February 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEPHEN A. ADRIAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BMA-001-07-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2008
Before Judges Axelrad and Messano.
Defendant Stephen Adrian appeals from the November 3, 2006 judgment of conviction entered in the Law Division following de novo review, R. 3:23-8, from the Hackensack municipal court, for operating a motor vehicle while under the influence of alcohol (DWI), N.J.S.A. 39:4-50. The Law Division judge imposed the same sentence for a third-time offender as the municipal court judge had imposed: 180 days incarceration, crediting defendant with ninety days spent in a Salvation Army Program, with the balance to be served in county jail; ten years' driver's license and registration suspension; a $1,000 fine, a $50 Violent Crimes Compensation Board assessment, a $200 DWI surcharge, a $75 Safe Neighborhoods Fund Services assessment, and $30 in court costs. By order of November 6, 2006, the court granted defendant's application for bail and stayed only the jail portion of defendant's sentence. On appeal, defendant argues the observations of the arresting officer were insufficient to establish guilt beyond a reasonable doubt. We disagree and affirm.
On the evening of March 7, 2004, Lodi Police Officer Russell Inserra responded within one or two minutes to a radio report of a single vehicle accident on Outwater Lane, a straight and level roadway with one lane of traffic in either direction. The officer observed defendant behind the wheel of a severely damaged pickup truck that had struck two power poles and snapped one of them in half. When the officer questioned defendant, he detected an odor of alcohol emanating through the open window of the cab and further observed that the driver's eyes were red, his face was flushed, his speech was slow and slurred, and his clothing was mussed. The officer asked if he had been drinking that evening and defendant admitted to consuming one glass of wine.
Based on these observations, Officer Inserra, who had assisted in or effectuated over 100 DWI arrests during his ten and one-half years on the force, believed defendant might be intoxicated, so he asked him to exit the vehicle to perform field sobriety tests. When defendant exited the truck to perform the field sobriety tests, he had to lean on it to keep his balance and stood with his feet wide apart for stability. Officer Inserra then gave defendant directions and demonstrated how to perform the walk-and-turn test. Officer Inserra asked defendant if he understood, to which defendant responded by staring at the officer and "looking through" him, which led the officer to believe that defendant did not understand the instructions given. At this point, Officer Inserra aborted the field sobriety tests due to safety concerns after noticing power lines on the wet ground within feet of where they were standing. The officer arrested defendant for driving while intoxicated and transported him to headquarters. No field sobriety tests were administered at the station. Two breathalyzer tests were administered. Summonses were issued for DWI and other motor vehicle offenses.
Defendant did not testify at trial. He presented an expert witness to challenge the manner in which the officer had administered the breathalyzer test. The municipal court judge found defendant guilty of DWI under both the per se and subjective prongs of N.J.S.A. 39:4-50. He found defendant not guilty of the other motor vehicle offenses.
On de novo review, the Law Division judge found the State had not proved the arresting officer was a qualified breathalyzer operator at the time of the accident because of his failure to produce a recertification card and thus could not satisfy its burden of proof under the per se prong of N.J.S.A. 39:4-50. However, Judge Austin found defendant guilty based upon the officer's observations, i.e., the subjective prong of N.J.S.A. 39:4-50. The judge commented on the fact that no field sobriety or coordination tests were given at the scene or at headquarters, but noted that such is not required although it may provide additional assistance to the officer in assessing a driver's condition. The judge also made the point that many of the physical conditions and observations described by the officer were not in and of themselves conclusive evidence of intoxication, but when considered cumulatively, they demonstrated beyond a reasonable doubt that defendant operated a motor vehicle while under the influence of alcohol. Judge Austin found:
First, the vehicle was in a single-car accident. . . . The fact that he was involved in an accident in and of itself is not an indication that someone is under the influence. It's one indication.
The officer came to the scene and in speaking to the defendant noticed, and I emphasize, a strong odor of an alcoholic beverage on defendant's breath. In and of itself it may have been that the defendant said I had one drink and it may have been close in time to the officer getting there, but it may not have been. We don't know.
And the fact that someone has a strong odor of an alcoholic beverage on their breath in and of itself does not mean that someone should be found guilty of driving under the influence. It's just an indication.
There was further testimony that the defendant's clothes, clothing was mussed.
Again, mussed clothing in and of itself is not an indication necessarily that someone is under the influence of an alcoholic beverage. It's an indication that someone may be under the influence of [an] alcoholic beverage.
[D]efendant's eyes were red or blood shot. I don't know what bloodshot means but they were red and having eyes red is another indication of, an indicia of someone that's under the influence of alcohol.
Again, the testimony continued. Subject to cross-examination, un-refuted, defendant's face was flushed. And I'm going to continue with five or six more observations testified to by the officer that in an of themselves individually may not be an indication of someone who is under the influence of an alcoholic beverage but certainly cumulatively there can be no other conclusion.
The defendant's face was flushed. His speech was slow. We don't know if in normal speech patterns how [defendant's] manner of speech would be. What may appear slow may be his normal speech pattern. But it is one indication of if someone is speaking what appears to an officer to be slowly, that he may be under the influence of an alcoholic beverage.
In and of itself, again, not the only indication for an individual or a court to conclude that someone is under the influence.
An officer has a right to use his common sense in everyday experience to determine what normal rate of speech is, but in addition to the speech being slow, the testimony was the defendant's speech was also slurred. Speech being slurred is an observation by an officer based on his experience. We don't know if this defendant's speech is normally slurred. Does he have a speech impediment. Does he always speak in that manner and tone. But it is one indication that someone may be under the influence of an alcoholic beverage.
Further testimony of the police officer. The defendant had to lean for balance. I know that if someone leans for balance they may just have poor balance.
But there was an observation in the testimony this defendant leaned for balance.
This officer further testified that in addition to leaning for balance the defendant had to spread his legs wide apart to further maintain his balance, to maintain his stability. Wide apart is a subjective observation but it's an observation that his Court gives great weight to.
And then we come to the officer's observation of this defendant when the officer gave instructions on how to perform the walk-and-turn test, what I would normally call the heel-to-toe test. And although most of the tests were not done it was clear from the testimony that this defendant stared at the officer and did not appear to comprehend the instructions for the walk-and-turn.
There's no indication that this defendant did not speak English. There's no indication why he would not understand a plain English instruction. It's very obvious to this Court that if someone appears not to comprehend instructions it may be that their thinking is impaired due to the result of alcohol being ingested.
And finally when asked if the defendant had been drinking he was [somewhat] candid. He said he was at Chumley's . . . in Saddle Brook.
The defendant [told the officer] he had only one drink. . . .
Taking these eleven observations that were testified to by the officer cumulatively not individually, not in and of themselves but eleven observations cumulatively, I find it's very difficult for me to find anything other than based upon the observations of this officer, that the defendant was under the influence of an alcoholic beverage. So although I cannot find the per se reading . . . I find that based upon the testimony and observations of this police officer, and based upon common sense and life experiences, the officer has a right to make these observations and I place great weight on them.
Cumulatively, I find the defendant to have been under the influence and driving under the influence on the night i[n] question. Accordingly, I find him guilty de novo.
Defendant's arguments on appeal are essentially credibility challenges that the officer's observations, without having observed defendant driving and without having performed any balance tests, are insufficient to establish guilt beyond a reasonable doubt. Defendant also attempts to impugn Officer Inserra's overall credibility based on his purported lack of an updated breathalyzer card at the time of the incident.
Our scope of review is limited to determining whether the findings of the Law Division judge could reasonably have been reached on sufficient credible evidence in the record, considering the proofs as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). From our review of the record we are satisfied Judge Austin carefully scrutinized the testimony and evidence before him in making his factual findings, and the record clearly supports the finding that defendant drove while under the influence of alcohol. Accordingly, we discern no reason to disturb these findings on appeal. Ibid.
It is manifest that no single observation or field sobriety test can be dispositive on the issue of whether a defendant operated a motor vehicle under the influence of intoxicating liquor as prohibited by N.J.S.A. 39:4-50. Rather, the court should examine the totality of the circumstances to determine whether a defendant operated a vehicle under the influence. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995) (using totality of the circumstances to support a DWI conviction) (citing State v. Tamburro, 68 N.J. 414, 421 (1975)), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). In accordance with this principle, Judge Austin evaluated the following cumulative factors observed by Patrolman Inserra and concluded that under the circumstances, even in the absence of field sobriety tests, they supported a finding beyond a reasonable doubt that defendant operated the truck while under the influence of alcohol: an accident that caused property damage, see N.J.S.A. 39:4-50 (property damage in accident is factor for police to consider in assessing DWI); the smell of alcohol; red eyes; a flushed face; mussed clothing; slow, slurred speech; an admission of drinking; an inability to stand; and defendant's failure to understand the officer's direction regarding the heel-to-toe test. The officer's testimony was unrefuted and the court expressly found him credible. Whether or not the officer had obtained an updated breathalyzer card had no bearing on his ability to make observations of defendant's physical characteristics.
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