Defendant, Ronald J. Lizotte, appeals from a decision of the Municipal Court in Middle Township, Cape May County, wherein he was found guilty of operating his motor vehicle on June 13, 1992, while under the influence of intoxicating beverages.
At approximately 1:35 a.m. on June 13, 1992, Officer Elias of the Middle Township Police Department stopped defendant's van for speeding. (Defendant pleaded guilty to the speeding violation.) In approaching the vehicle and examining the driver, the officer detected signs of alcohol consumption. The officer also observed an open can of beer on the vehicle's console. The defendant did not promptly recite the alphabet upon request and spoke in a slurred manner and, according to the police officer's testimony, was swaying when exiting the vehicle. The defendant was arrested for driving while intoxicated, transported to police headquarters, and administered two breathalyzer tests, which gave readings at 2:15 a.m. of .13 and at 2:22 a.m. of .14. These tests were admitted into evidence at the time of trial and based on this evidence, the defendant was found guilty.
The issue raised by the defendant on appeal is his claim (not able to be controverted) that after he observed that the police officer was pulling him over for speeding and upon halting the motor vehicle and shutting off the ignition, he immediately reached for an open beer can and consumed its contents. This action, he argued, vitiated the breathalyzer test results barring the reading from being admitted into evidence. The reason given for the consumption of the beer was that the defendant was concerned that the police officer would see the open container of alcoholic beverages, with some contents in it in violation of N.J.S.A. 39:4-51(a). The defendant testified:
Q. Okay. And you didn't notice this can of beer until the point at which the police officer was pulling you over?
A. Well, I did notice it, but I didn't think nothing of it.
Q. Okay. And then when he pulled you -- when you saw the lights, you thought he was going to --
A. Well, he was gonna see the can of beer of there.
Q. He's gonna see the beer?
A. And it was opened, so I figured the best thing for me to do was try and get rid of it and ...