February 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY P. ASHTON, II, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 29, 2008
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. Defendant laid down on the floor, and turned his head away from the officer.
Sanders concluded that defendant was refusing to take the breath test. Sanders asserted that, when he told defendant that he was going to charge him with refusal as well as DWI, defendant "started to reach out and polish and lick [the officer's] boot[.]"*fn1
Defendant testified that he is on a medication for stress. He said that his doctor prescribed a higher dosage. Defendant asserted that he took the medication before he got into the car. He stated that he felt "a little more [dizzy] and light-headed than usual[.]" Defendant asserted that he "started to move to a safe place and a few hours later" he was awakened by the police officer.
On cross examination, defendant said that he had one beer the night before he was arrested. He was asked why he did not pull off to the side of the road instead of stopping the car in the middle of the road. Defendant said that he was "in [a] pass-out from the medication, and [he] just thought it was a safe place - safer place than on the highway." Upon questioning by the judge, defendant conceded that the night before he was arrested, he had been in a bar where he remained until around 11:00 p.m. or 12:00 a.m.
Defendant stated that he had two beers. Defendant testified that he took his medication before he left the bar "but the medication killed [his] head[.]" According to defendant, the medication was "too strong." Defendant stated that he began to get lightheaded and "it kept getting worse and worse." Defendant asserted that he tried to "find a safe place to pull over." He stopped his car in the road at around 2:00 a.m.
The municipal court judge found defendant guilty of DWI, in violation of N.J.S.A. 39:4-50(a), and refusing to submit to a breathalyzer test, in violation of N.J.S.A. 39:4-50.2 and 39:4-50.4a. The judge found that Officer Sander's testimony was "very credible." The judge additionally found that the officer made "extraordinary efforts" to communicate with defendant when instructing him to submit to the breathalyzer test. Defendant sought de novo review by the Law Division.
Judge William J. Cook heard the appeal and filed a written opinion dated June 16, 2005. The judge concluded that the State failed to prove that defendant understood the consequences of a refusal or that he refused to take the breathalyzer test. However, Judge Cook concluded that the State had proven the DWI charge beyond a reasonable doubt. The judge made the following findings:
Having given due regard to [the municipal court judge's] opportunity to assess the credibility of Officer Sanders and [defendant], and having had the opportunity to review their transcribed testimony, I find Officer Sanders' testimony to be credible with respect to [defendant's] signs of intoxication. The arrest of [defendant] was lawful, for there was ample probable cause for Officer Sanders to believe that [defendant] was under the influence of alcohol, and that in view of his car being parked in the middle of the street with [defendant] asleep inside[,] [defendant] had operated his vehicle in an intoxicated state.
On this appeal, defendant raises the following arguments for our consideration:
THE DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED SHOULD BE REVERSED SINCE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT OPERATED A MOTOR VEHILCE WHILE INTOXICATED.
THE DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED SHOULD BE REVERSED SINCE THE LAW DIVISION FAILED TO APPLY THE PROEPR STANDARD OF REVIEW.
We have carefully reviewed the record in light of these arguments and the applicable law. We are convinced that appellant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Therefore, we affirm substantially for the reasons stated by Judge Cook in his written opinion dated June 16, 2005. We add the following comments.
Defendant argues that the evidence presented by the State failed to establish beyond a reasonable doubt that he was operating his motor vehicle. In support of this contention, defendant relies upon State v. Mulcahy, 107 N.J. 467 (1987). In our view, defendant's reliance upon Mulcahy is misplaced.
In Mulcahy, the State presented evidence that a member of the public saw the defendant drive his vehicle in the vicinity of a tavern, miss the driveway, go up onto the curb, and scrape his license plate on the curb. Id. at 470. Two hours later, the individual saw the defendant pull his car up onto the sidewalk in front of the tavern and he phoned the police. Id. at 471. Two officers responded to the scene. They saw "an inebriated patron stagger out of [the tavern and move] toward a car that was illegally parked on the sidewalk in front of the tavern." Id. at 470. One of the officers testified that "he saw the defendant approach his car, get into the car, seat himself behind the wheel, take out his keys, and start to put the keys in the ignition." Id. at 472.
"[A]t that point, the officer reached in the car window and took the keys out of [the] defendant's hand." Ibid. The engine "had not been started." Ibid. Defendant was arrested and asked to submit to a breathalyzer test. Id. at 470. When he made the arrest, the officer was not aware that a member of the public saw the defendant driving the vehicle before he entered the tavern. Ibid. The defendant stipulated that the State had presented sufficient evidence to establish all elements of the offense, other than operation of the vehicle. Id. at 472.
The Court held in Mulcahy that the evidence was sufficient to establish that the defendant had "operated" the vehicle. The Court stated that the officer did not have to see the vehicle in motion. Id. at 476. Nor was it necessary to establish that the defendant had turned the key in the ignition. The Court held that "when one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to the sobriety test required by N.J.S.A. 39:4-50.4a." Id. at 479.
The Mulcahy case is clearly distinguishable on its facts. In that case, the issue was whether the evidence was sufficient to show that an intoxicated person intended to operate a motor vehicle that had been parked on the side of the road. In this case, the issue is whether the evidence is sufficient to establish that defendant had been operating the vehicle before it came to rest in the center of Toms Avenue. Wholly aside from defendant's testimony, in which he essentially admitted that he drove his vehicle while intoxicated, we are satisfied that, the State's evidence was sufficient to establish beyond a reasonable doubt that defendant operated the vehicle before he stopped it in the middle of the road.
Our decision in State v. Dickens, 130 N.J. Super. 73 (App. Div. 1974), supports this conclusion. There, the defendant was found asleep on the shoulder of an interstate highway in the early morning hours. Id. at 75. "The headlights were on and the engine was running." Ibid. A state trooper who arrived on the scene was able to awaken the defendant and he was charged with DWI. Ibid. We rejected the defendant's contention that the evidence was insufficient to show that he intended to operate the vehicle. We stated:
[The] [d]efendant was found in his automobile on the shoulder of a superhighway, which could only have been reached by operation of the automobile to the point where it was found. [The]
[d]efendant admitted that he had been drinking in a bar in Rahway, and admitted that he was driving his care to take someone home in Piscataway when he did not feel well and stopped by the side of the road. [The]
[d]efendant was not in a place which was normal for parking. Furthermore, when [the] defendant was finally aroused from his "deep sleep," according to the state trooper, he asked, "what did he hit?" The inference is inescapable that [the] defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor. [Id. at 78.]
The facts of this case are substantially the same as those presented in Dickens. Here too, "[t]he inference is inescapable" that before defendant stopped his car in the middle of Toms Avenue, he had been operating his motor vehicle while intoxicated.