On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Chambers.
Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Because it was defendant's third DWI conviction, he was sentenced to 180 days in jail, with a maximum of 90 days to be served in an approved alcohol in-patient rehabilitation program; a ten-year suspension of his driving privileges and of his motor vehicle registration; and a $1,000 fine. The court also imposed all other appropriate costs, assessments, penalties and surcharges. However, the custodial portion of defendant's sentence was stayed pending the filing of a notice of appeal. Following the filing of his notice of appeal, defendant served ninety days of his custodial sentence in an in-patient alcoholic rehabilitation program. On April 11, 2007, the Law Division entered an order staying the remainder of defendant's custodial sentence, pending appeal. For reasons that follow, we remand this matter to the Law Division for further proceedings consistent with this opinion, and retain jurisdiction.
On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when his motor vehicle left the roadway and struck a tree. As a result of the collision, the motor vehicle's airbag deployed. Defendant did not lose consciousness and remained in his vehicle where he telephoned his wife and called for a tow truck. The police arrived at the scene at approximately 8:09 p.m.
Patrolman Brian Ahlert of the Florham Park Police Department was the first officer to approach defendant. Ahlert inquired whether defendant suffered any injuries or was in need of medical assistance. Defendant responded no to both questions. When Ahlert asked how the accident occurred, defendant only told the officer that the car had pulled to the right. During this conversation, Ahlert detected an odor of alcoholic beverage emanating from defendant's breath. Ahlert's observations of the accident scene disclosed that the motor vehicle suffered heavy front-end damage and there were 50 feet of tire tracks in the grass shoulder, indicating that the vehicle drifted off the travel portion of the roadway in a straight line, striking a tree and traffic sign approximately five feet from the edge of the road.
While Ahlert talked to defendant, Patrolman David Rubelowsky and several other officers of the Florham Park Police Department arrived on the scene, together with David Paige and his wife, both members of the Florham Park Memorial First Aid Squad. Also arriving at the scene at approximately the same time as the police, was defendant's wife.
On arrival, Paige approached defendant to evaluate whether defendant needed medical assistance. Defendant informed Paige that, although he felt pain in his knees, he did not lose consciousness; did not have neck or back pain; knew his name; knew where he was; and knew what had happened. Although Paige advised defendant that the ambulance squad was available to take him to the hospital for further evaluation, defendant indicated that he did not want to go. At one point, defendant began to demonstrate to Paige "that his knees were fine . . . [by dipping] down and [standing] back up . . . ." By dipping down, Paige explained that defendant "bent his knees a few inches" and said "see, my knees -- I'm fine."
In the interim, Ahlert made observation of the interior of defendant's motor vehicle. The patrolman observed a small empty airplane-size bottle of Johnny Walker Black Label scotch whiskey on the front passenger floorboard, and a one-half empty bottle (750 ml) of Sawyer Cellars Cabernet Sauvignon wine on the rear passenger floorboard. Based on his initial observations of defendant, Ahlert requested defendant to perform three field sobriety tests. Before administering the tests, in responding to Ahlert's questions, defendant denied that he had any injuries or other medical conditions that could have affected his performance of the sobriety tests.
Ahlert first administered the horizontal gaze nystagmus (HGN) test. Ahlert instructed defendant not to move his head when following the movement of the officer's pen; just to follow the movement of the pen with his eyes. Defendant failed to follow the instruction and moved his head while attempting to maintain visual sight of the officer's pen. Because there was debris on the roadway, the officer had the roadway swept prior to requesting defendant to perform the next two tests in front of his patrol vehicle.
Ahlert requested defendant to perform the heel-to-toe walking test by taking nine steps out, touching heel-to-toe in a straight line, turning, and walking nine steps back in the same fashion. After the officer demonstrated the test to defendant, defendant attempted to perform the test but took eleven steps out, not heel-to-toe but side-by-side, and then took thirteen steps back in the same manner.
The third test was the one-leg stand test. Defendant was instructed to raise one foot of his choice six inches off the ground, slightly out in front of him, and to count to thirty. On his first attempt, defendant did not raise his foot out in front of him, but rather raised it directly underneath his body. On his second attempt, defendant placed his foot down several times to maintain balance. Based on his observations, Ahlert formed an opinion that defendant was intoxicated. Defendant was arrested; placed into the rear of Ahlert's patrol vehicle; and transported to police headquarters.
On arrival at police headquarters, defendant was seated in the booking room approximately thirty-five feet away from the Sally Port door. Defendant was initially asked questions concerning his name, address, age, and other questions of a similar nature. Ahlert then gave defendant his Miranda*fn1 warnings. After informing the patrolman that he understood his Miranda rights, defendant responded to the officer's questions concerning the alcohol he consumed that evening. Defendant informed Ahlert that he had three drinks that evening, one glass of scotch and two small glasses of wine, consuming the first drink at approximately 6:00 p.m. and the last drink at approximately 7:00 p.m. When asked whether he would provide a breath sample, defendant answered in the affirmative. While walking a short distance to the room where the Alcotest breath test instrument was located, Ahlert observed defendant stumble, almost walking into a wall. The breath test was administered by Rubelowsky outside of Ahlert's presence.
On completion of defendant's breath test, Ahlert met with defendant again in the booking room, completed defendant's paperwork and released defendant into the custody of his wife at 9:49 p.m. Ahlert described his observations of defendant's physical manifestations throughout the entire incident as: defendant swayed and staggered as he walked; swayed while he stood; spoke with a slightly slurred speech and in a slow manner; and had bloodshot and watery eyes with droopy eyelids.
In the Municipal Court proceedings, Ahlert and Paige testified in accord with the aforementioned. In addition, the State offered testimony of Patrolman Rubelowsky and placed in evidence a videotape taken with the camera in Ahlert's patrol vehicle. The videotape showed defendant's performance of the heel-to-toe walk and one-leg stand tests at the accident scene and of ...