May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEAN QUINN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-044.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2008
Before Judges Grall and Chambers.
Defendant Sean Quinn appeals from his conviction for driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50. We affirm substantially for the reasons set forth by the Law Division judge in his oral decision.
Defendant was stopped on March 3, 2006, by Police Officer Keith Soules of the Borough of Butler who had seen defendant weaving across the dotted white line in the road a number of times. Sergeant Ciro Chimento was called to the scene to conduct field sobriety tests. The field tests were not completed because defendant was having difficulty standing. Defendant was arrested and taken to the police station where an Alcotest was conducted.
At the time of the municipal court hearings on September 6 and October 4, 2006, the admissibility of the Alcotest results were still in question, since State v. Chun, 194 N.J. 54 (2008), was then pending but had not yet been decided. As a result, the State proceeded without introducing the Alcotest results. Further, due to the violation of a sequestration order, the testimony of Sergeant Chimento was excluded from the record. Defendant did not testify nor present evidence. Thus, the record consists solely of the testimony of Officer Soules and his observations of defendant on the evening in question.
Officer Soules testified that defendant was "very intoxicated." Defendant had a strong odor of alcohol; his eyes were bloodshot; his speech was slurred and stuttering; he had to grab onto the door and roof of the car when he exited the vehicle; he had difficulty standing; he could not recite the entire alphabet; and he was walking in circles and was swaying. At the police station, defendant also became antagonistic and made suicidal statements.
Based on these proofs, defendant was found guilty of driving while under the influence of alcohol. His license was suspended for two years; he was fined $500; and the other statutory penalties, surcharges and costs were imposed. Defendant appealed to the Law Division, and the conviction and sentence were upheld. This appeal followed. The implementation of the sentence has been stayed pending appeal.
On appeal defendant raises the following issues:
POINT I THE DUI 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; THE CONVICTION WAS BASED SOLELY UPON THE TESTIMONY OF OFFICER SOULES (WHO WAS NOT CERTIFIED TO PERFORM FIELD SOBRIETY TESTS)
POINT II THE DUI CONVICTION MUST BE REVERSED AS THE CONVICTION IS BASED UPON HEARSAY EVIDENCE IN VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION (NOT RAISED BELOW)
POINT III THE DEFENDANT'S DUI CONVICTION MUST BE REVERSED SINCE THE FIELD SOBRIETY TESTS THAT WERE GIVEN WERE NOT VIDEOTAPED (NOT RAISED BELOW)
We find that these issues are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and affirm for substantially the reasons set forth by the trial judge in his oral decision placed on the record on January 26, 2007.
We will only address briefly defendant's argument, not raised below, that the police should have videotaped him when conducting the field sobriety tests. This court has previously held that "[t]here is no duty on the part of the police to create evidence by videotaping suspected drunken drivers." State v. Gordon, 261 N.J. Super. 462, 464 (App. Div. 1993). Defendant, raising constitutional concerns, invites us to change this law. We decline to do so since nothing in defendant's argument or in State v. Cook, 179 N.J. 533, 551-62 (2004) warrants our consideration of this issue.
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