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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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