March 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH R. DALEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 18-10-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Winkelstein and Fuentes.
Following a trial de novo in the Law Division, defendant was convicted of careless driving, N.J.S.A. 39:4-97; driving while intoxicated (DWI), N.J.S.A. 39:4-50; and refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a. The municipal court judge had convicted defendant of the same offenses. For sentencing, both courts merged the careless driving conviction into the DWI conviction, and sentenced defendant as a third-time offender, imposing a ten-year license suspension, appropriate fines and court costs, and 180 days incarceration. The Law Division judge permitted defendant to serve ninety of his 180 days of incarceration at an inpatient rehabilitation center, and stayed defendant's incarceration pending appeal.
On appeal to this court, defendant does not challenge his careless driving conviction, but raises the following legal arguments as to his DWI and refusal convictions:
POINT I: THE STATE HAS FAILED TO CARRY ITS BURDEN OF PERSUASION THAT JOSEPH DALEY OPERATED A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL AS THE EXPERT TESTIMONY OF DOCTOR COSTINO AND DOCTOR ROCKSMITH CREATE A REASONABLE DOUBT AS TO HIS GUILT.
POINT II: THE STATE HAS FAILED TO CARRY ITS BURDEN OF PERSUASION THAT JOSEPH DALEY REFUSED TO SUBMIT BREATH SAMPLES.
POINT III: THE REFUSAL CONVICTION SHOULD BE REVERSED BECAUSE OFFICER SAMPSON FAILED TO READ THE STANDARD STATEMENT IN ITS ENTIRETY.
We conclude that defendant's arguments are without merit, affirm his judgment of conviction, and vacate the stay of his sentence.
The facts underlying defendant's conviction were elicited at his municipal court trial in the Ocean City municipal court on August 20, 2007. The incident that led to the charges occurred on April 30, 2007, at a Wawa convenience store in Ocean City. At that time, David Haag, and his wife, Rachel Haag, along with their two-year-old son, were parked in the convenience store parking lot. Mr. Haag had gone into the store. At approximately 8:45 p.m., Mrs. Haag saw a man, later identified as defendant, in the parking lot having difficulty maintaining his balance while walking. He leaned on the parking poles outside of the convenience store and on the building to keep from falling. While he was leaning against the building, Mrs. Haag saw him pull down the zipper of his pants and urinate on the ground.
As Mr. Haag walked out of the Wawa toward his car, he saw defendant leaning, crouched over, with his shoulder against the Wawa and his hands on his groin, urinating on the ground. Mr. Haag approached defendant, and told him that his behavior was indecent. Defendant zipped up his pants and as Mr. Haag walked away, defendant said: "fuck you." After Mr. Haag said, "excuse me?" defendant repeated the remark. When Mr. Haag asked defendant if he had a problem, defendant said: "fuck you. Fuck your wife and fuck your kid. . . . Your fucking kid should be in bed."
Defendant walked toward his car. Mr. Haag saw him sway and stumble, nearly falling twice. Defendant placed his hand on the parking poles and the hood of his car to maintain his balance. After defendant got into the driver's side of his car, the Haags heard his car start, as well as a grinding, clanking sound.
Believing that defendant was intoxicated, Mr. Haag told him that he should not drive, to turn off the ignition and to get out of the car. Defendant ignored Mr. Haag's pleas, and the car moved forward, striking parking poles outside of the Wawa. The engine to the car then shut off. Again, Mr. Haag told defendant not to drive because he was too drunk, but defendant ignored him and started the car's engine. As Mr. Haag walked behind defendant's vehicle, defendant shifted the car into reverse and the vehicle quickly jolted backwards, causing Mr. Haag to move to avoid being struck by the vehicle.
Mr. Haag rushed to the driver's side of the vehicle and pulled the side door open in an effort to prevent what he described as an "obviously very intoxicated" man from driving. Mr. Haag tried to shift defendant's vehicle into park and grab the keys from him; defendant continued to try to shift gears, repeatedly striking Mr. Haag with his elbows.
Eventually, Mr. Haag removed defendant's keys from the ignition. Defendant told him: "give me my fucking keys." Defendant staggered from side to side and forward and backward, bumping into cars; he nearly fell on more than one occasion. He lunged at Mr. Haag several times, falling into him; Mr. Haag prevented defendant from falling to the ground.
Mrs. Haag took her son into the Wawa and asked someone to call 911. Ocean City police officer James Sampson was dispatched to respond to the 911 call. Sampson was a certified breathalyzer operator and a certified alcotest operator.
When Sampson pulled into the Wawa parking lot he saw defendant leaning on a garbage can. Mr. Haag told Sampson that he took defendant's keys because defendant was drunk, hostile and violent. Mr. Haag believed defendant was intoxicated based upon defendant's glossy eyes, flushed face, highly agitated mood, and the way in which defendant spoke, stood, walked, and behaved.
While Sampson and Mr. Haag spoke, defendant approached them, swaying and staggering, grasping at trash receptacles in an effort to maintain his balance. When Sampson told defendant what Mr. Haag had told him, defendant grinned and laughed, and asked "what are we doing here? I'm a local." He further asked the officer: "why are we doing this? . . . I wasn't driving."
The officer detected an overwhelming odor of alcohol on defendant's breath. When defendant attempted to produce his driver's license, registration, and insurance certificate, his hand movements were slow and his hands fumbled, making it difficult for him to retrieve the documents from his wallet.
When asked by the officer to perform field sobriety tests, defendant said he could pass the test. The first test required him to recite all twenty-six letters of the alphabet, which he was able to do. However, as he repeated the alphabet, the officer detected an odor of alcohol on defendant's breath; defendant's speech was thick and slurred and he swayed back and forth and from side to side.
Sampson asked defendant if he was suffering from any injuries or other problems that would prevent him from performing a balancing test that required him to lift one leg off the ground. Defendant said he could perform the one-leg stand test without a problem. Nevertheless, he immediately fell when attempting the test. He leaned against the wall to maintain his balance.
Defendant complained of neck pain after attempting the oneleg stand test, and Sampson offered him medical care, which defendant declined. Sampson then asked defendant to touch the tip of his thumb to the tip of his four fingers, and count; according to the officer, defendant "couldn't even touch the finger to the thumb without fumbling and missing his thumb with his fingers." Defendant repeated to Sampson that he was a local, and questioned why he was being subjected to the tests.
Sampson arrested defendant and read him his Miranda*fn1 rights. Walking toward the patrol vehicle, defendant swayed back and forth and blurted out to the officer: "okay, I was driving and I had a few beers, but I'm a local and I know everyone. This is a small town. Why do we have to do this?" Defendant continued to claim that Ocean City was a small town where everyone knew everyone, and continued to ask why he was subject to the test.
The officer transported defendant to the Ocean City Police Department's breath testing room, where a video tape was made of the proceeding. That video was shown to the court. Sampson read defendant the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (the Standard Statement). When asked to take the breathalyzer test, defendant responded that he had "no reason not to" submit samples of his breath.
Sampson prepared an alcotest machine to take defendant's breath samples. When the officer asked defendant about his health, defendant said he did not know if he was sick, and had not seen a doctor in the past six months. Defendant said he was taking Tylenol for pain in his neck. While in the police station, defendant made a number of unsolicited statements, including that he "had a few beers" at a friend's house.
When the officer asked him to submit a sample of his breath, defendant was slow to respond. As he walked toward the alcotest machine, his gait was unsteady and he leaned on the counter for support. Defendant told the officer that he probably had more than enough to drink.
While defendant was speaking to Sampson, the alcotest machine timed out, and Sampson told defendant he would provide him with a second opportunity to submit a breath sample. He told defendant that if he did not give a sample of his breath, he would issue a summons to defendant for refusal. Sampson again read defendant parts of the Standard Statement. The officer did not, however, read the entire bottom portion of the statement. Nevertheless, he did tell defendant that he did not have the right to refuse to give a sample of his breath, and that the law required him to submit such a sample.
Sampson inserted another mouthpiece into the alcotest machine, and told defendant to take a deep breath and blow into it until instructed to stop. Defendant blew so lightly into the mouthpiece that the instrument did not detect the air. Although the officer instructed him to take a deep breath and blow until he was told to stop, defendant did not attempt to take a deep breath or again breathe into the mouthpiece. After the officer informed defendant that he was going to charge him with refusal to submit to a breathalyzer, defendant became angry and said he would get an attorney.
At trial, Officer Sampson testified that on the night of the incident, defendant's eyes were watery and bloodshot, his face was flushed, his speech was slow, slurred, rambling, and he was crying. The officer described defendant's mood as polite and cooperative at times, but antagonistic at other times.
Defendant claimed that his actions on the night he was arrested were the result of the residual effects of a traumatic brain injury he suffered in 1994 in a moped accident. The defense called two physicians to testify as to defendant's medical condition. Dr. John Costino, a physician, board certified in general medicine, sports medicine, rheumatology, and quality assurance and utilization, examined defendant on June 6, 2007, to assess his neurological status. He testified that a CAT scan that was administered to defendant in June 2007 showed that he suffered from encephalomalacia, which results in impaired speech, impaired motor skills, coordination, and personality issues. The doctor's opinion was that defendant's behavior - his demeanor, speech and motor skills on the night he was arrested - "could be" the result of the residual effects of his traumatic brain injury.
The defense also presented the testimony of Dr. Eugenia R. Rocksmith, a neurologist. She testified that defendant had sustained a right hemispheric hemorrhagic contusion, which was "basically a bruising of the brain associated with some bleeding and surrounding swelling." She asserted that as a result of the injury, defendant suffered cognitive disability, affecting his ability to perform normal, daily routine activities. She said defendant would experience problems "thinking clearly, problems with making good judgments, problems with reacting impulsively, problems with calculations, problems with ability to read, to write, problems with naming, problems with speech in general." She testified that these problems could include a "minimal degree of slurred speech" and "minimal upper left extremity weakness."
On examining defendant, the doctor found that defendant had "a little bit of swaying back and forth," and significant difficulty when trying to walk heel-to-toe. Defendant also had difficulty walking a straight line. The doctor had an opportunity to review the police report as well as the videotape of defendant at the Ocean City police headquarters on the night he was arrested. Her opinion was that defendant's demeanor, speech and motor skills as demonstrated on the night he was arrested were "pretty much exactly the same" as what she observed when she examined him.
Defendant did not testify at trial. His argument, however, as presented by counsel and the witnesses, was that his actions on the night he was arrested were not attributable to intoxication, but rather to the residual effects of his traumatic brain injury. Both the municipal court judge and the Law Division judge rejected that argument. In doing so, Judge Batten, in the Law Division, made the following extensive findings:
Well, I can appreciate that some degree of swaying or discomfort due to neck pain may leave one less than at a 90 degree angle with, or less than perpendicular to the grade of wherever one might be. But, there's much more than that here. There's unusual conduct. Why would this defendant stop alone outside a Wawa, lean on the building, fumble some are (sic) in the front of his pants, whether he was unzipping his pants or not? It's certainly consistent with one, a male, about to urinate along the side of a building. And, indeed, the video indicates that the officer asked -I'm sorry -- that the defendant asked Officer Sampson back at the station, "Can I take a leak somewhere?" Now this, admittedly, [was] some point in time subsequent to what the [Haags] saw at the Wawa parking lot. But, it's nonetheless not inconsistent.
To the extent that the car lunged forward and then lunged back, certainly this defendant was not in control of that motor vehicle at the time that he undertook its operation on those two occasions, most likely at the point in time, or whenever prior thereto, he brought it to a rest position at its resting straddling two parking spaces. The failure to bring an automobile properly within a single parking space, also consistent with a type of misjudgment, lack of mental acuity consistent with one who has consumed alcoholic beverages to an extreme degree.
So, while I understand the defense's position to a point, there's much more here. The officer at the scene, by his testimony, seemingly overwhelmed by the recognized and recognizable odor of alcoholic beverage on the defendant's breath, the defendant's wilful performance of the tests administered by Sampson on scene, the record is uncontroverted in that regard. . . .
The continuing pleas by the defendant to the officer to essentially give him a break because he's a local, and I find that the attempt was made at least on six occasions, in the booking room alone. . . .
"I'm a good guy drinking a few beers. Probably had more than enough. I wasn't driving." "I don't know why I'm even here." "You're local, I'm local." "You're going to make me drunk." "I was drinking," after the officer stated notably that the truth will set you free.
In response to the second request to submit to the breathalyzer test the defendant stated, "I had like five beers at this kid's house." But, then stated, "I'm an Ocean City guy." Then states, "You want me to play that game, I will. I'll get an attorney. I don't give a fuck." Emotional swings. He's sitting down. He's standing up.
When he attempted to stand on at least one occasion, his knees seemed to move in almost a circular fashion. When he did approach the breathalyzer machine had to lean against the counter.
The voice was slurred. And I can appreciate the portion of the record that stands for the proposition that some portion of that may be a lingering after-effect of the surgical procedure. But, considering the totality of all of these circumstances, that I can only conclude that this defendant was having great difficulty standing. He was having great difficulty standing still. He was having great difficulty maintaining his balance, difficulty speaking clearly. He certainly had great difficulty in his attempts to operate his motor vehicle to [l]eave the Wawa parking lot.
His conduct and demeanor at the side of the Wawa building, as initially observed and encountered by the [Haags], unexplained by anyone. And then finally his own admission, which the Court finds to be credible and critical, to having consumed five beers. In that regard, Dr. Rockstone (sic) was credible and there is little doubt, in fact no doubt in this Court's judgment, that the five beers consumed at whatever point in time prior to the circumstances at the Wawa observed by the [Haags] that whatever the defendant consumed, be it five beers or something else, adversely affected his faculties, whatever the sober starting point of those faculties may very well have been.
Stated otherwise, the testimony of Dr. Costino and the testimony of Dr. Rockside (sic), even if accepted at face value -- and there are issues with that -- but even if accepted at face value do not explain all of the conduct on the part of this defendant, including his comments found in this particular record, all of which [is] consistent with consumption of alcohol to such excess as deleteriously affects one's ability to operate safely a motor vehicle.
So, the Court enters a finding of guilty on any reasonable doubt with regard to the [DWI offense].
As to the refusal charge, the Law Division judge found that defendant's response to the officer that he had "no reason not to" take the test reasonably led the police officer to prepare the alcotest machine for the administration of the first test. The court continued as follows:
The defendant was then afforded in excess of two minutes time to walk just a few feet to the machine and submit a breath sample. He elected not to do that and instead intended to or attempted to localize, if you will, his way out of his dilemma and it did not work.
He was substantively administered what the final paragraph in the Refusal Form contains at the conclusion of the first attempt to administer the test by Officer Sampson. As counsel have acknowledge[d], the requirement of the most recent Appellate expression, [State v.] Spell[, 395 N.J. Super. 337 (App. Div. 2007), aff'd as modified, 196 N.J. 537 (2008)], not the law as of the date of this particular administration.
So, for all of those reasons I find that the officer certainly had probable cause to believe that the defendant had consumed alcohol in excess of [N.J.S.A.] 39:4-50. As a result, he enjoyed sufficient factual and legal basis to request a test. The test on two separate occasions was wrongfully withheld, therefore in violation of the [refusal] statute.
For purposes of the DWI statute, a person is "under the influence of intoxicating liquor" when the person "'has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" State v. Johnson, 42 N.J. 146, 165 (1965) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). Here, the record fully supports Judge Batten's findings that defendant was under the influence of intoxicating liquor during the incident at the Wawa. Although defendant argued that the manifestations of what could be intoxication were attributable to his 1994 closed head injury, the judge had more than sufficient credible evidence in the record to reject that argument. As the judge comprehensively explained, the observations by the Haags, defendant's comments that he had been drinking, his urinating on the ground outside of the Wawa, and the smell of alcohol on his breath belie his argument that he was not intoxicated. The record fully supports defendant's DWI conviction.
We also agree that the record was sufficient to convict defendant of the refusal to submit to a breathalyzer charge beyond a reasonable doubt. See State v. Cummings, 184 N.J. 84, 95-96 (2005) (requiring convictions of N.J.S.A. 39:4-50.4a to be beyond a reasonable doubt). Although defendant initially agreed to take the breathalyzer test, he subsequently refused, unequivocally, to take that test. This is evident from defendant's multiple statements to the police indicating that there was no reason for him to take the test; his refusal to blow into the machine after his initial half-hearted attempt; and his reference to his legal options if he was so charged. And too, Officer Sampson adequately informed defendant of the consequences of failing to take the test, telling him that if he refused to take the test, which was required by law, he would be charged with a violation of the statute. Given defendant's unequivocal refusal, the officer was not required to read the additional paragraph of the Standard Statement. Spell, supra, 196 N.J. at 539. Defendant's arguments to the contrary, and his remaining arguments with regard to his conviction for refusing to submit to the breathalyzer test, are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).