On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. MCA-05-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Simonelli.
Defendant, James A. Deola, appeals from his conviction after a trial de novo in the Law Division, see Rule 3:23-8(a), of driving while intoxicated (DWI), N.J.S.A. 39:4-50, for which he was sentenced to seven months loss of driving privileges, twelve hours IDRC, and to pay a $306 fine, $33 costs, $50 VCCB, $200 DWI surcharge, and $75 Safe Neighborhood assessment. Defendant argues:
I. THE MUNICIPAL COURT AS WELL AS THE SUPERIOR COURT ERRED IN FAILING TO DISMISS THE CHARGES AS FILED AGAINST THE DEFENDANT ON FEBRUARY 6, 2007 WHEN THE CHARGING OFFICER FAILED TO APPEAR AT THE SCHEDULED COURT HEARING.
II. THE FINDING OF AFTER ACCIDENT CONSUMPTION OF ALCOHOL BY THE TRIAL COURT PROHIBITED A FINDING OF GUILT WITH RESPECT TO VIOLATION OF N.J.S.A. 39:4-50. IF SUCH A FINDING CAN BE SUSTAINED, THE IMPOSED LICENSE SUSPENSION OF SEVEN MONTHS WAS IMPROPER.
We reject these arguments and affirm.
On August 25, 2006, at about 4:00 p.m., defendant and his friend, Jan Albertson, went to a bar and consumed alcohol. Defendant and Albertson contended they remained in the bar for about one hour and they each consumed about three bottles of beer. They left in defendant's truck. Defendant was driving, intending to take Albertson home. After driving ten or fifteen minutes, a mechanical problem occurred with one of the wheels of the truck, causing defendant to lose control and go off the roadway, making contact with a utility pole. Defendant and Albertson had a friend who lived in the immediate vicinity, about 100 to 200 yards away from the accident scene. Although defendant could not drive the vehicle in a forward direction because of the damage, he was able to drive it in reverse to the friend's house. He backed into the driveway, about fifteen feet off the road.
Using his cell phone, defendant called Vincent Simione, a tow truck operator with whom he was familiar, and requested that he come to remove the vehicle. Defendant and Albertson sat in the truck waiting. Defendant did not report the accident to the police, but someone else called it into the State Police. State Troopers MacNeill and Lowry arrived at the scene between 8:00 and 8:30 p.m. They saw no vehicle, but observed the damage to the pole and followed the gouge marks made on the roadway by the damaged wheel to the friend's house.
When the police arrived, Simione had already loaded defendant's truck onto his flatbed truck. In discussing the incident with defendant, the police detected the odor of alcohol emanating from his breath. They asked whether he consumed any alcohol that evening, and he responded affirmatively. MacNeill specifically asked defendant whether he consumed any alcoholic beverages after the accident, and defendant replied, "No." After field sobriety tests were conducted, defendant was arrested, taken to the station house, and the Alcotest was administered, yielding a reading of .15% BAC.
When MacNeill questioned defendant at the station house, he acknowledged that he consumed a couple of beers at the bar. He was unsure of the timeframe. While being questioned by the troopers, defendant again stated, as he had at the accident scene, that he did not consume any alcohol after the accident. However, after being handed his summonses for various motor vehicle offenses, including DWI, defendant volunteered, for the first time, that he did consume some alcohol after the accident.
At trial, Lowry and MacNeill testified for the State. Defendant testified in his own defense, and he called Albertson and Simione. The Alcotest reading was stipulated, and it was stipulated that defendant operated a motor vehicle and that the police had probable cause to arrest him and administer the Alcotest. The sole issue in dispute was whether or not defendant's intoxication resulted from the consumption of alcohol after the accident.
Defendant testified that upon arriving at the friend's driveway, he was nervous and upset and wished to take Xanax. Needing some liquid for that purpose, he reached in the back of the truck and retrieved a bottle of vodka. Drinking from the bottle, he washed down the Xanax. According to defendant and Albertson, the two then sat there, each taking five or six swigs of vodka directly from the bottle. At some point, the owner of the home came out and talked to the two men. They explained their predicament. The owner gave each of them one bottle of his homemade beer. The two men drank the beer, probably not finishing the entire bottle, and, when the ...