On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-38-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges R. B. Coleman and Lyons.
Defendant Thomas W. Logan appeals from a judgment of conviction finding him guilty of driving while intoxicated, contrary to N.J.S.A. 39:4-50. Because we find that the horizontal gaze nystagmus test was not an integral part of the Law Division's decision finding defendant guilty, and that the Law Division's assessment of defendant's credibility was based solely on permissible and competent evidence, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On April 4, 2006, at approximately 11:40 p.m., Corporal Thomas Little (Little) of the Franklin Police Department observed defendant traveling at a high rate of speed in a grey Honda. Little activated his emergency lights and chased defendant's vehicle for approximately one-quarter of a mile at sixty miles per hour. Defendant pulled to the side of the road and Little approached defendant's vehicle. As defendant attempted to present his license, registration, and insurance card to Little, Little observed defendant's hand movements to be slow and fumbling. Little also detected a strong odor of an alcoholic beverage. Defendant then told Little that he was on his way home. As defendant spoke, Little noticed defendant's speech to be slurred and his voice hoarse. When questioned, defendant informed Little that he had consumed a few beers.
At that time, Little asked defendant to step out of his vehicle so that he could perform certain tests. As defendant stepped from the vehicle, he leaned on the door for assistance.
He also walked with his knees sagging and his feet wide apart, and while standing still, he swayed.
Little directed defendant to perform a one-leg stand test. Defendant refused to do the test saying, "I couldn't do this test if I was stone sober." Little then instructed defendant to perform the walk and turn test. Defendant was unable to keep his balance while listening to the instructions; could not touch heel to toe; lost his balance while walking; used his arms for balance; stopped walking to steady himself; and lost his balance while turning. The walk and turn standardized field sobriety test score was six, with the decision point being two. The officer also administrated the horizontal gaze nystagmus test. Defendant scored a five, with the decision point being four.
As a result of Little's observations and the results of the tests, defendant was arrested for drunk driving. He was also charged with speeding in violation of N.J.S.A. 39:4-98. While defendant was being transported to police headquarters, Little advised defendant of his Miranda rights. Defendant stated that he understood his rights. The officer noticed a strong odor of alcohol filling the interior of the patrol unit. Defendant said nothing during the trip other than asking Little if he could just drive him home. Upon arriving at police headquarters, defendant was read the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle. He refused to submit to a breathalyzer test and refused to answer the questions. After Little had prepared the breathalyzer test, he then again asked defendant if he would submit to the test and defendant again refused. Defendant refused to respond to the questions asked pursuant to the Drinking Driver Questionnaire, and he refused to sign that he had been advised of his Miranda rights. Defendant was then charged with driving while intoxicated, contrary to N.J.S.A. 39:4-50, refusing a breathalyzer test in violation of N.J.S.A. 39:4-50.4a, and speeding in violation of N.J.S.A. 39:4-98.
On June 20, 2006, defendant was tried in municipal court. Defendant stipulated that he was driving sixty miles per hour in a forty-five-mile-per-hour zone, but entered not guilty pleas to the other charges. At the trial, the defense stipulated to certain facts and then Little testified. Defendant testified in his own defense. Defendant explained that he had been working on his ex-wife's home after completing a full day of work, and he had only slept six hours over a period of the last three days at the time of his arrest. He also testified that at the time of his arrest, he was suffering from a stomach virus, and an inflammation of an old hip ailment. He stated that he finished work on his ex-wife's house at around 8:00 or 8:30 p.m., and stopped at a local tavern for a few drinks before driving home.
The municipal court judge reviewed the stipulated facts, Little's testimony, and the testimony of defendant. The judge stated that as to the speeding offense, it would be merged into the larger offenses. The judge did not accept defendant's explanations that his medical condition, lack of sleep, and hip ailment explained his inability to perform the tests at issue. The judge also stated that he would not give much weight to defendant's explanations outlined in his testimony because they had not "been offered as an explanation to the officer at the time." The municipal court judge went on to say:
It's very difficult for me to give the defendant the benefit of the reasonable doubt when he doesn't cooperate at the time therefore opening the door to create any story between that date after the stop and the day of the trial to -- to fill in the gaps and figure out and come up with an explanation as to what was going on.
The municipal court judge found defendant guilty of driving while intoxicated and refusing the breathalyzer test. Defendant only appealed the driving while ...