A defendant in a DWI case, State v. Arbuckle, appealed his conviction after a trial de novo in the Superior Court, Law Division. He argued in part that the court erred in admitting Alcotest results into evidence. The Appellate Division noted that the lower court had applied factors established by the New Jersey Supreme Court in State v. Chun when it reviewed the arresting officer’s conduct in administering the Alcotest. Chun was a landmark 2008 decision regarding the use of Alcotest machines by New Jersey law enforcement. We represented one of the defendants in that case and participated in the argument.
In the present case, the defendant was arrested shortly after 2:00 a.m. on January 26, 2013. The arresting officer reportedly responded to “an anonymous call that a snow plow was recklessly kicking up dirt and rocks” in the parking lot of a club in Manville, New Jersey. The officer observed the defendant in a vehicle “with its plow down despite the lack of snow on the roads.” He claimed to have smelled alcohol on the defendant’s breath and stated that the defendant admitted to drinking. The officer testified that he terminated the field sobriety tests because the defendant could not keep his balance. He placed the defendant under arrest and took him to the station for breath testing.
Under Chun, an officer administering an Alcotest must wait 20 minutes before collecting a breath sample because of the risk of a false reading caused by residual alcohol in a person’s mouth. They must observe the person for the entire 20-minute period to make sure that no additional alcohol gets into the person’s mouth. The 20-minute period must start over if the person vomits or otherwise regurgitates, if they swallow anything, or if the operator notices any foreign object in the person’s mouth, such as gum or chewing tobacco. According to a 2012 Appellate Division ruling, State v. Carrero, the operator does not have to maintain eye contact with the person for the entire 20 minutes. They are only required to maintain as much visual contact as is needed to determine if they have “ingested or regurgitated something that would confound the Alcotest results.”