NJ DWI Law Update: Jersey Supreme Affirms Alcotest Subject be Monitored by “Any” Competent Witness(es)

The New Jersey State Supreme Court Appellate Division recently rejected the argument of defendant-respondent, Damian Tirello, who claimed that his breath test results were not admissible as evidence because the Alcotest-trained police officer did not remain in the DWI room with him breathalyzer test.

The Court referred to a previous ruling (State v. Ugrovics, 410 N.J. Super. 482 [App. Div. 2009]), and stated that the procedural requirements were in fact met in original case against Mr. Tirello. The appeal had been brought by the state as a result of a lower court’s decision to throw out Tirello’s breath test results due to a failure of the police to follow the correct procedure.

As a New Jersey drunk driving defense attorney and former municipal prosecutor, I understand the ins and outs of breath testing. In this particular case, the subject of the breathalyzer test claimed that the same officer did not remain in the DWI room, having left for a period of time before coming back to administer the breath test. However, the Court ruled that because another officer was in the room with the suspect continuously that the procedures were followed and the breath test results would stand.

According to court records, Tirello was arrested following a two-car accident in Wildwood, NJ. The man admitted to police that he was one of the drivers involved, during which Patrolman Nino Cusella detected an odor of alcoholic beverage on defendant’s breath and observed that defendant’s eyes were watery and bloodshot.

Although Tirello reportedly denied drinking any alcoholic beverages, Officer Cusella told him that he was stuttering and his speech was slurred. The suspect then admitted to drinking a couple of beers earlier in the evening. Although defendant was able to recite the alphabet, he swayed while performing field sobriety tests. He was then arrested, handcuffed and searched.

Officer Cusella testified that “everything” was taken from defendant’s person, including his cell phone and any type of food, gum, mints or cigarettes. Police kept the suspect handcuffed in the patrol car and they were not removed until he was taken into the “DWI room” by Officers Cusella and Chobert.

According to reports, Tirello remained in the presence of an officer who was able to observe that he never put anything in his mouth, did not burp or regurgitate and did not use the bathroom.

In his original trial, Tirello testified that Officer Cusella, who is a certified Alcotest operator, left his presence for approximately five to ten minutes after taking his information for processing. However, during this period, Officer Castro was present and spoke with defendant.

According to the Court, Officer Castro testified that he understood it is necessary to observe a DWI arrestee for twenty minutes following arrest before an Alcotest can be administered. Castro stated that he observed defendant for that amount of time.

The only challenge to the procedure followed was that, because Officer Cusella left defendant for approximately five to ten minutes, there was an allegedly fatal interruption to a continuous twenty-minute observation period.

Tirello was eventually convicted in municipal court of a second offense for driving while intoxicated, N.J.S.A. 39:4-50(a) (DWI). In an appeal of that original conviction, the Law Division judge ruled that the Alcotest results were inadmissible and reinstated defendant’s driving privileges.

Unfortunately for Mr. Tirello, the NJ State Supreme Court Appellate Division reversed the decision from that earlier appeal stating:

“[T]he 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.”

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