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In a comprehensive, written decision stemming from a municipal appeal, a Judge of the Superior Court, Law Division, has construed the 20-minute observation period that is required as a foundational proof for the admissibility of Alcotest blood-alcohol results. In the municipal appeal, captioned State v. Nagorniak, Judge Mitchel Ostrer, J.S.C., ruled that the requirement of a 20-minute observation period is not merely dicta in the Supreme Court's decision in State v. Chun, 194 N.J. 54 (2008), but rather is a foundational issue that must be proved by the State by clear and convincing evidence. The judge also went on to hold that although the Alcotest operator need not be the only person continuously observing the test subject, an observing police officer who is not a qualified operator must know what to look for and what specifically to observe about the test subject in order to meet the State's burden. Without such proofs, the Alcotest results are inadmissible. The Law Division's decision in State v. Nagorniak has not been approved for publication. Accordingly, its use is extremely limited and must be exercised within the limitations set forth by Rule 1:36-3.
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