STATE OF NEW JERSEY v. DANIEL L. WATKINS

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NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3401-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL L. WATKINS,

     Defendant-Appellant.
_________________________

                    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).

PER CURIAM
      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.

                                         I.

      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.


1
   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.
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      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.




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      MacCutcheon returned defendant to the holding cell, walking behind him

for a few feet. The officer, standing outside the holding cell, continued to

monitor defendant.

      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.

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                  ....

            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

follows:

            [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.

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      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

never occurred.

      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



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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.



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      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

consideration:

            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.

            A.  SPOLIATION/TAMPERING/TAILORING/
            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
            "ATTENTIVE" REQUIREMENT.

                                       II.

      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).



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      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

to Alcotests,


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               [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).

In addition,

               [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.
               2009).]

      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

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                                         10
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.




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