The Law Offices of Edward Harrington Heyburn, PC

  The New Jersey Supreme Court approved the publication of Judge Osterer’s opinion requiring that the State proved that the police conducted a 20 minute observation period prior to administering the Alcotest.  Although the Appellate Division has not addressed the issue, Judge Osterer’s opinion now stands for the rule of law.  Judge Osterer noted that the New Jersey Supreme Court addressed this issue in its holding in  State v. Chunn, et al.:

“Operators 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 opinion also suggest that the police must give an additional 20 minute observation period in between breath test.  Interestingly, this may stretch out the time fram in which a valid test may be obtained and can provide some time for a driver’s blood alcohol level to secrease while in custody.

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