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State v. Silverstein

February 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ASHLEE SILVERSTEIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 54-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2009

Before Judges Lisa and Sapp-Peterson.

Defendant, Ashlee Silverstein, appeals from her conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of permitting another person who was under the influence of intoxicating liquor to operate her motor vehicle, N.J.S.A. 39:4- 50(a), for which she was sentenced to seven months loss of driving privileges, twelve hours IDRC, and to pay a $350 fine, $33 costs, $200 drunk driving surcharge, $50 VCCB, and $75 safe neighborhood assessment. Defendant argues:

POINT I.

THE SUPERIOR COURT ERRED IN FINDING SUFFICIENT COMPETENT EVIDENCE THAT THE DEFENDANT REASONABLY SHOULD HAVE KNOWN THAT THE OPERATOR WAS INTOXICATED.

POINT II.

THE SUPERIOR COURT ERRED IN FAILING TO FIND THAT THE DEFENDANT TIMELY REVOKED HER PERMISSION FOR THE OPERATOR TO DRIVE HER CAR.

We reject these arguments and affirm.

Defendant arrived at her home in Mays Landing at about 1:00 a.m. on April 6, 2007. Three friends were in her home at that time, including Dwight Qawi. Qawi had been drinking for an extended period of time, first in Somers Point and then at a friend's house in Mays Landing, before he arrived at defendant's house. Qawi claimed he had gone upstairs in defendant's house before she arrived to freshen up. He said he brushed his teeth, put on some oil, and he began chewing gum. He said he did this to be sure that he did not smell like alcohol.

When defendant arrived at her home, she greeted Qawi with a kiss on his cheek. The group remained in defendant's home for more than an hour. Defendant and Qawi denied that any alcohol was consumed by anyone during that time. Indeed, defendant testified that, due to a medical condition, she was not permitted to consume alcohol and she did not keep any in her house. At some point, Qawi suggested that the group should go to Atlantic City. They all agreed. As they were walking toward defendant's car, Qawi suggested that he would drive. Defendant acquiesced without question and handed him the keys. Defendant's car was a small compact model (a Volkswagen Jetta). Defendant sat in the front seat. The other two individuals sat in the rear. The trip to Atlantic City took about fifteen minutes.

Defendant contended that throughout the entire time at her house and during the drive to Atlantic City, Qawi appeared to be fine and did not appear to her to be under the influence of alcohol. Indeed, she denied knowing that he had consumed any alcohol in the preceding hours.

When the group arrived in Atlantic City, Officer Michael O'Hala took note of the vehicle because of the unusual manner in which it was being driven. He followed directly behind defendant's vehicle for about ...


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