On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket Number 7-02.
Before Judges Petrella,*fn1 Wefing and Fuentes.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2003
Defendant John F. Cryan, Jr., was tried and convicted of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50(a) and reckless driving, N.J.S.A. 39:4-96 in the Bedminster Municipal Court. He was again convicted in a trial de novo in the Law Division. R. 3:23-8. Defendant was assessed the mandatory fines and penalties, ordered to complete twelve hours at an Intoxicated Driver's Resource Center and his driving privileges were revoked for a period of six months.
The following facts were developed from the evidence presented at trial.
On August 14, 2001, at approximately 2:00 a.m., defendant was involved in an automobile accident when he crashed his car into a tree. The collision rendered the vehicle inoperable. When Officer Marjorie Cooper and Sergeant Karl Rock of the Bedminster Police Department arrived at the scene, defendant's vehicle was in the center of the road. The car's driver's side door was heavily damaged. The air bags were deployed and the car horn was sounding.
Defendant was seated behind the steering wheel. He was bleeding from a cut on his lip, was disoriented and complained of pain on the left side of his body. Officer Cooper noted that his eyes were red and watery. Sergeant Rock smelled an odor of alcoholic beverage emanating from inside defendant's vehicle. Cooper detected a similar odor emanating from defendant's person. Defendant denied he had been drinking that evening.
Defendant was placed inside an ambulance where he received first aid for his injuries. Although the paramedic at the scene also detected an odor of alcoholic beverage on defendant's breath, there was nothing in defendant's demeanor, i.e., his speech, gait, level of cooperation, that was consistent with intoxication.
Officer Cooper suspected, based on the odor of alcohol, that defendant was under the influence of alcohol, and thus directed him to perform two separate field sobriety tests. The first was the finger dexterity test. Cooper described this test as follows:
I asked him to touch his thumb to each finger and count out loud as I was doing it. I wanted him to go one, two, three, four and then count backwards, touching each finger, four, three, two one. I told him to touch the tips of his fingers and not in between or not the pattern down here, as to touch each tip as he counted. And I demonstrated it one more time, one, two, three, four, four, three, two, one. I asked him to do that five times and stop when he's done.
According to Cooper, defendant failed this test by failing to touch his thumb to his fingertip and only performing the test three times.
The second test involved reciting the alphabet. Cooper instructed defendant to recite the alphabet commencing with the letter"D" and stopping at the letter"S." Once again defendant failed to follow Cooper's instructions. He recited more of the alphabet than requested and placed the letters in the wrong order. His speech was slurred and his words were mumbled. Based on the results of these tests Cooper concluded that defendant was under the influence of alcohol. She once again asked defendant whether he had been drinking. This time, according to Cooper, defendant admitted he had had three or four drinks. He also told Cooper that he was a diabetic and was not feeling well.
After consulting with Sergeant Rock, Cooper advised defendant that he was under arrest for DWI. Defendant then indicated that he wanted to be taken by ambulance to the hospital for medical treatment. However, while in the ambulance, defendant refused all attempts to provide him with medical care. In fact, according to the paramedic, defendant said that he only came into the ambulance"to get away from the police."
At some point thereafter, defendant exited the ambulance and approached Sergeant Rock and told him he did not want any medical attention. Sergeant Rock determined that because of defendant's injury to his lip he could not administer a breathalyzer test. He therefore decided to transport defendant to the Somerset Medical Center to obtain a sample of his blood for blood alcohol content (BAC) analysis.
Before he was taken away, defendant told Officer Cooper that he wanted to speak to her alone. Cooper advised defendant that Sergeant Rock needed to be present during this conversation. It is not disputed that at this point in time defendant was under arrest and had not been given Miranda warnings.*fn2 When Sergeant Rock joined Cooper he told defendant:"There is nothing to talk about." Notwithstanding this reproach, defendant asked Rock to give him"a break." When both Cooper and Rock failed to respond to this unsolicited statement, defendant called Sergeant Rock an"asshole."
Defendant was handcuffed and transported to the hospital by Officer Cooper in a police patrol car. While en route, defendant continued making unsolicited statements to Cooper. He wondered out loud why he was being treated so severely because:"it was drunk driving, not some big crime." He also called Cooper an"asshole" and said she just wanted"to screw him" for making one mistake.
Upon arriving at the hospital, defendant exited the police car and walked into the hospital without any apparent difficulty. While at the hospital, defendant permitted the medical staff to prick his finger to extract a sample of his blood for glucose level analysis. However, he refused to permit the same medical personnel to obtain a larger sample of his blood for BAC analysis.
At approximately 3:00 a.m., defendant demanded to speak to a police supervisor. Lieutenant William Stephens approached defendant in response and stated:"What can I do for you?*fn3" According to Stephens, defendant stated that he felt very uncomfortable with his situation. He repeatedly expressed his belief that Officer Cooper was"trying to stick it up his ass." He also indicated that he had recently donated $20,000 to a charitable cause and did not believe that he warranted the type of treatment he had received thus far from the police. He also expressed concern over his wife's potential reaction to his DWI arrest. Finally, defendant told Stephens that he had given Officer Cooper"all his PBA cards" in an unsuccessful attempt to dissuade her from pursuing the DWI case against him.
Concerning his cooperation with the medical staff's efforts to obtain a sample of his blood for BAC analysis, defendant repeatedly told Stephens that he would not cooperate because he was afraid of needles. This exchange between defendant and Stephens took approximately fifteen to twenty minutes. It is undisputed that Stephens did not advise defendant of his rights under Miranda. It is equally undisputed that Stephens's purpose at the hospital was to notarize the medical certificate required under N.J.S.A. 2A:62A-11, and not to elicit information from defendant. This was made clear in the following exchange between the Municipal Court Judge and counsel:
PROSECUTOR: Thank you, Judge. There are some thing[s] that I can add with regard to our recent conversation with Lieutenant Stephens. And that is that he told us that his purpose there was solely for the drawing of blood, that he was not there to elicit information, nor did he attempt to elicit any information. He did not ask any questions. He was not seeking to elicit any information. --
THE COURT: Is that -- do you agree on that?
DEFENSE COUNSEL: That's what -- correct, that's what Stephens had told us --
DEFENSE COUNSEL: -- off the record,*fn4 which we are not disputing.
THE COURT: All right, that's helpful --
The State also called the emergency room physician who treated defendant for his injuries. This witness testified that defendant's injuries to his lip required stitches. Prior to commencement of treatment, defendant was given a local anesthetic which was administered through an injection directly in the area of the wound. The doctor did not recall defendant objecting to the use of needles.
After the treatment was completed, defendant told Officer Cooper that he wanted to leave the hospital. While en route to police headquarters in Cooper's police car, defendant complained to Cooper of pain in his rib cage. He was then placed in Lieutenant Stephens's police car for transport back to Somerset Medical Center. While on the way back to the hospital, Stephens had to stop to permit defendant to urinate in some bushes nearby. Stephens noted that defendant swayed while urinating, requiring Stephens to place his hand on defendant's back to stop him from falling.
Once they arrived at the hospital grounds, defendant again requested to exit the police vehicle. This time defendant vomited by the side of the hospital entrance. Stephens noted that defendant's vomit had a strong odor of alcoholic beverage. Officer Cooper remained by defendant's side when he was readmitted to the hospital. ...