On appeal from the Superior Court of New Jersey, Law Division, Cumberland County - L-47-99.
Before Judges Coburn, Axelrad and Landau.
The opinion of the court was delivered by: Landau, J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2000
Defendant Brian J. Snyder appeals his conviction of operating a motor vehicle under the influence of alcohol, N.J.S.A. 39:4-50, following a trial de novo in the Law Division, Cumberland County, on the record established before the Municipal Court of Vineland.
Defendant contends that the trial court should have found that the State failed in its burden to prove operation under the influence beyond a reasonable doubt. The argument rests primarily upon defendant's uncorroborated factual assertion that, after causing minor damage to another vehicle in a tavern parking lot, he drank whiskey from a V-O bottle that he kept in his car.(*fn1) Defendant said this drinking took place after he decided to call his wife so that she could drive him home, but before the police arrived.
Our review of the record satisfies us that the proofs and stipulations before the court were sufficient to fulfill the State's burden of persuasion under N.J.S.A. 39:4-50 beyond a reasonable doubt. In consequence, we affirm.
Defendant testified that he had three beers at the Fireside Tavern during a period of three hours beginning at about 10:30 p.m. on June 4, 1999. He left the tavern about 1:30 to 1:35 a.m. on June 5, went to his pick-up truck, backed out of his space and was about to exit onto the highway when a man told him that he had backed into and damaged a parked vehicle.
Defendant said he then drove to the front of the tavern, parked his truck, and walked over to examine the damaged vehicle where he noticed what he characterized as "slight damage on the front hood." According to the defendant, he wanted to "try and make an agreement between the young lady whose car I backed into," and so he called his wife for assistance in that regard and also so "she could come to the scene and pick me up and take me home."
When the young lady appeared to be upset, defendant testified he then went to his vehicle where he drank about "three shots of alcohol" from a bottle. Defendant maintained that he consumed the V-O about fifteen minutes after reparking his truck, before he learned that the police had been called, but after he had called his wife to assist and to take him home.
When a police officer arrived at 1:52 a.m.,(*fn2) he asked for defendant's credentials. Defendant dropped the contents of his wallet on the ground. Defendant told the officer that he consumed three beers in the tavern, but not about later drinking from a bottle of V-O which, he testified, by then he had "stuck under the seat of the car." The officer administered a field sobriety test which defendant was unable sufficiently to perform, particularly as to balance and full alphabet recital. Back-up was summoned, and defendant was arrested and Mirandized. At the Vineland Police Station, two valid breathalyzer tests were administered at 3:21 a.m. and 3:29 a.m., producing blood-alcohol readings of .13% and .14% respectively.
The accuracy of the breathalyzer readings is not challenged on appeal. Rather, defendant argues that this case is unlike State v. Lizotte, supra note 1, 272 N.J. Super. 568, cited by the trial judge, because his drinking and operation of the motor vehicle were not "so closely intertwined that they constituted one event," nor was there "an intimate association of ingestion of alcoholic beverages with the control of a potentially lethal device." Id. at 572. He contends that the breathalyzer test taken in the police department reflects the alcohol in his system after he drank in the parking lot, and was not properly indicative of his level of intoxication at the time of operation or imminent operation of his vehicle because he decided not to drive himself home.
Defendant's argument omits mention of critical facts.
Moreover, it implicitly assumes that the judge was required to accept his unverifiable, uncorroborated, and highly unlikely tale of post-operation alcohol consumption before the police arrived. ...