March 2, 2015

A police department’s failure to immediately provide a drunken driving arrestee with the results of an Alcotest was not sufficient grounds to suppress the results, a New Jersey appeals court has ruled.

In a published ruling issued Feb. 27 in State v. Sorensen, a three-judge panel unanimously reversed a trial judge’s ruling that suppressed the Alcohol Influence Report (AIR) because the Alcotest operator failed to give a copy of the report to defendant Gale Sorensen.

While the appeals court urged law enforcement to follow the recommendations of both the New Jersey State Police’s Alcohol Drug Testing Unit (ADTU) and the state attorney general that defendants be given a copy of their AIR, it found no basis for suppressing the evidence of Sorensen’s blood-alcohol content (BAC) based on the fact that she was not immediately given a copy of the report at the police station.

The appeals court said the state legislature only expressly required that DWI defendants be given a copy of their Alcotest results on request.

“If the Legislature had intended that the police be required to give a copy to the persons tested at the police station, we see no reason why the Legislature would not have stated that requirement in N.J.S.A. 39:4-50.2, rather than only requiring the police to provide a copy upon request,” Judge George Leone wrote for the panel. He was joined by Judges Jack Sabatino and Marie Simonelli.

Sorensen was arrested for DWI in February 2013, according to the opinion. The arresting officer reported that he had observed Sorensen’s vehicle drifting between lanes without using a turn signal and smelled alcohol in the car when he pulled her over. The officer also said Sorensen’s eyes were bloodshot and watery, her eyelids were drooping and she failed several psychophysical sobriety tests.

At the police station, another officer gave Sorensen an Alcotest, which showed her BAC as 0.12 percent, the opinion said. While the operating officer gave a copy of the test results to one of his superiors, he did not provide a copy to Sorensen.

At a municipal court hearing, Sorensen sought to suppress the Alcotest results but the judge refused, according to the opinion. Sorensen entered a conditional guilty plea, reserving her right to appeal the admission of the Alcotest readings.

On appeal, Law Division Judge Mary Whipple of the Morris County Superior Court found Sorensen was “convicted under the observational standard” and imposed the required $250 fine and three-month license suspension, plus various fees and court costs, according to the opinion. But Whipple granted Sorensen’s motion to suppress the Alcotest results, finding that the police department’s failure to provide Sorensen with a copy of her results violated the state Supreme Court’s 2008 ruling in State v. Chun.

In Chun, the justices said an Alcotest “operator must retain a copy of the AIR and give a copy to the arrestee,” according to the opinion.

The state appealed Whipple’s ruling. In the meantime, Sorensen served her three-month license suspension and her driving privileges were restored, according to Leone.

On appeal, Leone said the Supreme Court’s comment in Chun that an Alcotest operator must give a copy of the AIR to the arrestee was “part of a technical discussion, not a legal discussion,” about the fact that the Alcotest machine is not user-dependent because it is able to provide an instant printout of an arrestee’s BAC results.

Leone noted that the Supreme Court made no mention of a requirement to give arrestees a copy of their Alcotest results anywhere else in the Chun opinion, including in the section titled “Requirements Prior to the Admissibility of Alcotest Evidence.”

Whipple had reasoned that the failure to provide Sorensen with the AIR violated Chun’s requirement that prosecutors show that the Alcotest device was in working order and had been inspected according to procedure; the operator was certified; and the test was administered according to official procedure.

But Leone said the timing of when a person receives an AIR “in no way affects the validity of the already-completed Alcotest, or the already recorded BAC,” Leone said.

Leone also disagreed with Whipple’s reasoning that failing to provide an arrestee with an AIR interferes with the arrestee’s right to obtain independent testing under N.J.S.A. 39:4-50.2(c).

“Defendant already had an incentive to obtain independent testing to show she was not driving with an elevated BAC,” Leone said. “She knew that her breath had been tested for BAC, and that she was being charged with drunk driving.”

Leone also said suppressing a defendant’s valid BAC results and eliminating or reducing the defendant’s license suspension would run counter to the legislature’s goal of keeping drunken drivers off the road.

Leone did, however, urge law enforcement to provide arrestees with their Alcotest results immediately, noting that doing so “may produce benefits in limited circumstances,” such as where the arrestee is so intoxicated they fail to understand they have the right to request a copy.

Sabatino penned a concurring opinion, saying he agreed that Whipple’s suppression ruling should be overturned but supported Whipple’s position “that immediate turnover of the AIR to an arrestee should be more than an aspirational goal” because alcohol dissipates quickly in the human body.

“An arrestee’s right to obtain an independent test to challenge the police’s AIR readings is essentially worthless if the arrestee does not act right away,” Sabatino said, but added that there was no actual prejudice in Sorensen’s case.

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