June 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
STEPHEN MCLAUGHLIN, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, No. 05-51.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2007
Before Judges Wefing and Yannotti.
Following a trial de novo in the Law Division, defendant was convicted of speeding, in violation of N.J.S.A. 39:4-98; reckless driving, in violation of N.J.S.A. 39:4-96; and driving while intoxicated, in violation of N.J.S.A. 39:4-50. For driving while intoxicated, the trial court, based upon defendant's prior record, sentenced defendant to serve ninety days in jail and ninety days in in-patient treatment and revoked defendant's driving license for ten years. The trial court also sentenced defendant to a concurrent thirty days in jail for reckless driving. Appropriate fines, penalties and surcharges were imposed for each conviction. All aspects of defendant's sentence were stayed, with the exception of the revocation of defendant's driver's license, pending his appeal to this court. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On the night of March 11, 2005, Officer Steven Gerling of the Brick Township Police Department stopped defendant's automobile after a radar reading indicated that defendant was driving fifty miles per hour in a thirty-mile-per-hour zone. When Officer Gerling approached defendant's automobile, he detected a strong odor of alcohol; the officer testified that defendant's face was flush and his eyes watery and bloodshot. When asked to produce his credentials, defendant's hands were slow and fumbling. In addition, his speech was slow and slurred.
Officer Gerling asked defendant to step out of the car. Defendant's gait was slow and staggering. Officer Gerling then administered three tests to defendant: the horizontal gaze nystagmus test, the walk-and-turn test and one-leg-stand test. Defendant's performance was unsatisfactory on each. Officer Gerling placed defendant under arrest and transported him to police headquarters where he administered a Breathalyzer test. Defendant's breath samples disclosed blood alcohol levels of .10 and .11.
On appeal to the Law Division, defendant argued that the evidence was insufficient to permit the admission of the Breathalyzer readings, and the trial court agreed because there was no testimony that the officer had waited the requisite twenty minutes before administering the Breathalyzer test. State v. Downie, 117 N.J. 450, 455-56 (1990). The trial court concluded, however, that the evidence was more than sufficient to find defendant guilty of driving while intoxicated without regard to the Breathalyzer readings.
Defendant raises the following arguments on appeal:
POINT I POLICE LACKED PROBABLE CAUSE FOR A CUSTODIAL ARREST.
POINT II OBSERVATIONS EVIDENCE DID NOT PROVE AN OFFENSE BEYOND A REASONABLE DOUBT.
POINT III THERE IS NO EVIDENCE THAT MR. MCLAUGHLIN WAS ADVISED OF HIS RIGHT TO AN INDEPENDENT BLOOD TEST.
POINT IV THE MUNICIPAL COURT IMPROPERLY BURDENED THE DEFENSE BY GRANTING THE STATE AN ADJOURNMENT WHEN DEFENDANT HAD APPEARED FOR TRIAL WITH COUNSEL AND A RETAINED EXPERT, AND THEN MADE COUNSEL INEFFECTIVE BY FORCING THE DEFENSE TO TRY THE CASE ON ANOTHER DAY WHEN THE DEFENSE EXPERT WAS UNAVAILABLE, AND VIOLATED THE RIGHT TO A SPEEDY TRIAL.
POINT V MR. MCLAUGHLIN SUFFERED DOUBLE PUNISHMENT WHEN THE MUNICIPAL COURT DECLINED TO MERGE THE CONVICTION UNDER N.J.S. 39:4-96.
POINT VI MR. MCLAUGHLIN DEMANDED AND WAS DENIED THE RIGHT TO TRIAL BY A CIVIL JURY UNDER N.J. CONST. ART. 1, PAR. 9 IN DEFENSE OF ACTIONS FOR JUDGMENT UNDER N.J.S. 17:29A-35b(2)(b).
POINT VII DWI SURCHARGES CREATED UNDER N.J.S. 39:4-50 AND 39:4-50.8 UNCONSTITUTIONALLY CREATED REAL AND APPARENT CONFLICTS OF INTEREST FOR THE POLICE, THE PROSECUTOR, AND THE MUNICIPAL COURT.* (*Not Raised Below)
After carefully reviewing the record on appeal, we are satisfied defendant's convictions should be affirmed, substantially for the reasons stated by Judge Wendell E. Daniels in his oral decision of February 17, 2006.
The State filed a cross-appeal of the trial court's decision to bar admission of the Breathalyzer results. Our disposition makes it unnecessary to reach the merits of this cross-appeal, and it is thus dismissed as moot.
The judgment of conviction is affirmed; the cross-appeal is dismissed as moot.
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