On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 07-2005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Yannotti.
Anthony P. Ashton, II, appeals from a judgment entered by the Law Division on June 20, 2005, which found him guilty of driving while intoxicated (DWI), in violation of N.J.S.A. 39:4- 50(a); suspended his driving privileges for ninety days; required his attendance at an Intoxicated Drivers Resource Center; and ordered payment of a $256 fine, a $200 driver's DWI surcharge, assessments and costs. For the reasons that follow, we affirm.
At the trial in the municipal court, the State presented testimony from Officer James Sanders of the Pennsauken Police Department (PPD), who has been employed by the PPD since 1992 and assigned to the department's traffic division since 1994. Sanders testified that on October 30, 2004, at approximately 7:27 a.m., the department received a report that a vehicle was parked in the middle of Toms Avenue and a person was asleep behind the wheel. Sanders responded to the area about three or four minutes later.
Sanders observed a white Honda parked in the roadway with its taillights illuminated. He said that it was "just becoming daylight." Sanders approached the vehicle and saw that the headlights were on. A white male was seated in the driver's seat. Sanders said that in that particular area, Toms Avenue is about the width of three cars. He stated that the vehicle was "almost directly in the center of the roadway."
Sanders knocked on the window of the car. The driver appeared to be asleep and the vehicle was in "park." Sanders said that the driver did not respond. Sanders identified defendant as the person who was sitting in the driver's seat. Sanders opened the door to the car, which was unlocked, and he detected the odor of an alcoholic beverage on defendant's breath. Defendant turned to the officer, pointed to his ear, and indicated that his hearing was impaired. According to Sanders, defendant's eyes were bloodshot and watery.
Sanders asked defendant to exit the vehicle. As defendant stepped out, he held onto the roof of the car. Sanders testified that defendant "was having a hard time keeping his balance[.]" Defendant started to sway and he had to grasp the roof of the car to keep from falling. Sanders asserted that defendant responded to his verbal commands. Sanders instructed defendant to perform a field sobriety test, and showed him what was expected. Defendant told Sanders that he would not perform the test. Sanders then placed defendant under arrest for DWI.
With the assistance of other officers, Sanders transported defendant to police headquarters. There, Sanders endeavored to inform defendant of his Miranda rights, as set forth on the PPD's statement of rights form. Sanders started to read the form to defendant but defendant did not respond. Sanders instructed defendant to read the form and then handed it to him. Defendant took the from and started to go through it.
At some point, defendant indicated that he wanted to consult an attorney. Sanders provided defendant with a form which stated that his right to consult a lawyer did not apply to the taking of breath samples. He told defendant to read the form. Sanders said that defendant appeared to be reading the form and marking it with a pen.
Defendant asked for water. Sanders told defendant that he could not have any water until after he provided his breath samples. Sanders pointed defendant to the section of the form which stated that he would be issued a summons if he did not unconditionally submit samples of his breath. Defendant appeared to be reading the form. He again asked for water.
Sanders instructed defendant to read another section of the form which repeated the statement that a summons would be issued if defendant did not unconditionally agree to provide samples of his breath. Sanders testified that it appeared to him that defendant was reading the form. Defendant simply said, "[y]ou assume." Sanders asked him to repeat what he said, and several times defendant stated, "[y]ou assume." Defendant then handed the form back to Sanders and stated that he could not read. Defendant also stated that he wanted to make a phone call but, when Sanders asked him for the phone number, defendant did not respond.
Sanders testified that he stood directly in front of defendant and attempted to read the statement of rights form so that defendant could read his lips. However, defendant kept turning away. Sanders tried to face defendant but defendant came off the bench where he had been seated and handcuffed. ...