On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. MA-4590.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and Lyons.
Defendant appeals from a conviction on trial de novo at which he was found not guilty of careless driving and driving while intoxicated (DWI) but guilty of refusal to submit to a breathalyzer test in violation of N.J.S.A. 39:4-50.2.*fn1 He was sentenced to pay a fine of $1,000, together with costs and surcharges, and his license privileges were suspended for ten years. He was also ordered to complete an alcohol education program.
On this appeal defendant argues that his refusal conviction "must be reversed and a judgment of acquittal entered as the State did not prove each and every element beyond a reasonable doubt." In essence he asserts "there was a lack of probable cause for the arrest and/or a lack of proof [beyond a reasonable doubt] regarding the refusal."
On the morning of July 22, 2004, defendant crashed his automobile into the rear of another car which had stopped in the middle lane of the Garden State Parkway at about 3:00 a.m.
Defendant's car came to rest about 500 feet beyond the other vehicle, which had been pushed to the side of the road.
The responding State trooper, John Salvato, "detected an odor" of alcohol on defendant and observed that defendant's face was "flushed" and his eyes were "bloodshot." Defendant admitted to having "a few beers." Salvato conducted "the horizontal gaze," "alphabet," "heel to toe," and "one-legged stand" field sobriety tests. According to Officer Salvato, defendant's speech was "slurred" and he "mumbled several letters and stopped" during the alphabet test. His performance on the "heel-to-toe" and "one-legged" stand tests were also unsatisfactory, and he "lost his balance."*fn2 Defendant was arrested for DWI.*fn3
Defendant testified that he awoke at about 6:00 a.m. the morning before the accident, worked a whole day until 5:00 p.m., and played softball for his employer after work where he consumed about a beer and one-half. Defendant further testified that, following the game, he joined his wife for dinner, had two more beers and went home to bed. He was awakened at approximately 2:30 a.m. by a telephone call and learned that the father of his "best friend" had died. He was driving to meet his friend when the accident occurred and claims that he collided into the other car because it was "stopped" in the road. Defendant also claims he performed the field tests flawlessly although "dazed" by the impact of the accident which also caused him several injuries. According to defendant "[t]he combination of the air bag and then  going back into the vehicle [which was] filled with smoke" affected his eyes and lungs. As a result, defendant testified that he informed the trooper that he was having difficulty breathing.
Defendant's wife corroborated the facts surrounding the dinner, return home, call from the friend, and defendant's departure.
At the barracks, Trooper Salvato asked defendant to give a breath sample. The testimony varies with respect to defendant's response. Defendant contends that he agreed to give a sample but reiterated to Officer Salvato that he had chest pains and was having "a hard time breathing" after the accident.*fn4 The defendant testified that after being read the breathalyzer form, he said he "want[ed] to take [the test] but was having a really hard time breathing right now."
Trooper Salvato testified that defendant said "I refuse" to submit to a breathalyzer after the Motor Vehicle Commission statement was read to him and that no treatment was rendered to defendant by an EMT team that had been called to the barracks.
According to Salvato, "approximately an hour" later he requested the breath test, but the trooper declined because defendant had already refused.
The municipal judge found defendant guilty of DWI, careless driving, and the refusal. The judge made the following findings with respect to the refusal charge:
Although the defendant complained of difficulty breathing, when given medical treatment the responding EMS personnel did not find it necessary or required to transport the defendant to a hospital or for -- to get further medical treatment.
In addition, when asked as to whether he wished further medical treatment defendant refused further medical treatment and as a matter of fact he did not seek any medical treatment whatsoever regarding his alleged breathing injury.
Further, he did not complain of any breathing system -- symptoms or difficulty breathing at the scene of ...