STATE OF NEW JERSEY v. ROBERT T. BICKEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT T. BICKEL,

Defendant-Appellant.

___________________________________

April 4, 2014

Argued March 19, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 24-12-R.

Peter M. O'Mara argued the cause for appellant.

John R. Ascione, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert T. Bickel appeals his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Bickel was stopped by Bridgewater Township Police Officer Jason Albanese at approximately 1:00 a.m. on June 17, 2011, for failure to maintain his driving lane. N.J.S.A. 39:4-88(b). Based upon his interpretation of the roadside sobriety tests, Albanese arrested Bickel and took him to police headquarters, where an Alcotest was administered. The two Alcotest samples registered a blood alcohol level of 0.19 percent.

Bickel was tried in the Bridgewater Township municipal court on February 24, 2012, and found guilty of a per se violation of N.J.S.A. 39:4-50 based on the Alcotest evidence. Because of his two prior convictions, Bickel was sentenced to six months incarceration and revocation of his driving privileges for ten years, as well as the required fines and other penalties. Bickel appealed to the Law Division.

The trial de novo on the municipal court record took place on October 9. The Law Division judge issued a written decision on October 19, finding Bickel guilty and ordering imposition of the same sentence as had been imposed by the municipal court judge. This appeal followed.

II.

The only issue raised before us is Bickel's argument that the Alcotest results were inadmissible because there was insufficient proof from the State that Albanese fully complied with the requirement that there be a twenty-minute observation period prior to administration of the Alcotest. See State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Although Bickel appears to concede that Albanese observed him for twenty minutes prior to taking the first breath sample, he argues that the seven-minute gap between the end of the twenty-minute period and the administration of the first test was unexplained and vitiated Albanese's compliance with Chun.

Our role in an appeal such as this is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). In addition, "under the two-court rule," only "a very obvious and exceptional showing of error" will support setting aside "concurrent findings of facts and credibility determinations made by" the Law Division and the municipal court. State v. Locurto, 157 N.J. 463, 474 (1999). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

In order "to avoid overestimated [blood alcohol] readings due to residual effects of mouth alcohol," Chun requires a twenty-minute period of observation prior to administration of the Alcotest

to ensure that no alcohol has entered the person's mouth while [the subject] 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.

[194 N.J. at 79.]

The State must demonstrate compliance with the requirement that there be a twenty-minute period of observation by clear and convincing evidence. Id. at 92; cf. Romano v. Kimmelman, 96 N.J. 66, 90 (1984).

Albanese testified that he began the observation period at 1:31 a.m. and started the first test at 1:58 a.m., which is more than twenty minutes. He made sure there was nothing in Bickel's mouth, and observed no coughing, belching, or vomiting during the observation period. Once the twenty minutes had elapsed, Albanese began the testing process by entering the necessary information into the computer and then proceeded to take the first breath sample. He testified that he never left Bickel alone from the time he started the observation period until he completed the two tests. Both the municipal and Law Division judges found Albanese to be a credible witness.

Bickel's argument that something might have occurred to taint the test results during the seven-minute interval between the end of the twenty-minute period and the start of the first test is pure speculation and has no factual basis in the record. Bickel was under observation by Albanese during the entire time. As the Law Division held in State v. Filson, 409 N.J. Super. 246, 261 (Law Div. 2009), observation need not be solely visual and can include "aural or olfactory senses." SeeState v. Carrero, 428 N.J. Super.495, 513 (App. Div. 2012). There is no suggestion in the record that Bickel put anything in his mouth, coughed, belched, or threw up during that seven-minute period. Although the State clearly retains the burden of proof on the issue, we note that Bickel offered no testimony to suggest otherwise. Filson, supra, 409 N.J. Super.at 257; see also 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.").

Having reviewed the record before us in light of the applicable law, we are satisfied that the Law Division's decision to admit the Alcotest results into evidence is supported by sufficient credible evidence in the record and that the State met its burden to prove compliance with Chunby clear and convincing evidence. In addition, Bickel has failed to make the "very obvious and exceptional showing of error" required for a reversal under the two-court rule. Locurto, supra, 157 N.J. at 474.

Affirmed.