On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Municipal Appeal Docket 29-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Newman.
Defendant James B. Thomas, Sr. was convicted of leaving the scene of an accident, N.J.S.A. 39:4-129, and refusing a breathalyzer test, N.J.S.A. 39:4-50.4a. The municipal court judge imposed fines, penalties, a seven-month driver's license suspension, and sentenced defendant to 30 days imprisonment. The Law Division judge found the defendant guilty following a trial de novo. The Law Division judge imposed the same fines, penalties and driver's license suspension, but reduced defendant's custodial sentence to ten days imprisonment, and stayed the serving of the jail sentence pending appeal. We now affirm.
The relevant facts may be summarized as follows. At approximately 4 a.m. on the morning of February 29, 2004, defendant was involved in a one car automobile accident in which he struck a parked car and a utility pole. His vehicle ultimately flipped onto its side and came to rest in the large front yard of a Millville residence. When the police arrived on the scene they surveyed the damage to the parked car and utility pole, ascertained that no one was in the blue 1990 Mazda, and began a search for the driver of the car.
The police unsuccessfully searched for the driver until the fire department arrived on the scene, and a firefighter suggested that the officers use a thermal imaging camera that was on the fire truck. Using that equipment, the firefighters and police officers located defendant sitting at the base of a tree, covered in leaves, approximately 150 to 200 yards from the scene of the accident. Approximately fifteen minutes had elapsed between the time the police arrived on the accident scene and the time that the officers found defendant in the woods.
Defendant was unresponsive when approached, was lethargic and unsteady on his feet, and his breath smelled strongly of alcohol at the time of his arrest. Defendant required assistance in order to keep from falling over on the walk from the wooded area where he was found to a police patrol car. Defendant appeared very upset, irate, disoriented, and was slurring his speech. No injuries were observed, but the Millville Rescue Squad was summoned to the scene to transport defendant to the hospital. Defendant refused treatment at the scene and was transported to the Millville Police Station for a breathalyzer test.
After defendant arrived at the station, and was read his Miranda*fn1 rights, the officer transporting him asked defendant to perform physical coordination tests. Defendant refused. The officer reviewed the questions on the Alcohol Influence Report with defendant. Defendant refused to answer any questions. The officer then read defendant the New Jersey Motor Vehicle Commission Standard Statement for Operation of a Motor Vehicle.
As part of the reading of the Standard Statement the officer asked defendant twice if he would provide a sample of his breath for testing. Defendant refused both times. Nonetheless, the officer set up the breathalyzer despite defendant's repeated refusals to submit a sample of his breath for analysis. The final step in setting up the breathalyzer is for defendant to give a breath sample. After taking all the preliminary steps in preparing the breathalyzer, the officer asked defendant a third time if he would provide a sample of his breath. Defendant still refused.
On appeal, defendant raises the following points for our consideration:
POINT I: THE COURT ERRED IN REFUSING TO PERMIT THE DEFENDANT TO OFFER THE TESTIMONY OF SHARAN RAMPAL, M.D.
POINT II: THE COURT ERRED IN FINDNG DEFENDANT GUILTY OF A VIOLATION OF N.J.S.A. 39:4-129 AND IN IMPOSING A 10 DAY PERIOD OF IMPRISONMENT POINT III: THE COURT ERRED IN FINDING DEFENDANT GUILTY OF A VIOLATION OF N.J.S.A. 39:4-50.4a
We have carefully reviewed the record in the light of the arguments raised by defendant and find them to be without sufficient merit to warrant full discussion in a written opinion. Rule ...