On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Docket No. 06-056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2008
Before Judges Kestin and Newman.
Defendant Antoinette Mele was found guilty of driving under the influence of alcohol (DWI) in violation of N.J.S.A. 39:4-50 in the Teaneck Municipal Court and again on appeal in the Superior Court.*fn1 Finding defendant to be a second DWI offender, the Superior Court judge imposed the same sentence as the municipal court: suspensed defendant's driving privileges for two years, fined her $500, and imposed court costs of $30, a $50 VCCB penalty, a $75 Safe Neighborhood penalty, $8 in miscellaneous fund charges and a $200 surcharge. A stay of the sentence was denied by this court. Defendant appeals. We affirm.
The relevant facts may be summarized as follows. The seventy-nine year old defendant met with friends at a restaurant in Cresskill on November 6, 2004 at approximately 1:30 p.m. Over the course of a three hour lunch, she consumed two Bloody Marys and one brandy. According to defendant, she consumed her last drink when the meal ended some time after 4:30 p.m.
Defendant left the restaurant and proceeded toward Green Market in Teaneck to purchase some vegetables for dinner. At approximately 5:21 p.m., while traveling on Rensselaer Road, defendant decided to pull over and rest. In her attempt to pull over to the side of the road, defendant drove into the opposing lane and collided with Jennifer Lecky, who was driving her SUV in the opposite direction.
According to Ms. Lecky, she had to pull to the far side of her travel lane, going onto the curb to avoid a head-on collision. Ms. Lecky was unable to open her driver's side door because it was wedged against defendant's vehicle. She rolled down her window to ask if defendant was hurt. Ms. Lecky immediately smelled alcohol on defendant's breath and informed her that they had been involved in an accident. Defendant denied that an accident had occurred. Defendant then proceeded to close her eyes and appeared to fall asleep. Ms. Lecky called the police to report the accident.
Officer Arnold Peters, an eight-year veteran of the force, responded to the accident scene. Ms. Lecky informed Officer Peters that she detected alcohol on defendant's breath. Officer Peters observed that defendant was sitting in the driver's seat of her car, that the vehicle was running, and that defendant appeared to be sleeping. Officer Peters asked defendant to step out of the car. When she attempted to do so, she needed to be assisted and the officer detected the smell of alcohol on her breath.
After assisting defendant out of her vehicle, Officer Peters administered three field sobriety tests, only one of which was given significant weight by the court. The officer first administered the "one-legged stand" test. Defendant was unable to keep her foot off the ground for more than ten seconds and staggered from side to side. Officer Peters also asked defendant to perform the "walk and turn" test, which she was unable to do without stumbling several times. According to both the municipal and trial court, these tests were not accurate gauges of her sobriety because of defendant's advanced age.
Officer Peters also administered the "alphabet" test. He testified that defendant was unable to recite the alphabet beyond the letter F. Defendant testified that she began to recite the alphabet but was instructed to stop at the letter K when it was apparent that she could do so to completion. Following these observations, Officer Peters placed defendant under arrest and transported her to police headquarters. He did not fill out a Drinking Driving Report or a Police Officers' Field Observations Report as required under Teaneck police procedures.
Upon arriving at police headquarters, defendant asked to use the bathroom. When her request was denied, she became extremely agitated and removed her pants and attempted to urinate on the floor. After she complied with the officers' requests to put her pants back on, the officers allowed her to use the restroom.
Officer Anthony Brezzi, a fourteen-year police officer and certified breathalyzer operator, gave defendant her Miranda*fn2 warnings and then asked if she had been drinking. Defendant replied that she had. Defendant responded "yes" to the written form which advised her of her right to secure independent blood testing. Defendant claims that Officer Brezzi never read her the standard statement that would have notified her of her right to obtain an independent blood test. Officer Brezzi administered two breathalyzer tests, each resulting in a blood alcohol concentration (BAC) reading of .13.
Defendant introduced testimony from Dr. Stanley Broskey, an expert in the operation of breathalyzers and the administration of field sobriety tests. Dr. Broskey testified that individuals who suffer from gastroesophageal reflux disease (GERD) often obtain inaccurately high breath test results. This is because the stomach forces food particles into the esophagus and mouth, which the breathalyzer inaccurately reads as vapors coming from the person's lungs. Dr. Broskey testified that a woman of defendant's weight, having consumed what defendant claimed to consume, should have had a BAC reading of approximately .03. He also testified that the National Highway and ...