March 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS W. LOGAN, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 intoxicated offense to the Law Division.
On April 13, 2007, the Law Division heard the driving while intoxicated charge by way of a de novo review of the municipal court record. However, the Law Division was appropriately concerned with the municipal court judge's statements regarding defendant's credibility based on defendant not volunteering an explanation for his behavior at the time of his arrest. The Law Division appropriately stated before the hearing began, "[a]s to the comments by [the municipal court judge] as to defendant's comments for failure to say things at the scene and so forth, I am disregarding that." The Law Division went on to say that it would not consider those comments from the municipal court judge and it would not consider any of the testimony and cross-examination of defendant concerning his failure to volunteer information at the time of his arrest. The Law Division then reviewed the record and heard arguments of counsel.
The Law Division made detailed and thorough findings of fact. It gave weight to the failure of defendant to perform any of the physical tests on the scene after being stopped for speeding. The Law Division found that, while none of the tests in and of themselves were determinative, when viewed along with the observations of Little, an almost twenty-year veteran who had made over 200 driving-while-under-the-influence arrests, they proved that defendant was under the influence. The Law Division looked at the totality of the circumstances and the entire proofs, and after reviewing them and considering the officer's testimony, it concluded that the State had met its burden of proof beyond a reasonable doubt. The Law Division again stated it was not considering the municipal court's decision at all because of its concern with the municipal court judge's statements concerning defendant's failure to volunteer an explanation on the scene.
The Law Division did, moreover, conclude that defendant's explanations were not credible because it found that he was "not so sick that he went home after work, nor did he go home after work and go to his ex-wife's, but went and had a few beers. That doesn't sound like a cure for the virus or for lack of sleep or . . . for his bad hips." The Law Division did note that when asked if defendant would do the one-leg stand, defendant responded that he "couldn't do the test if he was stone sober." The Law Division explicitly said that defendant's silence at the time of the incident could not be used against him.
The Law Division, therefore, found defendant guilty. Because defendant was a third-time offender, the court sentenced him to 180 days in the county jail, which may be lowered for each day not exceeding ninety days served for which defendant participates in an in-patient drug or alcohol rehabilitation program approved by the Intoxicated Driver's Resource Center. Defendant was also fined $1000, required to spend twelve hours at the Intoxicated Driver's Resource Center, fined and assessed the appropriate costs and penalties, and had his driving and registration privileges suspended for ten years. This appeal ensued.
On appeal, defendant raised the following points for our consideration:
THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION BECAUSE IT WAS NOT PROPER FOR THE TRIAL COURT JUDGE TO USE THE HORIZONTAL GAZE NYSTAGMUS TEST AS PART OF THE BASIS FOR FINDING DEFENDANT-APPELLANT GUILTY OF N.J.S.A. 39:4-50.
THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION BECAUSE THE STATE VIOLATED DEFENDANT-APPELLANT'S FIFTH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND HIS PRIVILEGE AGAINST SELF-INCRIMINATION UNDER NEW JERSEY COMMON AND STATUTORY LAW.
A. It was unconditional [sic] for the municipal court judge to infer Defendant's guilt based on his silence at the time of the incident.
B. Because the Law Division judge deferred to the municipal court judge's determination of the credibility of witnesses despite the fact that the municipal court judge unconstitutionally assessed credibility on the basis of Defendant's silence, it was incurable error for the Law Division judge to base his determination of guilty on the municipal court's assessment of witness credibility.
Defendant argues that the Law Division's decision should be reversed because it was improper for the court to use the horizontal gaze nystagmus test as a basis for finding defendant guilty of driving while intoxicated. We disagree. Defendant relies on State v. Doriguzzi, 334 N.J. Super. 530, 539 (App. Div. 2000). Doriguzzi provides that where there was no breathalyzer test in evidence, where the horizontal gaze nystagmus test results were an integral part of the decision finding defendant guilty, and absent a hearing and determination that the horizontal gaze nystagmus test was reliable as a scientific test, a conviction should be reversed and the matter remanded for trial de novo without consideration of the test. Id. at 546-47. In this case, however, we do not find that the test results were an integral part of the decision finding defendant guilty. Rather, after reviewing the entire record and the comments of the Law Division, we note that the court relied upon the following facts taken as a whole: defendant was speeding; he admitted he had a number of beers; his hands were fumbling and slow as he tried to produce his motor vehicle documents; he smelled of alcohol; when he exited the vehicle, he had to hold the vehicle for stability; he was swaying; his knees were sagging; and he had his feet wide apart for balance. His speech was slurred, hoarse, and slow. Furthermore, defendant refused the one-leg stand, saying that he could not do it even if he was "stone sober." The arresting officer had extensive experience, with over 200 driving-while-under-the-influence arrests, and was of the opinion that defendant was intoxicated. On the way to the station, defendant asked for the officer to take him home, and he refused the breathalyzer test. The Law Division clearly found defendant's explanation to be incredible. Based on this overwhelming record supporting the Law Division's findings, we cannot find the horizontal gaze nystagmus test to have been an integral part of the Law Division's decision.
Defendant also argues that we should reverse the Law Division's decision because the State violated defendant's Fifth Amendment right when the municipal judge drew a negative inference from defendant's failure to provide an explanation at the time of his arrest contrary to State v. Deatore, 70 N.J. 100 (1976). We agree with defendant that the municipal court judge impermissibly drew an inference that defendant's explanation was not credible because he did not volunteer an explanation to the authorities at the first opportunity. However, defendant was afforded a trial de novo on the record by the Law Division pursuant to Rule 3:23-8. Most importantly, the Law Division conducting the de novo trial alertly and insightfully at the outset recognized the municipal court judge's impermissible finding and pointed out that it would review the municipal court record, but exclude not only the municipal court judge's comments, but the questions and answers directed to defendant regarding his silence at the scene as well.
On a de novo review on the record, the Law Division is "obligated to make independent findings of fact and conclusions of law, determining defendant's guilt independently . . . ." Pressler, Current N.J. Court Rules, comment 1.2 on R. 3:23-8 (2008). While normally the Law Division is to give deference to the municipal court's credibility findings, we note it must give due, although not necessarily controlling, regard to the opportunity of a municipal court judge to assess the credibility of witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). In this case, the Law Division, recognizing the difficulty with the municipal court judge's credibility determination, carefully reviewed the record and appropriately not only did not give deference to the municipal court judge's credibility assessments, but excluded them in their entirety. Consequently, we find the Law Division's findings of fact and conclusions of law to have been reached independently on sufficient credible evidence present in the record. See State v. Locurto, 157 N.J. 463, 470 (1999); Johnson, supra, 42 N.J. at 161-62.
Defendant's conviction is, therefore, affirmed.
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