December 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE A. CARABALLO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Mun. App. No. 4622.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 5, 2007
Before Judges Cuff and Simonelli.
Following a de novo trial in the Law Division, defendant Jose A. Caraballo was convicted of driving while intoxicated (DWI) contrary to N.J.S.A. 39:4-50. As a third offender, the judge sentenced defendant to 180 days in the county jail, suspended his driver's license for ten years and imposed a $1000 fine, $33 court costs, $50 VCCB assessment, $75 SNSF assessment, $100 DWI fee, and revoked his motor vehicle registration certificate and plates for ten years. On appeal, defendant argues that the evidence was insufficient to allow the trial judge to find beyond a reasonable doubt that he operated a motor vehicle while under the influence of alcohol. The sentence has been stayed pending appeal. We affirm.
On January 2, 2005, at approximately 9:48 p.m., Sergeant Stanley Rodriguez observed a red Ford directly in front of him on Memorial Drive in Paterson. The red Ford swerved to the left. Both tires on the driver's side crossed the double yellow line into the oncoming lane of traffic. When the red Ford swerved over the double yellow line two more times, Rodriguez activated his overhead lights and stopped defendant's car.
When Rodriguez approached the driver's side window, he noticed that defendant was the only occupant of the car, and he smelled a strong odor of alcohol. Rodriguez asked defendant if he had been drinking. In response, defendant stated that he had "6 Lowenbraus" earlier in the evening. Rodriguez asked defendant to exit the car in order to perform field sobriety tests, but defendant was unable to stand without support from Rodriguez. The officer also noticed that defendant's eyes were bloodshot and his speech was slurred. Therefore, he promptly arrested defendant, placed him in the patrol car and drove him to the nearby police station. When they arrived at the police station, Detective Arroyo administered two dexterity tests that defendant failed to perform successfully. Defendant had previously informed Rodriguez that he would not be able to perform any dexterity tests.
In the municipal court, Sgt. Rodriguez related his observations of defendant on the street and at the police station. Detective Arroyo testified about the dexterity tests he administered to defendant.*fn1 The municipal court judge found the officer credible and found that the evidence presented by the State proved beyond a reasonable doubt that defendant was intoxicated when he operated his motor vehicle.
On de novo review, defendant argued that the credibility of the officers was in doubt because Rodriguez testified that he did not perform dexterity tests at the scene and was told by defendant that he could not perform these tests, yet Arroyo testified that he administered two dexterity tests to defendant. The Law Division judge rejected this argument and held that the evidence was sufficient to find him guilty of the charge.
Defendant reiterates the credibility argument on appeal. We find no inconsistency in the testimony of either officer. The fact that the arresting officer believed that defendant was so intoxicated that he would not be able to perform dexterity tests at the scene does not prevent another officer from attempting to administer those tests in the police station. In fact, the testimony by Arroyo complements the observations of Rodriguez that defendant was seriously incapacitated by his ingestion of at least six beers.
We, therefore, affirm the conviction of DWI. The stay of the sentence is vacated.