On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BMA 004-15-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Lintner and Sabatino.
Defendant, Dr. Dante Greco, appeals from his de novo conviction for refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.4a.*fn1 We affirm. We repeat the pertinent facts developed in the Municipal Court trial spanning three days.
While on patrol at approximately 10:29 p.m., Officer Derek Smith of the Maywood Police Department noticed defendant's white Mercury traveling eastbound on West Pleasant Avenue. Smith began following the Mercury. Within a short time, Smith observed defendant swerve his vehicle twice, nearly hitting the concrete barrier. Smith then saw defendant come to a stop at a red light at Maywood Avenue, straddling the straight and left turn lanes. When the light changed, defendant hesitated approximately ten seconds before moving forward.
Between the intersections of Maywood and Elm Street, defendant stopped his vehicle twice for no apparent reason. At the stop sign intersection at Elm Street, Smith observed defendant proceed into Elm without coming to a complete stop, instead stopping his vehicle after it entered the intersection. Smith then activated his siren and signaled defendant to stop.
At the open driver's side window, Smith detected a strong odor of alcohol emanating from defendant. According to Smith, defendant's eyes appeared bloodshot and watery, his eyelids droopy, and his face was flushed. Defendant also appeared sleepy to Smith. Smith twice asked defendant for his driver's license and registration. After several minutes, defendant located his driver's license but handed Smith a registration for a different vehicle.
Officers John Lynch and Wuhrl*fn2 arrived at the scene. Smith requested defendant to step out of the vehicle. As defendant exited, Smith noticed that defendant had to pull himself up using the door handle. Once defendant was outside, Smith noticed that defendant swayed from side to side and needed to lean on the front of the Mercury for support.
Smith then asked defendant to perform three field sobriety tests. Before doing so, Smith inquired whether defendant had any conditions that might affect his performance. Defendant responded that he had a neurological disorder that made it hard for him to see things at night. Defendant was unable to recite the alphabet from A to X as requested by Smith. Defendant was unable to successfully perform the Rhomberg test, which required him to stand with his feet together, hands at his side, while he closed his eyes and tilted his head back. He also failed to complete the walk-and-turn test by which defendant was instructed to place his right foot in front of his left, walk heel-to-toe for nine steps in a straight line, then turn, and take nine steps back. Lynch confirmed that defendant was unable to finish the alphabet and his speech was slurred. Lynch had to catch defendant to keep him from falling to the ground while attempting to walk heel-to-toe.
Believing that defendant was under the influence of alcohol, Smith arrested defendant, gave him his Miranda*fn3 warnings, placed him in the patrol car, and transported him to headquarters. At headquarters, Smith, a licensed breathalyzer operator, turned on the breathalyzer machine and read defendant the Miranda warning statement. Defendant responded that he understood and initialed each right but refused to sign the statement. Smith filled out the time as 10:51 p.m., after looking at his watch.*fn4
After completing the Department's Alcohol Influence Report Form, verifying that the Breathalyzer was ready, and reading the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (Standard Statement), Smith asked defendant to provide a sample of his breath. Defendant responded by saying that he wanted water. Smith advised defendant that he could not give him water at that time but would give him water after the test was completed. Smith entered defendant's response on the Standard Statement form and read the supplemental portion of the Standard Statement to him. Again, when asked to give a sample, defendant responded, "I want water."
Defendant called several witnesses to testify on his behalf. Nancy Dorer, defendant's secretary, Dr. Michael Torsiello, a colleague, who dined with defendant after attending a seminar that day, and Dr. Joel F. Lehrer, defendant's physician, testified to defendant's normally unstable gait. Lehrer testified that defendant had suffered for more than six years from a neurological disorder caused by an abnormal brain stem, resulting in an abnormal gait and imbalance. However, Lehrer conceded on cross-examination that defendant's neurological disorder would not have caused him to slur his speech. Lieutenant Raymond J. Cramer, a retired Clifton Police officer, testified that defendant had previously had difficulty walking from one point to another over the past several years.
Testifying on his own behalf, defendant stated that he was never asked to take a breathalyzer test and denied having any problem reciting the alphabet as requested. He acknowledged telling Smith, after being stopped, that he had a couple of glasses of wine with dinner. He indicated that he has "plusoric face," meaning that his face is normally red, and that ...