February 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JACOB J. BAUER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. A-46-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 20, 2007
Before Judges Lisa and Simonelli.
After a trial de novo in the Law Division, defendant, Jacob J. Bauer, appeals from his conviction for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50(a), and his accompanying sentence as a third-time offender pursuant to N.J.S.A. 39:4-50(a)(3). On appeal, defendant presents the following arguments:
I. The trial court erred in failing to grant Defendant's Motion to Suppress Evidence of breathalyzer test results because no probable cause existed for his arrest, and alternatively, because the breathalyzer test was improperly administered.
A. The Defendant should prevail on his Motion to Suppress Evidence because the arresting officer failed to perform field sobriety tests, and because the officer otherwise lacked probable cause to perform a warrantless arrest of the Defendant.
1. The officer should have performed field sobriety tests before arresting the Defendant for driving while intoxicated.
2. The officer otherwise lacked probable cause to arrest the Defendant for driving while intoxicated.
B. The Defendant should prevail on his Motion To Suppress Evidence because the breathalyzer test was improperly administered.
II. The trial court erred in convicting Mr. Bauer as a third-time offender for Driving While Intoxicated because his first conviction was both uncounseled and uninformed of the right to counsel, in violation of the New Jersey Supreme Court's decision in State v. Hrycak, [84 N.J. 351 (2005)].
A. The Defendant satisfies the first element of the Hrycak test because he did not receive notice of the right to counsel in his first conviction for driving while intoxicated.
B. The Defendant satisfies the second element of the Hrycak test because he was indigent at the time of his first conviction and the conviction resulted from the absence of notice and assignment of counsel, and alternatively, because he was not indigent but nonetheless lacked notice and knowledge of the right to counsel, resulting in a miscarriage of justice.
Based upon our review of the record and applicable law, in light of defendant's contentions, we affirm.
Defendant filed a pre-trial motion to suppress evidence of his breathalyzer results. Westville Borough Municipal Court Judge Thomas North held a hearing on August 10, 2005.*fn1 Westville Patrol Officer Eric Hibbs testified that on May 6, 2005, at 4:16 a.m., he was dispatched to an accident at Almonesson Road and Hunter Avenue, Westville. The officer arrived at the scene within a minute of the dispatch and saw defendant standing next to the driver's side door of a white Chevy Blazer that was resting up against a telephone pole, which the vehicle had struck and split. The officer described the accident as a "fresh accident" based upon his experience dealing with accidents and his observation that the vehicle's engine was still running.
Defendant advised Hibbs he was involved in the accident, but was not injured. While talking to defendant, Hibbs observed that his speech was slurred and hoarse, his face was flushed, his eyes were bloodshot and watery, there was an odor of alcoholic beverage on his breath, and he was swaying. Defendant responded affirmatively when Hibbs asked if he had been drinking, and said he fell asleep and struck the telephone pole. At that point, Hibbs formed the opinion that defendant was intoxicated. The officer did not administer any field sobriety tests because they were not required. He determined it was "sufficient enough" to arrest defendant for DWI based upon his experience with intoxicated persons, his observations of defendant, and the fact this was a one-vehicle accident. Hibbs placed defendant under arrest and into a patrol car, advised him of his Miranda*fn2 rights, and transported him to police headquarters. While en route to police headquarters, the odor of alcoholic beverage filled the interior of the patrol car.
At police headquarters, Patrol Officer James Mealey administered a breathalyzer test at 4:58 a.m., which yielded a reading of .21%, and another test at 5:07 a.m., which yielded a reading of .20%. Hibbs issued defendant summonses for DWI and careless driving.
Judge North found that Hibbs's testimony was "very credible"; "candid"; and "he was doing his very best to be truthful and credible in trying to recall what happened[.]" The judge concluded there is no requirement to administer field sobriety tests, Hibbs had probable cause to arrest defendant for DWI, and the breathalyzer test was properly administered.
At the trial on August 10, 2005, the parties jointly stipulated to and admitted documents, including Mealey's current breathalyzer operator's card, the investigation report, the drinking and driving report, the breathalyzer checklist, and the breathalyzer test results. Both sides rested without producing any additional evidence. Based on the pre-trial testimony and the jointly submitted documents, Judge North found defendant guilty of DWI and dismissed the careless driving charge.
Prior to sentencing, defendant argued he should be sentenced as a second-time offender because he was not advised of his right to counsel or provided the right to have counsel represent him for his first DWI conviction on April 29, 1997, as required by Hrycak. Because defendant had not yet obtained the transcript from that proceeding to support his contention, the judge sentenced him as a third-time offender. The judge suspended defendant's driving privileges for ten years; sentenced him to a six-month term of imprisonment; imposed fines, court costs and an assessment; ordered him to attend twelve hours of alcohol counseling; and to have an ignition lock installed on his car for three years. The judge granted a stay pending appeal to the Law Division.
On appeal to the Law Division, Judge Tomasello's independent findings included the following:
THE COURT: Yeah. Well, with respect to the probable cause, I'm satisfied that given the facts of this case -- there had been an accident. The Defendant was standing next to the vehicle. He's swaying, he's slurring his words. His eyes are watery and bloodshot.
He admits to drinking. You know, whether or not the State goes forward with additional tests is more fluff, I think. There's certainly probable cause to require him to take the Breathalyzer test. So I'm satisfied that there's more than sufficient probable cause with respect to the test.
The judge found defendant guilty of DWI and remanded the matter to the municipal court for re-sentencing because of the Hrycak argument.
Judge North held a hearing on December 27, 2006. Defendant still did not have the transcripts from his first DWI conviction. After defendant entered a conditional guilty plea to DWI, Judge North imposed the same sentence, and stayed it, pending appeal. Defendant appealed directly to us, and we accepted the appeal. Defendant has included in his Appendix the transcript from his first DWI conviction.
On appeal from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Id. at 162. However, as with the Law Division, we are not in as good of a position as the municipal court judge to determine credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We "do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We should give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Based upon these standards and our review of the record, we conclude there is sufficient credible evidence to support Judge Tomasello's finding that Hibbs was not required to perform field sobriety tests and had probable cause to arrest defendant for DWI. To make an arrest for DWI, the arresting officer need only have "'reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Reasonable grounds can be based solely on the officer's observations. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that "observational evidence" may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI."), aff'd, 293 N.J. Super. 535 (App. Div. 1996); see State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that defendant's slurred speech, loud and abusive behavior, disheveled appearance, red and bloodshot eyes, together with the strong odor of alcohol were sufficient to sustain a DWI conviction); see Moskal, supra, 246 N.J. Super. at 20-21 (holding that defendant's flushed face, "drooping and red" eyes, the strong odor of alcohol, and an admission of drinking established probable cause for arrest).
Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these comments.
Defendant does not challenge Mealey's certification, the administration of the two breathalyzer tests, or the test results. He only challenges the time limit between the tests, which was nine minutes. Defendant contends "It is standard practice that the second Breathalyzer test, taken by the same instrument, is to be administered a full fifteen (15) minutes after the first test. This practice serves the purpose of allowing the breathalyzer machine to fully reset, so to give a more accurate result." Defendant produced no evidence to support this contention, nor is it supported by any law.
Regarding defendant's sentence, our review of the record of defendant's first DWI conviction indicates he was represented by counsel. Defendant had been charged with DWI and using another's I.D. card. The municipal court judge appointed a municipal public defender to represent defendant, and defendant chose to proceed with the public defender. The public defender "advised [defendant] of everything," and negotiated a minimum penalty for the DWI, a plea to a local ordinance, and dismissal of the other charge.
The judgment of conviction is affirmed and the stay of sentence is vacated.