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State v. Bush

January 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Cumberland County, Municipal Appeal No. 16-07.

Per curiam.


Submitted: December 10, 2008

Before Judges C.L. Miniman and King.

Defendant Pamela Bush appeals from her conviction of driving while intoxicated, in violation of N.J.S.A. 39:4-50; refusal to submit to a chemical test, in violation of N.J.S.A. 39:4-50.4(a); and reckless driving, in violation of N.J.S.A. 39:4-96. We affirm.

During the evening of January 5, 2007, witness Dianne Hatfield was following a black SUV on Morias Avenue in Millville. After observing the SUV swerve off the road multiple times, narrowly missing telephone poles, mailboxes, and bushes, Hatfield called 911 and reported her observations, giving the license plate number JYM-29J to the dispatcher. Hatfield continued to follow the SUV. At one point it pulled over for a few minutes but then continued until it pulled into a driveway at the corner of Morias Avenue and West Main Street. The driver, who was wearing gray sweatpants, exited the vehicle and struggled up the steps to the residence. At that point, Hatfield left the scene.

Millville Police Officer Jason Vinzinski was dispatched to that residence in response to Hatfield's call and arrived there less than four minutes later. He approached the parked black SUV, which he identified as a Ford Explorer with plates matching Hatfield's description, and noticed that the hood was dry and warm despite a light rain. The car was registered to defendant.

As he approached the residence, he saw defendant through a window and noticed that her pocketbook and keys were on the porch. The officer knocked on the door and the homeowner, Theresa Nardi, admitted him into the residence. He inquired who had been driving the Explorer and defendant, who was leaning against the kitchen cabinets and slurring her words, answered that she drove it. Although she had a strong odor of alcohol on her breath, glassy and bloodshot eyes, and poor balance, she denied having had anything to drink that night. Defendant wore gray sweatpants, consistent with Hatfield's observation.

Theresa Nardi denied knowing defendant, although defendant claimed that Theresa Nardi was her aunt and stated that defendant's mother was dying. When pressed, defendant did not know Theresa Nardi's name. As defendant and the officer left the residence, defendant swayed, stumbled, and grabbed the railing to steady herself. Although the officer asked defendant twice to perform field sobriety tests, she steadfastly refused, saying, "[N]o I won't, you're not arresting me for DWI . . . . You can't arrest me, and I won't do any test[s]." The officer then placed defendant under arrest for driving while intoxicated and put her in his patrol car. Before leaving the scene, Theresa Nardi's husband, Anthony Nardi, returned home and identified defendant as his nephew's former girlfriend, at which point Theresa Nardi remembered having met her five years earlier at a wedding. The Nardis did not know why defendant was at their home. When the officer retrieved defendant's documentation from her vehicle, he observed a glass in the center console cup holder which was filled with an alcoholic beverage and still cold to the touch.

On the way to the police station, the officer could smell the alcohol on defendant's breath through the plexiglass divider separating the front and rear seats of his patrol car.

Defendant told the officer that her brother Paul had been driving her vehicle and that his girlfriend was having a miscarriage in the back of the vehicle. Later she told the officer that her brother was at home sleeping. The officer asked defendant for her brother's telephone number to verify her story, but she refused to provide it.*fn1 Before processing the defendant, the officer noticed that she had urinated in her pants. Defendant refused to sign the Miranda form after being read her rights, although she acknowledged that she understood them. She also refused to submit to the Alcotest(r) after being read the appropriate forms regarding the taking of a breath sample.

After finding the facts from the record before the municipal court, the judge rendered the following oral decision:

In this matter, reviewing the entire set of circumstances and the entire record in this matter, [I find] that the State has proven the elements of the offense of drunk driving and refusal to provide a breath sample, beyond a reasonable doubt.

First[,] . . . with respect to [Officer Vinzinski's] initial introductory question when [he] arrived at the residence, as to who was driving the car[,] the officer was [not] required to give Miranda warnings before asking that introductory question.

That's a simple, standard, initial field investigation inquiry that a police officer is entitled to do, especially when there's more than one person present. Nobody was under arrest at that point. Nobody was handcuffed.

Nobody was . . . in the police car or at the police station. Nobody had been charged. No threats were made . . . . It was an initial field inquiry; hey, who was driving? [T]he defendant chose to answer that question and indicated that she was driving.

[T]herefore, I find that it was not in violation of any Miranda rights because Miranda rights were no[t] required at that point. [Defendant] was not in custody. She had not been charged. It was not a coercive environment. It was a preliminary field investigation question.

There's no question in this matter but that [defendant] was under the influence of alcohol, although we don't have an Alcotest(r). The repeated indications in the police report, which was admitted into evidence by stipulation of ...

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