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

NOT FOR PUBLICATION WITHOUT THE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.
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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 reading1 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.