In State v. Koch, No. A-0602-10 (App. Div. Sept. 26, 2011), the defendant was convicted in municipal court of underage consumption of alcohol.  The defendant was fined $250 and assessed $33 in court costs.  The defendant appealed to the Law Division, which affirmed following a trial de novo.  The defendant then appealed that judgment, and the Appellate Division reversed on several grounds.

On May 8, 2009, the defendant, an eighteen-year-old high school student, went to a house party with his girlfriend, Ashley, who was nineteen.  A neighbor complained to the police that partygoers were smoking marijuana and urinating on his lawn.  There was no dispute that alcohol was being consumed by partygoers in and around the home. 

When a police officer responded to the scene in a marked car, about twenty people ran into the woods but the officer did not pursue them.  Instead, he detained the forty to fifty party attendees who did not flee.  He lined them up, told them they could not leave, and then smelled the breath of each one to determine if they had consumed alcohol.  The officer did not provide Miranda warnings to any of the partygoers. According to the officer, just before he sniffed the defendant’s breath he blurted out, “I only had one.”  The officer recalled that the defendant’s breath smelled of alcohol.  Approximately twenty minutes later, the officer told the group that they were free to leave but had to go with a “sober” driver.  No summonses were issued at that time.

According to the officer, about ninety minutes later he saw a vehicle, later determined to be registered to the defendant’s girlfriend, stationary on the side of the road.  The officer testified that the defendant, his girlfriend, and another young woman were in the car but that the defendant was not the driver.

Ashley testified at trial that the defendant did not consume any alcoholic beverages and did not tell the officer that he “only had one.”  She testified that after they left the party, the officer pulled over her car while the defendant was driving.  Specifically, she testified that the vehicle was moving when the officer activated the overhead lights to pull the vehicle.  Similarly, the defendant testified that he did not drink any alcoholic beverage and that he was driving his girlfriend’s vehicle when it was pulled over.  There was no dispute that the motor vehicle stop ended with no charges being issued.

At trial, the defendant attempted to introduce into evidence a videotape made by a camera in the police car.  Although the evidence was excluded, the Appellate Division reviewed it because it was part of the record on appeal.  The videotape showed that the vehicle was being driven by the defendant and that it was moving for a considerable distance before the officer activated the overhead lights and pulled the car over.

Four days after the party and the vehicle stop, the officer issued an underage drinking summons to the defendant, which he only found out about after he was suspended by his principal from school activities.

In reversing the defendant’s conviction, the Appellate Division first focused on the excluded videotape.  The court determined that the trial court erred in excluding that evidence because it “directly impeached” the officer’s testimony and raised credibility doubts about the officer’s identification of the defendant as one of the partygoers who had consumed alcohol, as well as his testimony that the vehicle was stationary when he first saw it and that the defendant was not the driver.

Next, the Appellate Division ruled that the defendant’s Miranda rights were violated.  Specifically, the court pointed out that the partygoers were detained at the scene and that the officer’s sniffing of their breath was in a custodial setting.  Thus, the Appellate Division found that the officer’s testimony that the defendant had stated that he had consumed an alcoholic drink should have been suppressed.

Turning to the officer’s sniff test, the Appellate Division declared that even if the officer’s testimony that he smelled alcohol on the defendant’s breath was to be believed, it still was “insufficient as a matter of law to sustain a conviction.”  The court explained that “[t]here were many young people at this party.  Alcohol was being consumed by many of them.  Therefore, the smell of alcohol in the area of the party was a given.  The sniff test without excluding other sources, was not sufficient to establish that [defendant] was drinking.”  Therefore, the Appellate Division reversed the defendant’s conviction.