NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3401-18T3
STATE OF NEW JERSEY,
DANIEL L. WATKINS,
Argued December 12, 2019 – Decided January 8, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 18-07.
Timothy John Dey argued the cause for appellant.
Cheryl L. Hammel, Assistant Prosecutor, argued the
cause for respondent (Bradley D. Billhimer, Ocean
County Prosecutor, attorney; Samuel J. Marzarella,
Chief Appellate Attorney, of counsel; Cheryl L.
Hammel, on the brief).
Defendant Daniel L. Watkins appeals from the March 29, 2019 order of
the Law Division convicting him after a trial de novo of driving while
intoxicated (DWI), N.J.S.A. 39:4-50, his third such offense. We affirm.
The following facts are derived from the record. At approximately 1:30
a.m. on August 13, 2017, New Jersey State Trooper Charles W. Olsen
investigated an occupied vehicle parked on the shoulder of a roadway in
Eagleswood Township. The details of Olsen's interaction with defendant, who
was in the driver's seat, and defendant's passenger at the scene of the stop are
not material to the issues raised in this appeal. It will suffice to note that based
on an odor of alcohol, and defendant's slurred speech, bloodshot and watery
eyes, nearly inaudible communications, and admissions, Olsen determined he
had probable cause to charge defendant with DWI and arrested him. 1 Olsen did
not perform field sobriety tests on defendant.
Trooper Christopher MacCutcheon arrived on scene to assist after the
arrest. Olsen transported defendant to nearby barracks as MacCutcheon
remained on scene for removal of defendant's impounded vehicle.
Based on his observation of defendant's conduct with the unconscious
passenger, Olsen also arrested defendant for sexual assault, N.J.S.A. 2C:14- -2.
That charge is not before the court.
Olsen arrived with defendant at the barracks at 2:04 a.m. After examining
defendant's mouth to confirm it contained no objects, he placed defendant in a
holding cell, the walls and door of which were metal bars. After securing his
weapon and other items, Olsen sat about five feet outside the holding cell door
and commenced observing defendant to "make sure [he] does[ not] drink
anything, does[ not] throw up in his mouth, spit or anything like that." While
observing defendant, Olsen completed, with defendant's assistance, a drunk
driving questionnaire. The officer marked the questionnaire, which included
defendant's admission he had six beers at a Seaside Heights bar in the hours
preceding the stop, as completed at 2:30 a.m.
MacCutcheon arrived at the barracks at approximately 2:15 a.m. He was
to administer an Alcotest and commenced observation of defendant in the
holding cell as soon as he secured his weapon and other items.
At 2:27 a.m., MacCutcheon removed defendant from the holding cell,
walked behind him a few feet to another room, and administered an Alcotest.
The Alcotest machine displayed an ambient air check error, indicating detection
of alcohol in the room air. The error code, which was issued at 2:30 a.m.,
invalidated the test results.
MacCutcheon returned defendant to the holding cell, walking behind him
for a few feet. The officer, standing outside the holding cell, continued to
At 2:42 a.m., MacCutcheon removed defendant from the holding cell for
a second time and returned him to the testing room, again walking behind him.
The officer administered a second Alcotest, taking a breath sample at 2:44 a.m.
MacCutcheon never lost sight of defendant from the start of his observation
shortly after 2:15 a.m. to the time he administered the second Alcotest at 2:44
a.m. The test reported a blood alcohol level of 0.22%, almost three times the
statutory limit for DWI.
After administration of the Alcotest, Olsen issued summonses charging
defendant with DWI and three other motor vehicle code offenses.
At trial, the municipal court judge heard the testimony of both Olsen and
MacCutcheon. In addition, defendant presented an expert witness. The expert
initially opined, based on the pretrial discovery, that Olsen did not maintain a
continuous twenty-minute observation of defendant. However, after hearing the
testimony of the two officers, the expert explained,
[w]ell, obviously, based upon their testimony, that
opinion is changed because now there's a situation
where there was, if you will, a handoff, with two
Troopers continuing the observation period.
There's no problem with the handoff. I mean . . . breath
test operators in New Jersey are trained that that's a
viable way of doing it.
But, the expert testified he had "concerns" that the officers may not have clearly
communicated the handoff and that MacCutcheon walked behind defendant
when moving him from the holding cell to the testing room and back, obstructing
his view of defendant's mouth. As a result, the expert opined that the twenty-
minute observation period was not conducted correctly.
With respect to whether Olsen's completion of the questionnaire while
observing defendant invalidated the observation period, the expert opined as
[C]learly, the operator, even, or the officer is allowed
to multi-task. [It is] not a direct staring contest at the
defendant for that [twenty]-minute period of time. If
that were the case, an operator, if he was alone, would
never be able to administer a breath test because they
could[ not] turn the machine on, they could[ not] enter
the data utilizing the keyboard. . . . They[ are] allowed
to do other things, but they have to at least attempt to
keep the defendant within their peripheral vision and
utilize their senses to ensure that these things that they[
are] trained to look for do[ not] occur. I can[not] say
because someone's reading an implied consent form or
because they[ are] filling out a questionnaire, they[ are]
not keeping a continuous and uninterrupted observation
of the defendant.
The municipal court judge found credible Olsen's testimony that he
observed defendant at the barracks beginning at approximately 2:06 a.m. He
found that Olsen was sitting immediately next to the holding cell with "nothing
obstructing the view or the smell or the hearing" of the officer. In addition, the
judge found credible MacCutcheon's testimony he observed defendant
continuously at the barracks beginning at approximately 2:15 a.m. The court
found MacCutcheon was approximately five feet from defendant and "could
detect with his senses any kind of belching or anything of that nature[,]" which
The judge rejected defendant's argument the observation period was
broken when MacCutcheon walked defendant from the holding cell to the testing
room. The judge observed "to move somebody from five feet is about two steps
in a matter of seconds" and "even though he was in front of him, it does[ not]
mean that that is a break in the [twenty]-minute observation . . . ."
The court concluded, "[t]here was observation by Trooper Olsen and/or
Trooper MacCutcheon from 2:04 until . . . 2:44. So no question as to the
[twenty]-minute observation." Given that defendant did not otherwise contest
the validity of the test results or deny he was operating the vehicle, the judge
stated he had "no problem finding beyond a reasonable doubt, based on those
[test] readings, that [defendant] was guilty of driving under the infl uence."
The court sentenced defendant to a 180-day term of incarceration, with
credit for forty-eight days he spent in in-patient alcohol abuse treatment, and a
ten-year suspension of his driver's license, followed by a three-year period with
an ignition interlock device. The remaining motor vehicle code charges were
dismissed. The municipal court stayed defendant's sentence pending his appeal
to the Law Division.
Following a trial de novo in the Law Division, Judge Michael T. Collins
convicted defendant of DWI. After finding the testimony of the officers to be
credible, Judge Collins concluded
regardless of whether I incorporate Olsen into this, or
whether I rely strictly on M[a]cCutche[o]n's
involvement, I do find that there has been observation
within the [twenty-]minute requirement . . . . The
distance between the officers, who I find to be trained,
was such that they would have been in a position
geographically to observe and/or sense anything that
would have tainted the results. And M[a]cCutche[o]n's
testimony was that that was not the case.
So I am going to find that the results of the Alcotest
were reliable. Obviously that would be the second test
that was run at 2:42. And I[ am] going to uphold the
lower [c]ourt's conviction.
On March 29, 2019, Judge Collins entered an order upholding defendant's
conviction and staying his sentence pending appeal to this court.
This appeal followed. Defendant makes the following arguments for our
THE POLICE DID NOT OBSERVE DEFENDANT
FOR THE REQUIRED TWENTY MINUTES PRIOR
TO ADMINISTRATION OF THE ALCOTEST
RENDERING THE READING NULL AND VOID.
SANS SFST'S [SIC] DANIEL WATKINS CANNOT
BE CONVICTED OF DRIVING WHILE
INTOXICATED AS PER STATE V. CHUN.
ELUSION OF RECLUSION.
B. THE TWENTY-MINUTE OBSERVATION
PERIOD COULD NOT HAVE BEEN ADHERED TO
HERE BY THE OFFICERS' OWN TESTIMONY.
C. THE LAW DIVISION EQUATED MERE
GEOGRAPHICAL PROXIMITY WITH THE
On appeal from a municipal court to the Law Division, the review is de
novo on the record. R. 3:23-8(a)(2). The Law Division judge must make
independent findings of fact and conclusions of law but defers to the municipal
court's credibility findings. State v. Robertson, 228 N.J. 138, 147 (2017).
We do not, however, independently assess the evidence. State v. Locurto,
157 N.J. 463, 471-72 (1999). Our "standard of review of a de novo verdict after
a municipal court trial is to determine whether the findings made could
reasonably have been reached on sufficient credible evidence present in the
record, considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8
(App. Div. 2005) (internal quotations marks and citation omitted).
The rule of deference is more compelling where, as here, the municipal
and Law Division judges made concurrent findings. Locurto, 157 N.J. at 474.
"Under the two-court rule, appellate courts ordinarily should not undertake to
alter concurrent findings of facts and credibility determinations made by two
lower courts absent a very obvious and exceptional showing of error." Ibid.
"Therefore, appellate review of the factual and credibility findings of the
municipal court and the Law Division 'is exceedingly narrow.'" State v. Reece,
222 N.J. 154, 167 (2015) (quoting Locurto, 157 N.J. at 470). But, "[a] trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
In State v. Chun, 194 N.J. 54, 79 (2008), the Court explained, with respect
[o]perators 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.
The twenty-minute observation period must be established by clear and
convincing evidence, but need not be conducted by the officer who administered
the Alcotest. State v. Ugrovics, 410 N.J. Super. 482, 489-90 (App. Div. 2009).
[w]hat 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.
[State v. Filson, 409 N.J. Super. 246, 261 (Law Div.
Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the March 29, 2019 order of the Law
Division. The record contains ample support for the trial court's findings of fact
and conclusions of law regarding the officers' observation of defendant for
twenty minutes prior to administration of the Alcotest resulting in defendant's
conviction. We see no basis for disturbing the conclusions of the two judges
who reviewed the evidence and found the officers credibly testified that either
or both of them were sufficiently close to defendant in the twenty minutes
preceding administration of the 2:44 a.m. Alcotest to detect any event that could
confound the test results. To the extent we have not specifically addressed any
of defendant's remaining arguments, we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. The stay of defendant's sentence is vacated.