14-3-4669 State v. Filson , Law Div. — Mercer Cy. (Ostrer, J.S.C.) (21 pp.) In a DUI municipal appeal, the court held that before Alcotest results may be admitted into evidence, the state must prove, by clear and convincing evidence, that the defendant was observed for 20 minutes before taking the test. Eye-to-eye monitoring is not necessarily required, if the defendant is observed by sound and smell. Yet, if the observer leaves the room during the 20 minutes, observation must begin anew. What suffices as observation must be determined in view of the observation requirement’s purpose to assure that the suspect has not ingested or regurgitated substances that would confound the test results. [Decided Feb. 17, 2009.]
CRIMINAL LAW AND PROCEDURE — SEARCH AND SEIZURE
14-1-4648 State v. Marshall , Sup. Ct. (Wallace, J.) (50 pp., including dissent by Rivera-Soto, J.) The search warrant was issued in violation of the constitutional requirement to describe the place to be searched with particularity. Because police were authorized to determine if the conditions in the warrant were satisfied, the role of the neutral, detached magistrate was delegated to the police. The failure to comply with the particularity requirement and the failure to have a neutral and detached magistrate determine whether the conditions in the warrant were satisfied are constitutional violations, not technical insufficiencies justifying overlooking the deficiencies in the warrant. [Decided July 21, 2009.] [Digested at page 37.]
