On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Appeal No. 80-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Defendant Patrick D. MacMenamin appeals from his May 4, 2007 conviction at a trial de novo in which the Law Division found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breathalyzer examination, N.J.S.A. 39:4-50.2.*fn1 On the DWI conviction, the Law Division imposed appropriate monetary fines and penalties and suspended defendant's driving privileges for a period of ten years because of his two prior DWI convictions.*fn2 The judge also imposed a mandatory jail term of 180 days. On the refusal charge, the Law Division imposed appropriate monetary fines and penalties as well as a ten-year suspension of defendant's driving privileges, to run consecutive to the ten-year suspension imposed on the DWI conviction. We affirm.
Defendant argued in the municipal court, and the Law Division and again argues before us on appeal, that he was not the driver of the vehicle on the night in question. Much of the trial testimony is not in dispute. We confine our review of the record to the evidence that pertains to the question of whether the State proved beyond a reasonable doubt that defendant was the operator of the vehicle.
At approximately 9:00 p.m. on July 30, 2006, three Absecon police officers, Robert Ketschek, Detective Robert Ponzetti and Patrolman Gorham*fn3 were dispatched to an accident scene at the corner of Haddon Avenue and Route 30 in Absecon. Upon arrival, they discovered a Ford Explorer that had driven off the road and was resting against some trees. The vehicle had no occupants. Patrolman Gorham located defendant standing approximately 150 feet from the scene of the accident in front of a Budget Inn. Defendant was the only pedestrian in the area.
Detective Ponzetti testified that when he asked defendant whether he was the driver, defendant replied, "I f***ed up. Yes." Once defendant spoke, Ponzetti noticed defendant smelled of alcohol. Ponzetti also observed that defendant's eyes were bloodshot and his words were slightly slurred. When Ponzetti asked him if he had been drinking, defendant replied that he had been drinking at a friend's house. Consequently, Ponzetti asked him to perform three sobriety tests, all of which defendant failed. According to Ponzetti, defendant was apologetic and kept asking Ponzetti not to take him to the police station because "it would ruin his life." Ponzetti then placed defendant under arrest and transported him to the DWI processing room in the police station.
In the processing room, a videotape was running. The tape shows defendant as emotionally upset and constantly repeating "I'll never do it again." He also sobbed that his life was ruined. Detective Ponzetti testified that defendant offered police $10,000 "to make this all go away." Officer Ketschek administered Miranda*fn4 warnings to defendant and then read him the first part of the standard request to submit a breath sample. When asked whether he would submit a breath sample, defendant replied "not sure yet." When asked for a second time whether he would submit a breath sample, defendant replied "I don't know."
Never during the entire evening, either at the roadside or in the DWI processing room at police headquarters, did defendant ever say he was not the driver. Nor did he volunteer any information about another person having been in the car.
The first time defendant claimed he was not the driver was at trial. He testified that he called his friend Walter Hauck to ask him to come to the Musket Tavern to pick him up because he had been drinking. According to defendant, Hauck's father dropped Walter off at the tavern and defendant gave Walter his car keys so that Walter could drive him home. According to defendant, he was sitting in the passenger seat while Walter drove and got into an accident. When defendant climbed out of the car, Walter was already gone and he did not see where Walter went.
Defendant testified that when Detective Ponzetti asked him whether he had been driving the car, defendant thought he was being asked whether he owned the vehicle. He insisted that when he said "this is f***ed up," he was referring to the situation itself and not to being the driver. Specifically, defendant stated, "I thought I was saying I wasn't the driver, and that the driver ran, and that everything just kind of happened so fast, next thing you know I was arrested for DWI, and I thought that's what was happening." When asked on cross-examination whether he ever told the officers that he was not the driver, defendant responded that he was confused at the time and did not know what was going on.
Hauck's testimony corroborated defendant's. He maintained that he almost missed a jug handle turn and consequently took the turn too sharply, causing the accident. According to Hauck, the Explorer was on its side when he climbed out and "took off running" because he did not have a driver's license. He maintained that he ran approximately one mile up the road to a grocery store where he called his friend Eugene Martz to come pick him up. Martz testified that he picked Hauck up at a grocery store in Absecon at approximately 9:30 or 10:00 p.m. on the night in question. According to Martz, he did not ask Hauck any questions, nor did Hauck offer any information or say that he had been in ...