March 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS B. URMSTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 10, 2008
Before Judges Collester and C.S. Fisher.
Defendant appeals from his conviction for driving while under the influence, N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. We affirm.
The evidence adduced at a municipal trial reveals that, on May 2, 2006, Pompton Lakes Police Officer Frank Jaconetta was dispatched to the scene of a domestic dispute. While en route, Officer Jaconetta received another call from his dispatcher indicating that a participant in the domestic disturbance had left the scene in a green van. Officer Jaconetta soon spotted the van, which was being operated by defendant, cross over double yellow lines. After making a left turn, the van jumped up on and back off the curbing along the side of the road as it came to a rest.
Upon asking for credentials, Officer Jaconetta observed that defendant's eyes were droopy and watery, his hands were "fumbly," his speech was slurred, and his face was very red, like "a Red Delicious apple." The officer also testified that the smell of alcohol on defendant's breath was "pretty intense." Defendant admitted to having "several glasses of wine," and commented that he knew better and "shouldn't have got in the van." This suggested to Officer Jaconetta that defendant was under the influence. Accordingly, he asked defendant to step out of the vehicle and perform field sobriety tests.
Defendant was unable to complete the test that required he lift a foot and count aloud while keeping his hands at his side.
He also commenced the walk-and-turn test before the officer could complete the instructions and then "only took seven steps forward, never counting out loud, and he never touched heel-to- toe." As a result, defendant was arrested for driving while under the influence.
The municipal judge found defendant guilty based upon the officer's observations. On de novo review, the Law Division judge also found defendant guilty and imposed the same sentence imposed by the municipal judge. Because this was defendant's third conviction for driving while under the influence, the judge sentenced him to a jail sentence of 180 days with the stipulation that 90 of those days could be served in an inpatient intoxicated driver resource center program. Defendant's license was also suspended for a ten-year period. In appealing the judgment, defendant presents the following arguments for our consideration:
I. THE CONVICTION MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED SINCE THE STATE FAILED TO PROVE THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS.
II. THE CONVICTION MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED SINCE THE LAW DIVISION JUDGE PERMITTED OFFICER KLEPACY TO TESTIFY AS TO HIS NET OPINION THAT THE DEFENDANT HAD FAILED THE TWO FIELD SOBRIETY TESTS WITHOUT ANY RECITATION AS TO WHAT HE OBSERVED THAT LED TO THE CONCLUSION.
III. THE DUI CONVICTION SHOULD BE REVERSED SINCE 1) ONLY TWO FIELD SOBRIETY TESTS WERE GIVEN AND THEY WERE NOT CONDUCTED PROPERLY; AND 2) THE NATIONAL HIGHWAY TRANSPORTATION SAFETY ADMINISTRATION TESTS WERE NOT ADMINISTERED AND THE TESTS THAT WERE GIVEN ARE NOT RELIABLE.
IV. THE DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE FIELD SOBRIETY TESTS THAT WERE GIVEN WERE NOT VIDEOTAPED (NOT RAISED BELOW).
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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