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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...