On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4634.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2008
Before Judges Winkelstein and Yannotti.
Defendant Michael A. Coppola was charged with driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a), refusal to submit to a Breathalyzer test, N.J.S.A. 39:4-50.4a; failure to exhibit a vehicle registration certificate, N.J.S.A. 39:3-29; failure to maintain motor vehicle insurance coverage, N.J.S.A. 39:6B-2; and careless driving, N.J.S.A. 39:4-97. The municipal court judge dismissed the vehicle registration and insurance charges; merged the reckless driving charge; found defendant guilty on the DWI and refusal charges; and imposed certain sentences.
Defendant appealed to the Law Division. Judge Ernest M. Caposela filed a written opinion and entered an order on March 29, 2007, finding defendant guilty on the DWI and refusal charges and imposing a ten-year suspension of defendant's driving privileges; 180 days of incarceration; a DWI surcharge of $200; a fine of $800; appropriate assessments; and court costs. This appeal followed. For the reasons that follow, we affirm.
At the trial in the municipal court, the State presented evidence from Officer Mark Bekier (Bekier) of the Clifton Police Department (CPD). Bekier testified that on May 14, 2005, he was on duty at approximately 2:46 a.m. when he observed a vehicle stopped in the lane of traffic on Clifton Avenue near Paulson Avenue. The vehicle was facing east and was stopped at a green light. Bekier said that when the light turned red, the vehicle proceeded through the intersection and continued on Clifton Avenue at a very slow rate of speed.
Bekier testified that the vehicle crossed the double yellow line on the road several times. Bekier followed the vehicle about five blocks. He said that it was traveling about five or ten miles per hour. Eventually, the vehicle came to a stop. The front passenger side of the vehicle was up on the sidewalk. Officer Zapola arrived on the scene, as a back up. Bekier observed the driver exit his car. Bekier identified defendant as the driver of the vehicle.
Bekier testified that defendant "was unable to keep [his] balance and he was stumbling." According to Bekier, defendant was using the vehicle to maintain his balance. Bekier said that, when he approached, he could smell a strong odor of an alcoholic beverage. Bekier also said that defendant was slurring his speech and he spoke in a very low tone. Bekier stated that, in his opinion, defendant was heavily intoxicated.
Officer John Smith (Smith) of the CPD also testified. Smith was on duty at 2:46 a.m. on May 14, 2005. He was detailed to the scene as a back up to Officer Zapola. Smith stated that defendant smelled of alcohol and he was shouting profanities at Bekier and Zapola. Smith observed Zapola's attempt to administer a one-legged stand test. Smith explained that the test requires an individual to raise either of his feet about six inches off the ground, with his hands at his side, and hold the foot in the air for about thirty seconds.
Smith testified that he did not hear Zapola's instructions to defendant but he saw defendant attempt to perform the test. He stated that defendant was "staggering and trying to keep his balance, holding onto the car while holding his foot in the air." Smith asserted that, at this point, defendant was arrested and defendant was taken to police headquarters. Smith stated that based on his experience, it was his opinion that defendant was extremely intoxicated.
In addition, Officer Ulikowski (Ulikowski) of the CPD testified that on May 14, 2005, he was called to police headquarters to operate the Breathalyzer machine. Ulikowski said that he was about five feet away from defendant. Ulikowski smelled the odor of an alcoholic beverage. He said that defendant's eyes were red, his speech was "slightly slurred," and he was "pretty cocky and combative." The officer stated that defendant was seated on a stool next to the Breathalyzer machine, and Zapola read defendant the statements on a standard form, which contained the requirements for providing a breath sample after a DWI arrest. Defendant was asked, "Now will you submit to samples of your breath?" Defendant responded affirmatively.
Ulikowski said that he began to operate the machine to begin the first test. He stated that, at the beginning of the "analysis phase" of the test, he inserts a mouthpiece into the breath tube. Ulikowski gave defendant instructions on how to blow into the machine, and defendant responded by stating, "I'm not doing that." The officer said to defendant, "[Y]ou're not gong to blow into the machine?" According to Ulikowski, defendant replied "with something along the lines of I'm not blowing into the fucking machine[.]" Zapola again asked defendant whether he would "submit to giving samples of [his] breath?" Defendant's response was no. On cross examination, Ulikowski stated that he attempted to administer the Breathalyzer test at 3:50 a.m.
Defendant presented testimony from his father, Eugene Coppola (Coppola). He said that defendant works with him in his business, Metal Light Incorporated. According to Coppola, on the evening of May 12, 2005, defendant spent the night in his home. The next day, Coppola woke defendant at around 5:00 a.m. or 5:15 a.m. They went to Saugerties, New York to look at a machine. They returned to Mahwah around 12:30 p.m. or 12:45 p.m. They had lunch and defendant left the premises around 2:00 p.m. Coppola stated that did not see his son until ...