On appeal from Superior Court of New Jersey, Law Division, Camden County, 2006-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, C.S. Fisher and Yanotti.
Defendant was convicted of driving while intoxicated, N.J.S.A. 39:4-50, following a trial de novo in the Law Division, and he has appealed. Having reviewed the record in light of the contentions advanced on appeal, we affirm.
Police Officer John Beasley of the Stratford Police Department was on routine patrol in the early morning hours of March 20, 2005, when he observed a car on Warwick Road being driven by defendant cross the double yellow line and nearly hit a pedestrian crossing sign as it swerved back. Officer Beasley signaled the car to pull over, and it did so without incident. When he approached the car and spoke to defendant through the open window, he detected a very strong odor of alcohol. Defendant's eyes appeared watery and bloodshot. When asked to produce identification, defendant presented his driver's license and registration but could not locate a current insurance identification card. Defendant's movements while searching for these documents appeared slow but not fumbling. The officer asked defendant if he had consumed any alcoholic beverages, and defendant responded that he had four beers. Defendant told the officer that he was coming from his mother's house in Runnemede.
Concerned that defendant might be intoxicated, Officer Beasley asked him to step out of the car. As defendant did so, he held onto the inside of the car for support and balance. Officer Beasley administered the horizontal gaze nystagmus test, the one-legged stand test and the walk-and-turn test. Officer Beasley's testimony detailed defendant's unsatisfactory performance on these tests.
Officer Beasley told defendant that he was being placed under arrest for driving while intoxicated. The officer testified that at that point defendant pleaded for the officer to give him a break because a conviction would represent his third conviction for driving while intoxicated.
Officer Beasley placed defendant in his patrol car and transported him to headquarters where, after advising defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), he administered a Breathalyzer test. He took three samples. The reading on the first was .07. Officer Beasley testified that defendant had not given a full breath sample and that he told defendant that if he did so again, he would charge defendant with refusing to take the test. N.J.S.A. 39:4-50.4(a). Defendant's next two samples both yielded readings of .10.
At trial, defendant testified that he had been working in his home from approximately 5:00 p.m. until approximately 11:30 p.m., applying stripping solutions to the floors in his living room and kitchen. He said he worked without any protective gear such as a face mask or gloves and that the windows in the rooms were closed.
His brother-in-law, who was helping him get the house in order, also testified. He said he had worked with defendant on the floors for approximately one-half hour but that the chemicals bothered him. For the balance of the evening, he worked straightening the basement and the garage. The two men left together.
Defendant then went to his brother's house, where the two watched a movie and had one beer apiece. Defendant then invited his brother to see the work he was doing at his house, and the two drove there. Defendant's brother brought two bottles of beer with him, and they each drank one at defendant's house. Defendant resumed his stripping work. His brother left, and defendant decided to visit an after-hours establishment, Balloons. As he drove past, he decided not to enter because the people standing outside appeared considerably younger than he. It was at that point that Officer Beasley signaled defendant to pull over. Defendant testified that when he told Officer Beasley that he had four beers, he clarified his statement by saying that he and his brother had each had two beers.
Defendant's brother and brother-in-law both testified for defendant, as did two character witnesses. Defendant also presented two expert witnesses, Thomas Innocente, an expert in the Breathalyzer, and Marvin Kaminski, Ph.D., a board-certified toxicologist. Dr. Kaminski testified as an expert on the adverse effects of chemicals on the body.
Mr. Innocente said that Officer Beasley's testimony was inconsistent. If the officer had considered the first breath sample insufficient, he should not have tested it. The fact that he tested it indicated that Beasley saw no problem with the manner in which defendant produced that sample. He also testified that the Breathalyzer machine is unable to distinguish between ethanol alcohol in the body as the result of consuming alcoholic beverages and alcohol such as methanol that can be absorbed into the body through the use of chemical products like those defendant had been using on his floors. Dr. Kaminski testified about the ...