May 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTINE A. TRIELO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 15-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 7, 2008
Before Judges Graves and Alvarez.
Defendant, Christine A. Trielo, appeals from a conviction of driving while intoxicated, N.J.S.A. 39:4-50, as well as the resulting sentence. She was sentenced in Evesham Township on January 19, 2006, as a fourth offender to appropriate fines, costs and penalties totaling $2364, twelve hours attendance at an Intoxicated Driver's Resource Center, 180 days in jail and ten years suspension of driving privileges. Defendant appealed the conviction and sentence to the Law Division pursuant to Rule 3:23-2, and after a trial de novo, was again found guilty. The same sentence was imposed. We affirm both the conviction and the sentence.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF THE BREATHALYZER TEST BECAUSE THE OFFICER LACKED PROBABLE CAUSE TO ARREST.
THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT AS A FOURTH-TIME OFFENDER OF N.J.S.A. 39:4-50 BECAUSE THE STATE FAILED TO PROVE HER 1994 CONVICTION FOR DRIVING WHILE INTOXICATED, AND BECAUSE THE DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF REGARDING HER 1992 CONVICTION, PURSUANT TO STATE V. LAURICK.
On June 10, 2005,*fn1 as defendant left the parking lot of a restaurant, she attempted to cross over two southbound lanes of traffic on Route 73 in order to enter the northbound lane. She was struck by oncoming traffic. The officer who responded to the scene at approximately 11:57 p.m. immediately detected the odor of alcohol about defendant's person. She admitted to consuming two glasses of wine while at the restaurant. The officer noted in his report that defendant swayed when she walked, her speech was slow and slurred, her eyes bloodshot and watery, and her eyelids were droopy. The police car video of the various psychophysical tests administered at the scene, however, does not substantiate the officer's description of the problems defendant experienced in completing the requisite testing.
The Law Division judge commented in his February 1, 2007 written opinion:
[B]ecause of the camera angle, its distance from the test site, the conditions of light, the tape is not the best evidence of the tests. . . . Rather, proof of her poor performance of the tests resides in the officer's observation and prompt recordation of the details which the camera simply was not, for the most part, in a position to record.
The officer's report notes that defendant could not successfully maintain her balance and simultaneously count when performing the one-leg stand test which required her to do both, nor could she walk heel-to-toe. She was able to successfully recite the alphabet. The municipal court implicitly, and the Law Division judge explicitly, credited the officer's detailed report over the video. The decision to give the officer's report more weight than a poor quality video is reasonable in light of the circumstances surrounding the encounter, such as defendant causing an accident, her admitted drinking, and the details of her appearance and odor.
Defendant's first contention, that the officer lacked probable cause, is without merit. Probable cause exists where "there is a 'well grounded suspicion' that a crime has been . . . committed." State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). The concept balances "'the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy.'" Ibid. (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). The officer had a well-grounded suspicion that defendant was operating her motor vehicle while under the influence of intoxicating liquor given the totality of the circumstances. Probable cause was abundant.
On appeal, defendant also contends, as she did in the municipal court and the Law Division, that she should have been sentenced, not as a fourth, but as a second offender. According to her driver's abstract, she has been previously convicted of operating a vehicle under the influence of liquor or drugs in 1992, 1994 and 2000.
Defense counsel by way of motion for post conviction relief under Rule 7:10-2, sought to vacate the 1992 conviction alleging it was uncounseled. That motion was subsequently withdrawn by defense counsel with prejudice. Defense counsel filed a second motion to vacate the 1994 conviction because defendant believes the conviction was for refusal to submit to a breathalyzer, a different offense which would not enhance the penalties for DWI. That motion has been denied. We note that during oral argument in the Law Division, defense counsel represented that the 1994 conviction was vacated. He said, for "purposes of Laurick, there is no longer a 1994 conviction."*fn2 Nevertheless, there is nothing in the record before us to substantiate that such an order was ever entered. If at some point defendant is able to obtain orders vacating the prior convictions, she has the right to return to Evesham Township for resentencing.
Furthermore, defendant argues, because the municipal courts' sound recordings for 1992 and 1994 no longer exist, she should be given the benefit of the doubt and sentenced as a second offender and not a fourth offender. The retention rules require the municipal court to maintain sound recordings for only five years. R. 7:8-8. Defendant's theory is that when any prior motor vehicle conviction is in doubt, and sound recordings are not available, sentencing courts should forego imposition of mandatory enhanced penalties. If for no other reason than to continue to comply with the legislative mandate, courts must rely on motor vehicle conviction histories in abstracts from the New Jersey Motor Vehicle Commission. See N.J.S.A. 2B:25-5.1; see also State v. Carey, 232 N.J. Super. 553, 558 (App. Div. 1989) (stating that an authenticated computer abstract is acceptable proof of a prior conviction of an offense of driving while intoxicated). We concur with the trial courts that defendant's sentence must be as a fourth and not a second offender.
Accordingly, we affirm.