On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. CPO 15567.
The opinion of the court was delivered by: Gilroy, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner,*fn1 Parrillo and Gilroy.
Defendant, Dr. Thomas R. Howard, Jr., appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a), after a trial de novo in the Law Division. The primary issue presented on appeal is whether the State is required to prove that a defendant has been advised of his or her right to independent testing pursuant to N.J.S.A. 39:4-50.2(c) and (d) in order to sustain a conviction of a per se violation under N.J.S.A. 39:4-50(a). Because we conclude that the State is not required to present such proofs as an element of the offense, we affirm.
On December 13, 2003, at approximately 2:00 a.m., defendant was operating a motor vehicle eastbound on Hollywood Avenue, Township of Carney's Point.*fn2 Defendant was proceeding home, having just left the Italian Kitchen Restaurant where he had consumed alcoholic beverages commencing at 10:00 p.m., the evening prior. Following directly behind defendant was an individual operating a red vehicle. Corporal Ogbin, who had been driving a police vehicle in the opposite direction, turned his car around, and followed the two automobiles. While behind the red vehicle, Ogbin observed defendant's car "cross the center line" and "return to the proper lane of travel and immediately cross the shoulder line, and then turn . . . and then return to the proper lane of travel." In the interim, Patrolman Mangiocco turned onto Hollywood Avenue and followed behind Ogbin's vehicle. While in this position, Mangiocco made observations of defendant's vehicle. "He just kept coming back into the [west] lane and traveling back into the [east] lane into his lane of travel." Corporal Ogbin activated his emergency lights intending to stop the red vehicle. After the red vehicle and Ogbin's vehicle pulled to the shoulder, Mangiocco pulled directly behind defendant and followed him for approximately 100 yards, during which time he observed defendant "swerving." When asked to describe what he meant by "swerving," Mangiocco stated: "[h]e continued to go into the [westbound] lane, bring his vehicle back in his lane of travel, at which time I stopped his vehicle."
Following the stop, Mangiocco observed that defendant had bloodshot eyes and fumbled through a number of receipts that fell to the floor of his car when asked to produce motor vehicle credentials. On making the observations, Mangiocco requested defendant to exit his motor vehicle for the purpose of performing field coordination tests. As defendant stepped out of the vehicle, Mangiocco observed that "he . . . place[d] his right hand on his vehicle to use for balance to walk to the front of his vehicle to the side of the road." Mangiocco requested defendant to perform two field coordination tests: a heel-to-toe walk, and a one-leg stand. Mangiocco concluded that defendant failed the two tests because he took the wrong number of steps when performing the heel-to-toe test, and kept the "tip of his foot . . . touching the ground for balance" when performing the one-leg stand test. After completion of the tests, Mangiocco formed the opinion that defendant was under the influence of alcohol, and arrested him.
At police headquarters, defendant was turned over to Corporal Ogbin who administered two breathalyzer tests at 2:54 a.m. and 3:00 a.m., resulting in .12 blood alcohol concentration (BAC) readings. Defendant was issued a summons for DWI; failure to exhibit a valid insurance card, N.J.S.A. 39:3-29; failure to drive within a single lane, N.J.S.A. 39:4-88b; and reckless driving, N.J.S.A. 39:4-96.
The matter was tried before Judge Krell in the Carney's Point Township municipal court on June 10, 2004. Police Officers Mangiocco and Ogbin testified as to their observations of defendant's motor vehicle on the roadway; Mangiocco testified to his observations of defendant at the time of the stop; and Ogbin testified concerning the two breathalyzer test results. Defendant testified that another person was operating a second vehicle directly behind him on Hollywood Avenue at the time of the stop for the purpose of following defendant to his home; that he observed flashing lights from a police car behind the second vehicle pulling the operator over; that he pulled his vehicle over, in order not to leave the other person; and, that it was at this time when Mangiocco pulled behind defendant. Defendant denies that he was directly pulled over by Mangiocco.
Prior to Ogbin's testimony concerning the administration of the breathalyzer tests, defense counsel, having reviewed the discovery provided by the State, stipulated that: 1) Ogbin was a qualified breathalyzer operator; 2) that the breathalyzer was properly tested before and after the date of the offense, and was in proper working order at the time of the tests; and 3) that the breathalyzer tests were administered properly. Based on the testimony and the stipulation, the judge found that the State had probable cause to arrest defendant for DWI; determined that the State had failed to prove DWI based upon the officers' observations of the operation of defendant's motor vehicle and defendant at time of the stop, but found defendant guilty of DWI based solely upon a per se violation because of the two BAC readings. Because this was defendant's second offense, the judge imposed a sentence of two years suspension of driving privileges; forty-eight hours detention at an approved Intoxicated Driver Resource Center (IDRC); and fines of $505. Other appropriate costs, assessments, penalties and surcharges were also imposed. Those portions of the sentence suspending defendant's driving privileges and directing his detention at an IDRC were stayed, pending appeal.
On appeal de novo to the Law Division, defendant argued the issue of lack of probable cause for Mangiocco to arrest him for DWI, and also raised for the first time at oral argument an issue concerning the validity of Ogbin's breathalyzer operator's certification card. Defendant contended that the card was invalid because one of the two persons whose facsimile signature appears on the card, former Superintendent of State Police Carl Williams, had left his office on February 28, 1999, approximately four months prior to the date that Ogbin was issued the card on June 18, 1999.
On October 15, 2004, after having made independent findings of fact and giving due regard to the municipal judge's opportunity "to judge the credibility of the witnesses," State v. Johnson, 42 N.J. 146, 157 (1964), the judge rejected defendant's argument concerning lack of probable cause for his arrest, and found defendant guilty of DWI based upon the two breathalyzer readings. The judge, however, never made independent findings of fact concerning whether there was sufficient evidence in the record to sustain a conviction for DWI based upon the police officers' observations of defendant's motor vehicle moving upon the highway, and of defendant at the time of the motor vehicle stop.*fn3 The judge also declined to hear argument concerning the breathalyzer ...