STATE OF NEW JERSEY VS. HENRI CASTRO (17-023, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
DOCKET NO. A-1564-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HENRI CASTRO,
Defendant-Appellant.
_______________________________
Submitted January 7, 2019 – Decided January 16, 2019
Before Judges Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Municipal Appeal No.
17-023.
Peter M. O'Mara, attorney for appellant.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R. Juliano,
Assistant Prosecutor, of counsel and on the brief; Emily
M. M. Pirro, Legal Assistant, on the brief).
PER CURIAM
Defendant Henri Castro appeals the Law Division's November 14, 2017
order upholding the Holmdel Municipal Court's June 19, 2017 conviction of him
for driving while intoxicated, N.J.S.A. 39:4-50. We affirm.
The record reveals that on the evening of January 25, 2017, defendant
drove his car into a utility pole after striking three street signs. A Holmdel police
officer responded to the scene of the one-car accident. The officer smelled
alcohol on defendant's breath. Defendant admitted he had been drinking, but
claimed he had swerved his car off the road to avoid an oncoming vehicle. After
defendant failed field sobriety tests, he was arrested and taken to the Holmdel
police station.
The arresting officer obtained defendant's consent to submit a breath
sample. The officer administered the Alcotest to defendant. The test revealed
a .14% Blood Alcohol Content ("BAC"), well above the legal limit prescribed
by N.J.S.A. 39:4-50(a)(1)(ii). Defendant was then charged with a first-time
DWI offense.
At the municipal court trial, the arresting officer described his
observations of defendant at the accident scene, the field sobriety testing,
defendant's arrest, and the Alcotest procedures and results. Defendant presented
testimony from an expert who criticized the police's field sobriety testing
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procedures and the breath testing methods. Upon considering the evidence, the
municipal court judge concluded the Alcotest results were admissible despite
the defense expert's criticisms, and that defendant was guilty of a per se DWI in
violation of N.J.S.A. 39:4-50(a)(1)(ii). The judge imposed a seven-month
suspension of defendant's driving privileges, plus applicable fines and costs.
The judge granted defendant's request to stay his sentence pending appeal on de
novo review, the Law Division upheld the municipal court's determination, and
continued the stay pending appeal to this court.
The sole issue defendant raises on appeal is the same one he
unsuccessfully argued to the Law Division. He contends that the Alcotest
reading should be suppressed because there is allegedly insufficient proof that
the arresting officer observed him for twenty continuous minutes before
administering the Alcotest, as is required by State v. Chun, 194 N.J. 54, 79
(2008), and other case law. We reject that contention and affirm defendant's
conviction substantially based on the well-reasoned analysis in Judge Scully's
October 27, 2017 oral opinion. We add only a few amplifying comments.
The twenty-minute observation period is required before an Alcotest
operator collects a breath sample from a driver "to avoid overestimated readings
due to residual effects of mouth alcohol." Ibid. The observation period assures
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that "no alcohol has entered the person's mouth while he or she is awaiting the
start of the testing sequence." Ibid. If the suspect has swallowed anything,
regurgitated, chewed gum, or chewed tobacco while awaiting the test, the
twenty-minute observation period must be restarted. Ibid. The State must
present proof that the Alcotest operator actually observed the defendant during
the observation period. State v. Filson, 409 N.J. Super. 246, 256 (Law Div.
2009). "This can be accomplished through the testimony of any competent
witness who can so attest." State v. Ugrovics, 410 N.J. Super. 482, 490 (App.
Div. 2009).
As Judge Scully recognized, there is ample evidence substantiating that
the required twenty-minute observation period was observed in this case. The
arresting officer, who the municipal judge found to be "honest" and "truthful,"
testified that he sat directly in front of defendant continuously during the
observation period. The officer timed the twenty-minute period with his
wristwatch. Although the officer did not record the actual start and end times
of the observation period, the law does not require such documentation. We
acknowledge that it might be better practice for those two times to be
documented, but, as stated in Ugrovics, compliance with the twenty-minute
observation period may be established through testimony. Here, such credible
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testimony was presented at the trial. On appeal, we owe deference to the
municipal judge's credibility and factual findings. State v. Locurto, 157 N.J.
463, 471 (1999).
In sum, the inculpatory evidence of the .14 BAC reading 1 provided
sufficient proof of defendant's guilt. The conviction is upheld, and the stay of
sentence is vacated effective twenty days from the date of this opinion.
Defendant shall appear before the municipal court within twenty days to
surrender his license and to remit any outstanding fines and costs.
Affirmed.
1
Because the Alcotest machine used in this case in January 2017 was calibrated
in the past by State Police Sergeant Marc W. Dennis, whose false reports were
found unreliable in State v. Cassidy, ___ N.J. ___, ___ (2018) (slip op. at 19),
we requested the State to submit a supplemental brief addressing that concern.
The State's December 7, 2018 supplemental brief dispels any concern about
Sergeant Dennis's earlier calibrations. The brief and its attachments reveal that
the Alcotest machine in this case was recalibrated by a different state trooper in
November 2016, at least three years after Sergeant Dennis's prior calibrations ,
and about three months before the January 2017 testing of defendant. Defendant
does not refute these facts.
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