On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 51-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Daniel J. Fineran, III, appeals from a judgment of conviction for driving under the influence in violation of N.J.S.A. 39:4-50 and refusal to take a chemical test contrary to N.J.S.A. 39:4-50.2. The matter was tried de novo on appeal from a conviction in the municipal court of Seaside Heights.*fn1 We affirm.
Defendant was observed at about 1:00 a.m. on September 29, 2007, by the arresting officer while defendant was traveling in the wrong direction on a two-lane, two-way State highway. After defendant corrected the lane in which he was traveling the officer activated his light and defendant pulled over to the side of the road. When the officer approached defendant's vehicle, there was an odor of alcohol. Defendant's eyes were glassy and bloodshot. Defendant, who admitted to the officer that he had been drinking, informed the officer that he had injuries to his back and left foot. Defendant was unable to pass the field sobriety tests administered by the officer. The officer determined that he had probable cause to believe that defendant was driving under the influence of alcohol, placed defendant under arrest, and brought him back to the police station.
At headquarters, the police read a statement of Miranda*fn2 rights to defendant and read the full text of the DWI refusal form. Defendant appeared to be attentive. When the officer paused, defendant asked, "What are my options?" The officer then read the second portion of the refusal form and paused again. Defendant remained silent and an officer declared that his silence was a refusal. The police then charged defendant with refusal to take a breath test. At no point did he assent to the test.
During the municipal trial, defendant claimed that he had only half a drink in each of two bars. Defendant also claimed that he could not perform the field sobriety tests because he had a bad back and an injured toe. However, the foot that he was required to elevate in the one-legged stand had the injured toe, which could hardly interfere with the performance of the test. Furthermore, his back injury could not have been debilitating in terms of performing the field tests because the only treatment he had received was one epidural injection four or five years prior to his arrest. With respect to the reading of the refusal form, defendant contended that the officer read it very rapidly and, when he asked the officer to slow down, the officer read even faster. The municipal court judge found that the defendant was not a credible witness and credited the testimony of the officer. The Law Division judge agreed, specifically rejecting the claim about the amount of alcohol defendant consumed as not credible even on a cold record.
The Law Division judge concluded that defendant refused to take a breath test because he did not express an unqualified, unequivocal assent and that "his refusal was knowing [and] intentional" beyond a reasonable doubt and qualified under the statute as a refusal. She also found that there was "more than enough evidence to show that [defendant] was under the influence at the time he was operating the motor vehicle based upon the sobriety test and his conduct[; a]nd I find that beyond a reasonable doubt."
Because this was defendant first DWI conviction, the judge imposed a $200 DWI surcharge; $75 Safe Neighborhood penalty, suspended defendant's privilege of driving in New Jersey*fn3 for three months; and required twelve hours at the Intoxicated Driver Resource Center (IDRC). On the refusal conviction, the judge imposed a fine of $306 plus costs of $33; a $100 DWI surcharge; concurrent suspension of defendant's privilege to drive in New Jersey of seven months; and required twelve hours at the IDRC. A stay of sentence was conditioned on the filing of a notice of appeal and this appeal followed.
Defendant raises the following issues on appeal:
POINT I - THE CONVICTION OF THE DEFENDANT PURSUANT TO N.J.S.A. 39:4-50.2 IS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.
A. THERE IS INSUFFICIENT CREDIBLE EVIDENCE IN THE RECORD DEMONSTRATING THAT OFFICER HECKLER COMPLIED WITH SUBSECTION (E) OF THE REFUSAL STATUTE.
B. SINCE THE STATE COULD NOT SET FORTH THE AMOUNT OF TIME THE DEFENDANT REMAINED SILENT FOLLOWING THE UNINTELLIGIBLE READING OF THE PARAGRAPH 36 FORM, THERE IS INSUFFICIENT CREDIBLE EVIDENCE ON THE RECORD TO FIND THE ...