On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2006-025.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and Lyons.
Defendant Christopher Clarke appeals from an order entered on July 31, 2006, finding him guilty of refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a,*fn1 after de novo review.
The facts giving rise to this appeal are as follows. On March 3, 2004, Montclair Police Officer Thomas Flynn (Flynn) observed two cars parked in a no parking zone near the South Park Bar & Grill. There was a conspicuous "No Parking" sign and a yellow curb indicating a no parking zone. One of the vehicles belonged to defendant.
As Flynn began to issue a summons for the parking violation, defendant appeared and told Flynn it was his vehicle. According to Flynn, defendant's breath smelled of alcohol, his eyes were "somewhat glassy," his speech was slurred, and he was swaying and staggering. Defendant's demeanor was "belligerent, upset and angry." Flynn thought that defendant was under the influence of alcohol and told him not to drive the car and to have someone else move it from the no parking zone. Defendant ignored the officer, got into the car, put the keys in the ignition, and began to move it in reverse. When Flynn reached into the vehicle for the keys, defendant struck him. Flynn then attempted to remove defendant from the vehicle and arrest him. Defendant continued to struggle until the officer got him out of the car and on the ground. During the struggle, defendant had been reaching toward the left side of the driver's seat, where Flynn found a knife over fifteen inches in length after he had removed defendant from the vehicle. A second knife was also found on the side of the driver's seat. Defendant was placed in the back of Flynn's patrol car. Flynn testified that he was "overwhelmed" by the strong odor of alcohol from defendant while they were in the patrol car. Flynn then transported defendant to police headquarters. Flynn testified that defendant was "swaying back and forth in the rear of the -- the car. . . .
[H]e was bobbing, weaving, even sobbing at one point." At police headquarters, Flynn read defendant the entire standard statement including the "Additional Statement" section regarding the breathalyzer test and the opportunity to have a blood test. Defendant refused the breathalyzer test, after which he complained of chest pains and shortness of breath. The first aid squad transported defendant to Mountainside Hospital. Flynn sent a standard blood collection evidence kit with a backup officer, who went to the hospital to guard defendant. At the hospital, defendant refused the blood test.
When defendant was returned to police headquarters from the hospital, approximately five hours after the initial stop, defendant said he wanted to take the breathalyzer test. The test was not given to him because of the lapse in time since the incident.
At trial, defendant produced two witnesses who claimed they had been in the bar before the incident. One testified defendant did not appear intoxicated but he did not know how many drinks defendant had that night. The other said that he saw defendant "sipping" his drink and that defendant "had one drink, maybe," before the incident.
Defendant also produced a private investigator who testified that he saw a videotape of the incident. The municipal court judge found, however, that the tape was very brief and "[i]t's a tough tape to make much out of." Defendant also testified on his own behalf, stating that he had not even finished one drink that night. He further claimed that he was never offered the opportunity to take the breathalyzer test before he was taken to the hospital and that he would have taken it if it had been offered to him. He claimed that he had previous altercations with Flynn and that Flynn offered him the breathalyzer test when he returned from the hospital and he did not refuse.
The municipal court found defendant guilty of refusal. After a de novo review, the Law Division found that "[o]n two occasions the defendant was asked to take a breathalyzer test. He was advised of the consequences of his failure to do so, nevertheless continued in his failure until some many hours later -- way too long to effect a cure, if there ever is one, of a refusal charge."
In this appeal, defendant ...