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State v. Lutz

March 16, 1998

STATE OF NEW JERSEY, PLAINTIFF/RESPONDENT,
v.
GARY LUTZ, JR., DEFENDANT/APPELLANT.



Argued: February 3, 1998

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

Before Judges Conley, Wallace and Carchman.

Wallace, Jr., J.A.D.

Defendant was found guilty in the Point Pleasant Borough Municipal Court of driving under the influence of alcohol, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. He was acquitted of a seat belt charge. After merger, for his third DWI conviction, defendant was sentenced to serve 180 days in jail; to pay a $1,000 fine, a $100 surcharge, a $50 V.C.C.B. penalty, a $75 Safe Neighborhood Services Fund surcharge, a $25 court costs, and had his driver's license suspended for ten years. Defendant appealed to the Law Division where, following a trial de novo on the record below, he was again found guilty. The Judge separated the careless driving offense, imposed a separate fine and costs on the careless driving offense, and imposed the same sentence on the drunk driving charge as in the Municipal Court. Defendant's sentence was stayed pending appeal.

Defendant seeks a reversal of his conviction based on the following grounds:

I. BLOOD TEST RESULTS HERE ARE NOT FORENSICALLY RELIABLE AND, THEREFORE INADMISSIBLE DUE TO THE STATE'S FAILURE TO SHOW (A) DUPLICATE TESTING, (B) ADHERENCE TO THE BLOOD ANALYZER MANUFACTURER'S CALIBRATION PROTOCOL'S AND (C) SERUM ALCOHOL RESULTS FREE FROM INTERFERENCE FROM OTHER SUBSTANCES.

II. THE EVIDENCE FAILED TO ESTABLISH PROBABLE CAUSE TO ARREST DEFENDANT.

III. THIS COURT SHOULD DISMISS THE "DUI" COMPLAINT HERE BECAUSE IT FAILS TO ADEQUATELY DESCRIBE THE OFFENSE WITH WHICH DEFENDANT IS CHARGED, AND THUS PREVENTS HIM FROM PREPARING HIS DEFENSE.

IV. THE STATE FAILED TO PROVE CARELESS DRIVING BEYOND REASONABLE DOUBT.

V. CONVICTION OF BOTH DWI AND CARELESS DRIVING VIOLATED DEFENDANT'S RIGHT TO BE FREE OF DOUBLE JEOPARDY IN THAT SUCH A RESULT FRACTIONALIZED CONDUCT COMMON TO BOTH CHARGES AND RESULTED IN MULTIPLE PUNISHMENTS FOR A SINGLE ACT.

VI. DEFENDANT WAS AND IS ENTITLED TO A JURY TRIAL.

We have carefully considered each of these contentions and the arguments advanced by defendant in support of them and find that, except with regard to the arguments addressed to his careless driving conviction, they are without merit. R. 2:11-3(e)(2). We affirm the drunk driving conviction and sentence, and reverse the careless driving conviction.

Defendant was driving his vehicle at approximately 7:20 p.m. on November 11, 1995, when he had a head-on collision in the opposite lane with a vehicle driven by Michael Bodden. It was a windy, drizzly night and the cars had been traveling on a straight stretch of a two-lane road in a thirty-five miles per hour speed zone. Defendant exited his car and was bleeding from the head. He spoke with Bodden and apologized for the accident, explaining that his car had "slid." Bodden's pregnant wife was a passenger in his car, and defendant expressed concern for her. Both the Boddens smelled alcohol on defendant's breath during the conversations with defendant and so informed the police when they arrived.

Defendant told policeman Gary Colberg that he had tapped his brakes as his vehicle began to slide on the wet pavement. He said his vehicle crossed the center lane and collided with the Bodden vehicle. Defendant was taken to the hospital by ambulance. At the hospital, Colberg smelled alcohol or a medicine-type odor on defendant's breath. Colberg advised defendant of his Miranda *fn1 ...


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