June 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES B. THOMAS, SR., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2008
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 2:11-3(e)(2). We add, however, the following comments.
Defendant asserts that the municipal court erred when it refused to allow defendant to offer the report of his neurologist, Sharan Rampal, M.D. Dr. Rampal's report merely stated that defendant was suffering from "modest post-concussion syndrome" resulting in "reports of memory deficit." Defense counsel sought clarification of Dr. Rampal's report prior to trial and sent him a letter outlining exactly what was needed for the defense to show that defendant was injured and unable to knowingly refuse to submit a breath sample for analysis. In response, the doctor provided a report indicating that he conducted tests and repeated that defendant had "modest post-concussion syndrome" and "residual reports of memory deficit" that the doctor treated with medication. Dr. Rampal did not address defense counsel's specific question, which was whether he "was able to testify to a reasonable degree of medical certainty [t]hat the observations made by the officer in this case would likely be the result of symptoms from a closed-head injury and that the injury would make it difficult for Mr. Thomas to understand his legal obligation to give a breath sample."
Dr. Rampal never indicated that he was able to testify to a reasonable degree of medical certainty that defendant was injured in the accident such that his ability to knowingly refuse a breathalyzer was impaired, rendering the doctor's testimony inadmissible. State v. Purnell, 394 N.J. Super. 28, 49 (App. Div. 2007). Dr. Rampal's report contained nothing more than a diagnosis and prescribed medication. The municipal court judge properly denied defendant's request to offer Dr. Rampal's testimony.
Defendant argues that the trial court erred when it found him guilty of leaving the scene of an accident because the State had not proven beyond a reasonable doubt that defendant 1) was the driver of the vehicle, and 2) left the scene in order to avoid his statutory duty to report the accident.
Defendant was the only person found by the police in the vicinity of the accident. He was located in close proximity to the accident very shortly after the vehicle was discovered by the police. The vehicle was owned by defendant's mother, and she had given defendant permission to use the vehicle on the night of the accident. Defendant's mother had not given anyone else permission to use her car.
The municipal court and Law Division finding that defendant was the driver of the vehicle in the single car accident was well founded. We conclude that there was no "very obvious and exceptional showing of error" to disturb the finding made that defendant was the driver. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
Defendant argues that even if this court determines that the State has proven beyond a reasonable doubt that he was the driver, the trial court still erred when it found him guilty of leaving the scene of an accident. He relies heavily on State v. Saulina, 177 N.J. Super. 264 (App. Div. 1980), for the proposition that a driver who is injured and who is discovered by police in the vicinity of the accident site shortly after the accident is not guilty of violating N.J.S.A. 39:4-129.
The facts here are readily distinguishable from Saulina. Unlike the defendant in Saulina, who went to the home of a friend to tend his injuries, defendant in this case went into the woods where he hid under a tree and covered himself with leaves to escape detection. State v. Saulina, supra, 177 N.J. Super. at 266. Here, police were only able to find defendant using a thermal imaging camera, whereas the police in Saulina found the defendant by following a trail of radiator fluid to his car, which was parked in the friends' driveway. Id. at 267. Finally, defendant was found under a tree hiding in the leaves, whereas the Saulina defendant was found in his friends' bathroom washing the blood from his face where he sustained injuries. Id. at 266.
The Law Division judge found defendant's contention that he was injured and had sat under the tree to rest less than credible. We agree with the Law Division judge's credibility assessment.
Defendant also argues that even if he is guilty of violating N.J.S.A. 39:4-129, a ten-day jail sentence was not warranted. Sentencing decisions are entitled to substantial deference from a reviewing court. Appellate courts review trial court sentencing decisions to determine if the sentence imposed could have been reached by a reasonable person based upon the evidence presented. State v. Roth, 95 N.J. 334, 365 (1984). In reducing the thirty-day sentence imposed by the municipal court judge, the Law Division judge noted that all instances of leaving the scene of an accident are egregious and that the facts in this case are no more egregious than most and consequently reduced the sentence to ten days. Defendant's sentence does not shock the judicial conscience. At the lower end of the sentencing range for a first offense, the Law Division judge properly exercised his sound discretion.
Defendant contends that there is insufficient evidence to prove beyond a reasonable doubt that he knowingly failed to submit to a breathalyzer test and that the court erred when it found him guilty of violating N.J.S.A. 39:4-50.4a. We disagree.
Here, defendant flatly refused to submit to a breathalyzer test after being apprised of his Miranda rights and his rights and obligations regarding the breathalyzer test. He was not unresponsive nor did he respond in a way that would indicate that he was confused. The officer administering the breathalyzer testified that defendant was not visibly injured and appeared to understand his rights and obligations. Defendant was afforded three opportunities to take the test and rejected all of them. The Law Division judge credited the officer's testimony, found that probable cause existed, and concluded that the State had proven beyond a reasonable doubt that defendant had refused to submit a breath sample in violation of N.J.S.A. 39:4-50.4a. Our review of the record satisfies us that there is nothing to show that the Law Division judge's conclusion that defendant refused a breathalyzer test contrary to statutory requirements went "so wide of the mark" as to indicate that a mistake must have occurred. State v. Johnson, 42 N.J. 146, 162 (1964).
Affirmed. The stay of sentence previously granted is hereby vacated.