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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...