On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 02-098.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2004
In this appeal, we once again address the issue of "operation" of a motor vehicle in the context of a conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant, Donna Ebert, appeals from her conviction for DWI and reckless driving, N.J.S.A. 39:4-96, after a trial de novo in Superior Court. We affirm.
At midnight on Friday, September 13, 2002, Officer Scott Welsch of the Denville Police Department responded to a report of a vehicle stolen from the parking lot at Charlie Brown's restaurant across the street from police headquarters. He was met by the restaurant manager in the parking lot and shortly thereafter by defendant, who told the officer that she could not find her BMW and believed it had been stolen. She had the car keys in her hand.
As the officer was speaking to defendant, he noticed that her speech was slurred and she was nervous and stuttering. After talking to her for a while, he smelled alcohol on her breath. The officer testified that when he asked defendant if she had anything to drink at Charlie Brown's, she said "she had nothing to drink since she was at the lot. And that she just came there to sleep off what she did have to drink. She felt [she] wasn't okay to drive." She told the officer that she went into the restaurant to make a phone call and when she came out her car was missing.
While the officer was talking with defendant, the restaurant manager found defendant's car on the other side of the building. As defendant was walking to her car, the officer noticed that she had a problem keeping her balance. He also noted that her car was parked in the middle of two parking spaces. The restaurant manager told the officer that defendant had nothing to drink in his bar.
Based upon his observations of defendant, her statements to him and the fact that she had the car keys in her hand when he first encountered her, the officer believed that defendant had driven to the parking lot in an intoxicated state. While the officer was administering the field sobriety tests, defendant claimed that her brother was with her and had been driving. The officer asked the manager to look in the restaurant for defendant's brother. At that point, defendant told the officer that she was alone and did not want to be charged with DWI. When defendant failed to successfully complete the field sobriety tests, the officer placed her under arrest, transported her to police headquarters and administered the breathalyzer test. Defendant scored.27% blood alcohol content (BAC) on two separate breathalyzer tests.
Prior to trial, defendant requested a hearing on the issues of whether she was "operating" a motor vehicle and whether her statements to the officer prior to her arrest should be suppressed pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). The hearing occurred on December 10, 2002, after which the court determined that the officer's testimony was credible and that the State had met its burden to show that defendant was operating the vehicle. The suppression motion was also denied.
The trial proceeded on February 19, 2003, and at the close of the State's case, defendant again moved to dismiss on the ground that the State had not proven beyond a reasonable doubt that defendant was operating the vehicle at the time of her arrest. Defendant further moved to suppress her statements made to the officer, arguing that the officer suspected defendant of DWI as soon as he talked to her but did not provide her with Miranda warnings until after the field sobriety tests were administered. Both motions were denied.
The trial proceeded with defendant's testimony. She acknowledged that she had been drinking and that she was, in fact, drunk that night. She testified about the events of that night as follows. After work, she planned to go out for a few drinks with some girlfriends. At 5:30 p.m., she parked her car at Charlie Brown's on Route 46 in Denville, where she was to meet a friend, Dana Spagnola, "[s]omeone that I was not supposed to be with.... Someone that my husband doesn't care too much for." They were out past defendant's curfew of 10:00 p.m., when Dana drove her back to Charlie Brown's. Defendant was trying to call her husband, Jimmy, to pick her up because she couldn't drive, but Dana's cell phone didn't work. Defendant's testimony as to whose cell phone she was attempting to use was inconsistent. At one point, she testified that it was her cell phone and in other instances, she testified that it was Dana's cell phone. Regardless of whose phone it was, Dana left and defendant walked into Charlie Brown's to make a phone call. She could not remember, however, whether she used a pay phone or a house phone. On direct examination, defendant testified that she "called the cops." On cross-examination, she testified that she called her husband but could not get through. When asked to identify the friends she claimed to be with that night, defendant stated that she did not want to get them involved. She denied telling the officer that she drove to the Charlie Brown's parking lot to sleep it off. She also denied that she had driven the car after she had been drinking that night.
After hearing the testimony and the arguments of counsel, Municipal Judge Arnold Miniman, reviewed defendant's testimony and found her not credible or believable. He found the officer credible, however, and determined that defendant's first admission to him "no matter how intoxicated she was... was the correct one. After having an opportunity to... think things through she realized that she was in big trouble for DWI and changed her story. She did not come forward with anybody [who] drove her. All she has is her testimony, which is a day late and a dollar short to quote something somebody else might say." The judge noted that defendant's testimony regarding the cell phone was inconsistent, and that there was no reason for her to park her car improperly at 5:30 p.m. He concluded "that she was drinking and driving her motor vehicle that night," and found her guilty of DWI and reckless driving.
On de novo review, Superior Court Judge John Harper reviewed the record, found defendant guilty of both offenses and reduced the license suspension from eight to six months but assessed the ...