On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-27-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Fisher and Baxter.
Defendant Mark Hallquist appeals from a conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. After being found guilty in the municipal court of Elk Township, defendant appealed to the Law Division, where a trial de novo again resulted in his conviction. Defendant appeals from the November 26, 2007 Law Division order that denied his motion to suppress evidence and found him guilty of driving while intoxicated.*fn1 We affirm.
On November 20, 2006, at 12:08 a.m., Elk Township police were dispatched to the buffer area near one of the exits of Route 55 to investigate a report of an automobile accident. Upon arrival at 12:10 a.m., Corporal Ken Sweeten and Officer Thomas Bisceglia observed a heavy-damaged blue pickup truck attached to a tow truck. The tow truck driver related that while operating his tow truck on Buck Road adjacent to the Route 55 on-ramp, a man, later identified as defendant, flagged him down and asked him to pull his truck out of a twenty-five foot ditch nearby.
Sweeten testified that he questioned defendant, who was "in the vicinity" of the tow truck when Sweeten arrived at the scene. Defendant told Sweeten that while traveling on Buck Road, he attempted to enter the on-ramp, but failed to navigate the turn, causing his vehicle to go off the road, into the woods, and down into the ditch, whereupon he flagged down the tow truck and asked the driver to assist him.
According to Sweeten, while speaking to defendant, he detected the smell of an alcoholic beverage emanating from defendant's breath. Sweeten described defendant as "definitely staggering, . . . having trouble walking, [and] having trouble standing." Accordingly, Sweeten directed defendant to sit on the grass nearby to ensure that defendant would not fall and injure himself.
Because the accident had occurred on a State highway, Sweeten contacted the New Jersey State Police. Shortly thereafter, two troopers, Godich and Wright, arrived. Godich administered field sobriety tests to defendant. The administration of the tests was videotaped, and the videotape was reviewed by both judges. Because defendant continually lost his balance and was unable to perform the tests, Godich discontinued the tests "for [defendant's] safety." Godich testified that defendant failed the tests. Godich also testified that when he asked defendant whether he had consumed any alcohol, defendant admitted to consuming four beers and a bottle of liquor.
After arresting defendant for driving while intoxicated, Godich placed defendant in his troop car and asked defendant to direct him to the precise scene of the accident. Defendant told the trooper that after hitting the guardrail, the car flipped and ultimately landed in a ditch twenty-five feet below the road surface. Defendant pointed to the ditch. Later, Trooper Wright administered the Alcotest to defendant at State Police barracks, which defendant failed.
In the municipal court, after the State rested, defendant moved for a dismissal of the charges, contending that police lacked "probable cause for the stop of the [tow truck]." The judge denied the motion, whereupon defendant took the stand. He testified that he had consumed "a couple of beers" before the accident. He maintained that sitting in his car after the accident, while trying to figure out what to do, he consumed a bottle of Crown Royal that he had purchased earlier that night. He contended that he "drank pretty much all or most of that bottle" before climbing up the ravine and flagging down the tow truck.
On cross-examination, defendant insisted that he was not, as Sweeten had testified, seated on the sidewalk when the officers arrived. Instead, defendant claimed that he was seated in the tow truck when Sweeten asked the tow truck driver to stop. However, defendant acknowledged that he never told the troopers that he was "drinking down in the gully." Defendant presented no other witnesses.
Judge Powell found defendant guilty of driving while intoxicated. The judge specifically rejected defendant's claim that he did not consume the Crown Royal until after the accident. After discussing defendant's testimony that he purchased the Crown Royal at a liquor store that was in the opposite direction from his children's home, to which he was heading before the accident, the judge stated, "I don't believe any of that." The judge concluded that defendant's account "doesn't make any sense--none of that makes any ...