected motor vehicle violation essentially is governed by the same case law used to evaluate a stop based on suspected criminal or quasi-criminal activity." State v. Golotta, 178 N.J. 205, 213 (2003).
The "articulable reasons" or "particularized suspicion" . . . must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.Reasonable suspicion is a "lower standard than the probable cause necessary to sustain an arrest." Golotta, supra, 178 N.J. at 213. Reasonable articulable suspicion may exist even if there is an innocent explanation for the objective facts. See State v. Citarella, 154 N.J. 272, 279-80 (1998) ("The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as a reasonable person would find the actions consistent with guilt.") (internal quotation marks and citation omitted).
[State v. Davis, 104 N.J. 490, 504 (1986).]
During an investigatory stop, an officer may require a driver to perform field sobriety tests if he has reasonable suspicion of driving under the influence. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) ("[A] single police officer asked [the suspect] a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest."); see also State v. Bernokeits, 423 N.J. Super. 365, 374 (App. Div. 2011) ("In our view, administration of the field sobriety tests is more analogous to a Terry stop than to a formal arrest, and therefore may be justified by a police officer's reasonable suspicion based on particularized, articulable facts suggesting a driver's intoxication.").
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The trial judge credited the testimony of the State's sole witness, New Jersey State Trooper Bartlomiej Koziel, who stated he detected the odor of alcoholic beverages when he reached the passenger side of defendant's stopped vehicle. Defendant was seated in the driver's seat; his wife was seated to his right. Defendant admitted that he had two drinks that night. Defendant was of modest stature. Defendant also had bloodshot, watery eyes. The trooper also testified that defendant slowly moved his hands retrieving his documents and fumbled through them. The hour was late.
We are satisfied that these facts support a reasonable and articulable suspicion that defendant was driving under the influence, sufficient to warrant field sobriety tests. A driver's admission of drinking alcohol coupled with the officer's observation of other indicia of intoxication may create reasonable suspicion of drunk driving. See Bernokeits, supra, 423 N.J. Super. at 375-76; State v. Adubato, 420 N.J. Super. 167, 181-82 (App. Div.), certif. denied, 209 N.J. 430 (2012). In Bernokeits, supra, the court found reasonable suspicion where a driver was stopped late at night coming from a bar, he admitted having one beer, was nervous, and had the "strong odor of hard liquor" on his breath. 423 N.J. Super. at 376.
In Adubato, supra, field sobriety tests were justified where the driver admitted he had been drinking at a pub and the officer observed that he had the smell of alcohol on his breath, slurred speech, and bloodshot and watery eyes. 420 N.J. at 181-82. See also State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992) (finding probable cause to arrest where driver was stopped in a parking lot at 11:45 p.m. with the lights on and the engine running, his "breath disclosed a heavy odor of alcohol," and he acknowledged drinking, notwithstanding his satisfactory performance of field sobriety tests).
We recognize that the court in State v. Jones, 326 N.J. Super. 234, 244-45 (App. Div. 1999) stated that the "mere smell of alcohol and admission of consumption may not, by itself, warrant a sobriety test." However, the administration of the sobriety tests was not at issue in that case. Id. at 238, 244-45. In any event, the totality of the circumstances here included more: the quantity of drinks consumed by defendant; the lateness of the hour; his decision to pull off to the shoulder of a highway; his bloodshot and watery eyes; and his slow and fumbling hand movements.
B.
We turn next to defendant's challenge to admission of the Alcotest results. The ground here is well-trod. The Supreme Court held in Chun, supra, that the Alcotest, using New Jersey Firmware 3.11, was generally scientifically reliable, if administered in accordance with the guidelines set forth by the Court. 194 N.J. at 65. As a precondition to admitting Alcotest results into evidence, the State must establish by clear and convincing evidence that (1) the Alcotest was in working order and inspected prior to the test in question; (2) the operator was certified; and (3) the operator administered the test "according to official procedure." Id. at 92, 134. In particular, "when the test is administered, an Alcotest operator must observe a subject for twenty minutes before commencing the test to ensure that the subject does not put anything, such as alcohol, tobacco, or chewing gum in his or her mouth during that time." State v. Kuropchak, 221 N.J. 368, 383 (2015). "The operator should also remove all 'cell phones and portable devices' from the testing room." Ibid.
Since the decision in Chun, various challenges to the admissibility of Alcotest results have been considered and rejected. See State v. Robertson, 438 N.J. Super. 47, 68-73 (App. Div. 2014) (rejecting argument that Alcotest results should have been excluded because of failure to produce certain repair records and downloaded data the State routinely erased), certif. granted on other grounds, 221 N.J. 287 (2015); State v. Carrero, 428 N.J. Super. 495, 510 (App. Div. 2012) (rejecting argument that presence of radio frequency interference sources in testing area "suffice[s] to call into reasonable question the accuracy or validity of the Alcotest results"); Id. at 513 (holding that twenty-minute observation does not require eye-to- eye monitoring, stating "[t]he observation may be conducted through non-visual as well as visual means, so long as the observer is able to detect whether the driver has ingested or regurgitated something that would confound the Alcotest results"); State v. Holland, 422 N.J. Super. 185, 196-97 (App. Div. 2011) (rejecting argument that results should be suppressed because a scientifically equivalent thermometer other than the one identified in Chun was utilized); State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div.) (rejecting argument that Alcotest results should be suppressed because the arresting officer, not Alcotest operator, conducted the twenty-minute observation), certif. denied, 202 N.J. 346 (2010).
Defendant raises two familiar arguments: (1) the operator did not adequately observe him for twenty minutes, as required by Chun, supra, 194 N.J. at 79, to assure there was no regurgitation or ingestion that would affect mouth alcohol; and (2) the Alcotest operator failed to remove all portable electronic devices from the testing area. Defendant adds a third argument, contending that the results should be suppressed because the State did not offer affirmative proof that the operator replaced the mouthpiece before defendant gave a breath sample. We are unpersuaded.
The trial judge found that the trooper put away cell phones and his portable radio, but acknowledged the contention that one piece of electronic equipment may have remained. It is of no moment. We held in Carrero, supra, that the State was not obliged to prove the absence of all electronic equipment as a condition of admissibility, because the Alcotest machine was well-shielded from radio frequency interference. 428 N.J. Super. at 510. The trial court found no evidence that electronic equipment affected the Alcotest results. We discern no error.
Likewise, we find no merit in defendant's complaint that the State did not prove compliance with the twenty-minute observation requirement. Defendant claims the trooper did not maintain "face-to-face" observation for twenty minutes because he was processing papers and preparing for the test. Defendant also contends that his wife testified that he had been chewing tobacco before the arrest, and the officer did not search defendant's mouth to make sure it did not contain tobacco.
As we stated in Carrero, "non-visual" observation may be sufficient. 428 N.J. Super. at 513; see also State v. Filson, 409 N.J. Super. 246, 258 (Law Div. 2009) (stating that observation does not "consist only of eye-to-eye contact"). An operator's momentary glance away from the subject does not preclude the State from meeting its burden, provided the operator was close enough to the subject to "detect contamination" through other means. Filson, supra, 409 N.J. Super. at 261.
The trial court was satisfied that there was "no evidence that while at the station [defendant] had anything in his mouth." That finding was supported by the record. The trooper testified that at the arrest scene, defendant told him he had nothing in his mouth. The trooper did not see anything in defendant's mouth, and defendant did not put anything in his mouth thereafter. Defendant's wife's testimony that defendant chewed tobacco earlier in the evening, and that she never saw him spit it out, does not refute the trooper's testimony. Nor does Chun require an oral cavity search in advance of the Alcotest administration. Cf. Chun, 194 N.J. at 79 (stating "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"). Other observations, as well as the suspect's own statements, may be sufficient.
As for defendant's argument about the mouthpiece, the correct procedure for conducting the test includes replacing the disposable mouthpiece before each test. Id. at 80 (stating that after a blank air test, "[t]he operator then attaches a new, disposable mouthpiece"). Defendant's field-sobriety-and-Alcotest expert testified that, based on a data download of the device used, another suspect was tested on the device two minutes before the trooper began defendant's breath testing. The expert opined that the results of defendant's test were not reliable in part because the trooper did not expressly testify that he changed the mouthpiece.
We note that on redirect, the prosecutor directly asked the trooper if he changed the mouthpiece prior to administering the Alcotest. Defense counsel objected to the question as outside the scope of cross-examination. Although the municipal court overruled the objection, the prosecutor moved on to another question. The Law Division judge concluded that the defense should be precluded from relying on the absence of direct evidence when it "thwarted" the State's efforts to elicit it, notwithstanding that the objection was overruled. --------
First, there is no indication in Chun that the requirement that the operator change the mouthpiece was designed to prevent mouth alcohol of a prior test subject from remaining on the mouthpiece and affecting a subsequent test result. The Special Master's Report explained that "[a] disposable mouthpiece fits onto the breath hose to ensure a better seal, make it easier to exhale, and aid hygiene." State v. Chun, Special Master's Report, 2007 N.J. LEXIS 39, at *36 (Feb. 13, 2007) 32, 51. In any event, there was no evidence that the prior test subject had significant blood alcohol in his or her system.
Second, we decline to hold that the State is obliged, as a pre-condition to admissibility of Alcotest results, to present affirmative proof of compliance with each step of the required procedure. The trooper testified that he followed "all of the prompts." Based on that statement, the court could conclude that all procedures were followed. "[T]here is a key difference between the responsibilities of the operator in administering the Alcotest and the State's burden of proof at trial." Ugrovics, supra, 410 N.J. Super. at 489. While the operator must attach a new mouthpiece before each breath sample, the State is not obliged to present affirmative evidence of that specific step and every other step in the process. The court may be satisfied based on the totality of the circumstances that the operator followed required procedures.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION