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State v. Nemesh

Decided: October 31, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM K. NEMESH, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Pressler, O'Brien and Scalera. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

[228 NJSuper Page 601] Defendant appeals from his convictions of operating a motor vehicle while under the influence of intoxicating liquor (DWI) (N.J.S.A. 39:4-50(a)(3)), and operating a motor vehicle during a period when his New Jersey license was suspended (N.J.S.A. 39:3-40). On the DWI conviction, he was sentenced as a third offender to perform 90 days of community service and to serve 90 days in the county jail or in an in-patient rehabilitation program, fined $1,000, received a $100 surcharge, ordered to pay a $40 fee to the Alcohol Rehabilitation and Enforcement Fund, and his license was suspended for ten years. For driving while his New Jersey license was suspended, he was sentenced to serve 45 days in the county jail*fn1

concurrent with that imposed for the DWI offense, was fined $500, and his license was suspended for one year consecutive to the suspension for the DWI conviction. We affirm.

At approximately 7:00 p.m. on May 16, 1986, a car driven by defendant collided with a car driven by Lynford Nehil. As a result, both Mr. Nehil and his passenger suffered injury and were removed by ambulance. Defendant had come from a nearby restaurant. He testified that he had arrived at the restaurant at about 5:30 p.m. and had had a leisurely beer. When his table for dinner was ready, he had had a vodka and tonic. At approximately 6:50 p.m., after consuming his meal, he had a second vodka and tonic which he drank hurriedly before leaving the restaurant. Both drinks contained approximately two and one-half ounces of vodka.

Defendant was driving his cousin's automobile. When he came under a railroad overpass and made a right turn, he

claimed the steering wheel had first tightened and then suddenly loosened, causing him to swerve out of control and hit the Nehil car. Defendant testified that his car had about $3,200 worth of damage and the Nehil car $7,000 worth.

When the officer arrived at the scene of the accident at about 7:10 p.m., defendant acknowledged he was the driver of one of the cars. He produced a valid Maryland driver's license in his name and the registration and insurance card for the vehicle. After attending to the injured persons, the officer spoke to defendant and noticed an odor of alcohol on his breath. The officer testified that defendant was swaying slightly, although he was calm, cooperative, and gave him no problem. He said defendant looked tired and his eyes were bloodshot.

Defendant was arrested and taken to police headquarters where Miranda*fn2 rights were given to him. Thereafter, the officer asked defendant where he was staying in New Jersey. Defendant responded that he was staying with his daughter in Wood-Ridge. The officer then ran a computer check on defendant and obtained driver's abstracts from New Jersey and Maryland and learned that defendant's driving privileges were suspended in New Jersey. In his police report the officer wrote that defendant's speech was slightly slurred, he was staggering slightly, and showed slight fumbling of his hands.

Defendant was brought downstairs in police headquarters where breathalyzer and coordination tests were administered to him in front of a video camera operated by another officer. We have viewed that tape.*fn3 While performing the

heel-to-toe straight-line walk, defendant twice lost his balance and had to reach for the wall (the Law Division judge observed that this occurred on three occasions). Defendant's speech sounded slightly slurred. In an attempt to explain his uncoordinated movement, defendant testified that the big toe on his left foot had been damaged in a lawnmower accident and, as a result, it swelled affecting his balance. He displayed his foot to the municipal court judge who concluded he would give defendant ...


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