                                NOT FOR PUBLICATION WITHOUT THE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-4462-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL J. O'NEILL,

     Defendant-Appellant.
____________________________

                    Argued August 13, 2019 – Decided August 26, 2019

                    Before Judges Sumners and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Gloucester County, Municipal Appeal No.
                    27-17.

                    Stephen M. Lukach, III argued the cause for appellant.

                    Dana R. Anton, Senior Assistant Prosecutor, argued the
                    cause for respondent (Charles A. Fiore, Gloucester
                    County Prosecutor, attorney; Dana R. Anton, on the
                    brief).

PER CURIAM
      Defendant Michael J. O'Neill appeals from his de novo conviction in the

Law Division of driving while intoxicated (DWI), N.J.S.A. 39:4-50,1 and raises

the following arguments:

            POINT I

            DEFENDANT SHOULD BE ACQUITTED OF THE
            OBSERVATIONAL PRONG OF THE DWI
            STATUTE BECAUSE THE LAW DIVISION
            INAPPROPRIATELY CONSIDERED HGN TO
            PROVE INTOXICATION AT THE DE NOVO TRIAL
            AND FAILED TO ALLOW DR. GOOBERMAN TO
            TESTIFY AS TO THE PIN IN DEFENDANT'S
            ANKLE      WHILE       INAPPROPRIATELY
            DISCOUNTING OTHER DEFENSE EXPERT
            TESTIMONY.

            POINT II

            [THE] LAW DIVISION ERRED IN FAILING TO
            EXCLUDE THE ALCOTEST RESULTS BECAUSE
            THE STATE FAILED TO SATISFY THE TWENTY-
            MINUTE OBSERVATION REQUIREMENT DUE TO
            THE STATE'S RELIANCE ON INADMISSIBLE
            HEARSAY AND INSUFFICIENT TESTIMONY AS
            TO THE CORRECT TIME PERIOD. THUS, THE
            ALCOTEST READINGS SHOULD BE EXCLUDED
            AND INSUFFICIENT EVIDENCE OF THE PER SE
            VIOLATION EXISTS IN THE RECORD.



1
  In his merits brief, defendant does not challenge his concomitant convictions
for failure to maintain lane, N.J.S.A. 39:4-88 and failure to stop, N.J.S.A. 39:4-
81. As such, we deem any possible challenge to those convictions waived.
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
                                                                          A-4462-17T3
                                        2
            POINT III

            THE LAW DIVISION'S APPARENT AGREEMENT
            WITH THE MUNICIPAL JUDGE IN THAT THE
            RULES OF EVIDENCE ARE RELAXED IN A DWI
            TRIAL WAS ERRONEOUS. THUS, THIS COURT
            SHOULD REVERSE THE CONVICTION ON THE
            PER SE AND OBSERVATIONS PRONGS FOR THIS
            REASON ALONE.

We agree the HGN test should not have been considered in determining if the

State proved the DWI charge and that the State failed to prove by competent

evidence the twenty-minute observation requirement was fulfilled. As such we

reverse and remand.

      In our limited scope of review following the trial de novo in the Law

Division, we determine "whether the findings made could reasonably have been

reached on sufficient credible evidence present in the record." State v. Locurto,

157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

Our review of legal determinations, however, is plenary. See State v. Handy,

206 N.J. 39, 45 (2011).

      We first determine defendant's contention the Law Division erred by

agreeing with the municipal court judge's assertion that the Rules of Evidence

are relaxed in municipal court is without sufficient merit to warrant discussion

in this opinion. R. 2:11-3(e)(2). The evidentiary rulings by the municipal court


                                                                         A-4462-17T3
                                       3
judge do not control this case. In an appeal from a de novo hearing on the record,

we "consider only the action of the Law Division and not that of the municipal

court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). In making

her determination, the Law Division judge did not rule the Rules of Evidence

were relaxed, as did the municipal court judge in the context of her

determination of defendant's objection relating to a leading question.

      Turning to the proofs related to the Alcotest results, our Supreme Court in

State v. Chun, 194 N.J. 54, 140 (2008), noted the Alcotest is not subject to

operator influences and observed one of the few tasks required of an Alcotest

operator is to

            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.

            [id. at 79.]




                                                                          A-4462-17T3
                                        4
      The    State,   in   compliance     with   the   Court's    prescription    that

"[n]otwithstanding this reduced role to be played by the operator as relates to

the ultimate BAC [breath alcohol concentration] results reported . . . he or she

[is required to] be made available for cross-examination [as] an important

constitutional safeguard," id. at 140, produced the officer it contends made the

twenty-minute observation in order to meet its burden to substantiate that

"during the twenty-minute period immediately preceding the administration of

the test, the test subject did not ingest, regurgitate or place anything in his or her

mouth that may compromise the reliability of the test results," State v. Ugrovics,

410 N.J. Super. 482, 489-90 (App. Div. 2009).

      The officer testified simply on direct examination: "I observed him for

[twenty] minutes to make sure he was not burping, vomiting, not putting

anything in his mouth. I made sure there was nothing in his mouth prior to the

start of [twenty] minutes." On cross-examination, however, defense counsel

elicited the basis for the officer's timing of the twenty-minute period:

             Q. All right. And you said you did the [twenty]-minute
             observation period, correct?

             A. Correct.

             Q. But you didn't time it yourself, did you?



                                                                              A-4462-17T3
                                          5
           A.      No.     We have our Gloucester County
           Communications Dispatch, we have them start the
           timer through the radio, and then – through our
           communications – and once their timer's up for the
           [twenty] minutes as per the CAD [2] generator on our
           report systems, it shows that the [twenty] minutes starts
           and then [twenty] minutes later it documents when the
           timing ends.

           Q. Do they radio you back and say the [twenty] minutes
           is done?

           A. Yes.

           Q. Okay. So you never observed the [twenty]-minute
           period. Someone else at dispatch did?

           A. Yes.

           Q. Okay. So that you don't know how much time that
           allows, correct?

           A. I imagine it would be [twenty] minutes because it
           was common practice and it's documented in their
           report in the CADing system.

           Q. But you don't know for sure because you weren't the
           one that actually observed the [twenty] minutes. It was
           someone at dispatch who then radioed back and said it's
           done.

           A. We observed the [twenty] minutes. We have them
           do it to document the time so there's not a discrepancy
           of whether my phone was off by a couple minutes, et
           cetera.

2
 CAD is an abbreviation of computer aided dispatch. See State v. Chisum, 236
N.J. 530, 538 (2019).
                                                                       A-4462-17T3
                                      6
            Q. Okay.     So someone else observed the [twenty]
            minutes.

            A. That is correct.

On redirect examination, the officer confirmed:

            Yeah, so we, when we first get to the station we
            determine that there's nothing in his mouth and he's not
            burping. We have Gloucester County Communications
            start the [twenty]-minute timer on their end. And once
            the [twenty] minutes is up, they contact us allowing us
            to know the [twenty] minutes observation is over, or the
            [twenty]-minute period is over. And then that is when
            [the Alcotest operator] took him, after the [twenty]-
            minute period was over.

      We glean from the record that evidence related to the software-safeguard

that prohibits operation of the Alcotest "device before the passage of twenty

minutes from the time entered as the time of the arrest," Chun, 194 N.J. at 79,

was not introduced at trial. Thus, the only proof that twenty minutes had elapsed

was the statement from the dispatcher that it had.

      We need not address whether the time from the CAD device was a hearsay

statement or if the dispatcher's relay of that time was admissible, as the State

contends, as a present sense impression under Rule 803(c)(1), N.J.R.E.

803(a)(1), because the dispatcher's statement – not the actual CAD-time itself –

was testimonial requiring the production of the dispatcher for cross-examination

even if the CAD-time was an admissible statement. See State v. Sweet, 195 N.J.

                                                                         A-4462-17T3
                                       7
357, 372 (2008) (holding "[t]he threshold inquiry Crawford requires is whether

the challenged hearsay statement is testimonial"); see also Crawford v.

Washington, 541 U.S. 36, 51-52, 59-61 (2004); Chun, 194 N.J. at 138-39.

      Our Supreme Court interpreted Crawford as "barring the 'admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for cross -

examination.'" State v. Buda, 195 N.J. 278, 304 (2008) (quoting Crawford, 541

U.S. at 53-54).    The Court recognized that "the Crawford Court eschewed

providing a comprehensive definition of the term 'testimonial,'" id. at 300, but

stated "[t]he text of the Confrontation Clause . . . applies to 'witnesses' against

the accused – in other words, those who 'bear testimony,'" ibid. (alterations in

original) (quoting Crawford, 541 U.S. at 51); see also Sweet, 195 N.J. at 372.

      Although the CAD time was arguably generated by the CAD device

without human input or potential interference, and without targeted evidentiary

use in a particular criminal case, thus rendering it nontestimonial, the time

relayed by the dispatcher was a statement made for the purpose of meeting the

State's obligation to prove by clear and convincing evidence that defendant was

observed for twenty minutes prior to the administration of the Alcotest.

Moreover, the relay by the dispatcher transformed what may have been a reliable


                                                                           A-4462-17T3
                                        8
machine-reading, see Chun, 194 N.J. at 147 (holding an Alcotest-generated

Alcohol Influence Report (AIR) of data from breath samples, which cannot be

influenced by the operator, was nontestimonial 3), into evidence that is subject to

manipulation, mistake or misconception. The Confrontation Clause requires

that that testimonial evidence be subject to cross-examination because the

dispatcher was a witness who bore testimony against defendant. Buda, 195 N.J.

at 300. Our determination is not altered because the observing officer's direct

testimony did not reveal the source of timing for the twenty-minute period. The

Confrontation Clause cannot be skirted because the testimonial source of the

officer's information was revealed through cross-examination after the State

chose not to elicit that evidence.

      We observe the Law Division judge based his conclusion that the State

proved the twenty-minute observation requirement on the observing officer's

testimony, found credible by the municipal court judge, that "he thought he

waited [twenty] minutes." The Law Division judge found that testimony "to be



3
   Although the AIR was ruled nontestimonial, the Court still required the
Alcotest operator be made available for cross-examination and "the routine
production in discovery of all of the foundational documents that might reveal
some possible flaw in the operation of the particular device and . . . the core
foundational documents that establish the good working order of the device be
admitted into evidence." Chun, 194 N.J. at 148.
                                                                           A-4462-17T3
                                        9
sufficient basis, coupled with that [twenty] minutes and the other three to five

minutes from the other [Alcotest operator] officer" to prove the twenty-minute

observation period. The judge also found "it took three to five minutes" after

the Alcotest operator took custody of defendant from the observing officer to

perform the preliminary setup of the Alcotest and that the operator "observed

the defendant during that period of time and that the defendant was not burping,

vomiting nor putting anything in his mouth during that period of time." The

evidence does not support that finding; the operator testified only that he did not

observe defendant put anything in his mouth.          On cross-examination, the

operator admitted:

            Q. You didn't check [defendant's] oral cavity for any
            kind of foreign substances?

            A. I did not.

            Q. You just tested him.

            A. Correct.

      We also find no evidential basis for the Law Division judge's finding that

"according to the [observing] officer he thought that he had waited [twenty]

minutes." The evidence reveals that the officer admitted he did not time the

period himself and did not offer his opinion or feeling that twenty minutes had

elapsed. The officer relied solely on the time reported by the dispatcher.

                                                                           A-4462-17T3
                                       10
      We will only disturb a trial judge's factual findings if they are unsupported

by sufficient credible evidence in the record. Locurto, 157 N.J. at 471. The

only evidence that the twenty-minute observation requirement was met was

based on the dispatcher's timing and report thereof – and the dispatcher did not

testify. Inasmuch as the State failed to prove that defendant did not meet its

burden regarding the twenty-minute observation period, the Alcotest result

cannot be used as evidence of defendant's DWI.

      Turning to the observational proof of defendant's DWI, we apprehend that

an officer's subjective observation of a defendant is a sufficient ground to sustain

a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div.

2003) (sustaining DWI conviction based on observations of defendant's

bloodshot eyes, hostility, and strong odor of alcohol); see also State v. Cleverley,

348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on

officer's observation of the defendant's driving without headlights, inability to

perform field sobriety tests, combativeness, swaying, and detection of odor of

alcohol on the defendant's breath); Oliveri, 336 N.J. Super. at 251-52

(sustaining DWI conviction based on officer's observations of watery eyes,

slurred and slow speech, staggering, inability to perform field sobriety tests, and

defendant's admission to drinking alcohol earlier in the day).


                                                                            A-4462-17T3
                                        11
      The Law Division judge correctly observed that the horizontal gaze

nystagmus (HGN) test "has not been found to be scientifically reliable as a sole

basis" to find defendant guilty of DWI but concluded "there are other factors

that the court had at its disposal in order to consider not only the driving but the

failure of the field sobriety test, the odor [of alcohol], and so there are other

issues to be considered in addition to the HGN [test]. So they look at the totality

of the circumstances as a basis." (emphasis added). Later, the court opined:

            The HGN [test] is admissible as long as that is not the
            sole basis of finding that the person was under the
            influence. There's certainly under the totality of the
            circumstances enough evidence in the record to find the
            defendant guilty even considering the HGN [test]. So
            it would be admissible as other evidence within the
            record to conclude by a totality of the circumstances.

      It has long been held that, while the HGN test can be used to establish

probable cause for a DWI arrest, it lacks sufficient scientific reliability to

warrant admission as evidence of a defendant's guilt of a DWI offense. State v.

Doriguzzi, 334 N.J. Super. 530, 546-47 (App. Div. 2000). Obviously the Law

Division judge considered the HGN test as part of the "totality of the

circumstances" in finding defendant guilty. We cannot, especially in light of

our exclusion of the Alcotest results, deem the admission of the HGN test as

harmless error. Ibid. We are therefore constrained to reverse and remand this


                                                                            A-4462-17T3
                                        12
matter to the Law Division for a trial de novo on the record without

consideration of the HGN test.

      We determine the other issues raised by defendant, including the

preclusion of his expert witness from testifying about the impact the pin in

defendant's ankle 4 had on his field sobriety test performance, and the trial court's

rejection of the expert's testimony regarding gastroesophageal reflux disease

(GERD),5 to be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2). We add only that at the conclusion of the defense's voir dire,

the witness was proffered only "as an expert in the effects of drugs an[d] alcohol

on the [human] body," not as a medical expert; defendant never submitted the

expert's curriculum vitae to the State. He attempted to expand the witness's area

of expertise to the medical field after the State completed its voir dire and

objected to the expert. The only testimony the witness gave to support his

qualification as a medical expert was on direct examination, during the 2017



4
  We note the officer testified that he believed defendant said he had a screw in
his right ankle.
5
  Defendant did not advance any argument regarding the Law Division judge's
conclusion that there is "no evidence in the record that defendant was suffering
from GERD at the time of the Alcotest" in his merits brief. See Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (stating that any
issues not briefed on appeal are waived).
                                                                             A-4462-17T3
                                        13
trial in municipal court, when he stated he was a practicing physician with a

specialty in addiction medicine and that he completed a residency in internal

medicine and "did primary care for a number of years before [he] specialized in

addiction medicine," which became his sole practice area in 1995.

      Reviewing the judge's ruling for clear abuse of discretion, State v.

Chatman, 156 N.J. Super. 35, 40 (App. Div. 1978), under the proofs presented,

we do not perceive that the judge abused her discretion in precluding the

witness's testimony about the impact the hardware in defendant's ankle had on

his field sobriety test performance. "A trial judge is vested with wide discretion

in determining the competency of expert witnesses." Ibid. Moreover, even if

error, the preclusion did not result in a manifest injustice in light of defendant's

self-assessment of his post-surgery abilities. See State v. J.D., 211 N.J. 344,

354 (2012). The observing officer, who was also the arresting officer, testified

that defendant responded to the officer's question about any medical conditions

that would affect his ability to perform a balance test by advising "that he did

have a screw in his right ankle I believe it was, and he did advise me that it

would not affect his balance and that he was okay to continue with the test."




                                                                            A-4462-17T3
                                        14
      Reversed and remanded to the Law Division to determine if the

observational evidence alone, other than the HGN test, was sufficient to prove

the DWI offense beyond a reasonable doubt. We do not retain jurisdiction.




                                                                      A-4462-17T3
                                     15
