On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 17-7-C-T-24.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Defendant, Eshri Jairam, appeals from his conviction after a trial in the municipal court, and in the Law Division, following a trial de novo on the record, for driving while under the influence. N.J.S.A. 39:4-50. Defendant claims (1) that the breathalyzer operator failed to follow appropriate procedures before administering the breathalyzer test, (2) the State failed to prove the accuracy of the breathalyzer readings by clear and convincing evidence, and (3) his conviction was against the weight of the evidence. We reject each of these contentions and affirm.
The evidence presented before the municipal court and before the Law Division, de novo, was as follows. On October 21, 2005, defendant was stopped at a red traffic light on Rock Avenue at its intersection with Route 22 in North Plainfield. Before the light turned green, defendant proceeded through the light. North Plainfield Police Officer Richard Dow was stopped behind defendant's vehicle. After witnessing defendant proceed through the red light, he activated his overhead lights and stopped defendant's vehicle approximately 100 yards away from the intersection.
Once defendant's vehicle was stopped, Officer Dow approached and asked defendant to produce his credentials. When defendant handed his credentials to the officer, his hand shook. Officer Dow told defendant that he had witnessed him drive "across the red light and crossed [sic] 22." Defendant responded that he thought the light had turned green. In response to Officer Dow's inquiry from where he had been traveling, defendant stated that he was coming from Charlie Brown's, a restaurant. Defendant also admitted to having had a couple of beers. During this colloquy with defendant, Officer Dow detected an odor of alcohol emanating from defendant's mouth.
At Officer Dow's request, defendant exited his vehicle and attempted to perform a number of field sobriety tests that Officer Dow requested. The officer testified that defendant was unable to satisfactorily perform the tests and that he was of the opinion that defendant "was not able to drive the vehicle, and [he] placed [defendant under] arrest for driving while intoxicated." Defendant was then taken to police headquarters where he received Miranda*fn1 warnings and a certified breathalyzer officer administered a breathalyzer test. The test results reported two readings of .14 breath alcohol content (BAC). Defendant was issued summonses charging him with DWI. He was also charged with failure to observe a traffic control device. N.J.S.A. 39:4-81.
At trial, defendant presented three expert witnesses. Dr. Gary Lage, a toxicologist, testified that defendant, who is a mechanic, had been exposed to volatile chemical compounds in brake cleaning fluids and fuel injector cleaner while working thirteen to fifteen hours on the day of his arrest. He identified the volatile compounds in the fluids as isopropyl alcohol, naphtha, methanol, and acetone. He opined that as a result of defendant's exposure to these volatile chemicals for hours prior to his arrest, the breathalyzer, which he opined is an indirect measurement of blood alcohol content and which is unable to distinguish the various chemicals, gave a false reading.
Dr. Clark Miller, an expert in podiatry and podiatric surgery, testified that he performed a visual and computerized gait analysis of defendant and determined that defendant suffered from flat-footedness, a one-quarter inch right shoulder drop, and a short Achilles tendon. In his opinion, defendant, without any alcohol consumption and under optimum conditions, would be unable to perform standardized field sobriety tests.
Finally, Herbert Leckie, a former New Jersey State Trooper and expert in field sobriety examination, testified that Officer Dow failed to conduct the field sobriety testing in accordance with the National Highway Traffic Safety Administration guidelines. Specifically, based upon Officer Dow's testimony, Leckie testified that defendant was not placed in the proper starting position for the one-leg-stand test, but rather in the heel-to-toe position with his arms down, which is the stance for the walk-and-turn test. He explained that in doing so, defendant was placed in an unbalanced position that affected his ability to perform the one-leg-stand test.
Additionally, Leckie testified that defendant was never told to look down at the raised foot, which Leckie believed makes the test easier because the defendant would not have been "distracted by either movements of other motor vehicles passing by, movements of the police officer, [or] the overhead lights flashing." Leckie opined that the last deficiency in the administration of the leg raising test occurred when Officer Dow "never informed the defendant to keep his arms down at his sides." He explained that because one of the scoring factors for the test involves consideration of whether a driver raises his arms more than six inches above the waist during the test, unless told not to do so, "defendant would not know that he is not allowed to raise his arms away from his sides during the administration of this test."
With respect to the walk-and-turn test, Leckie testified defendant started the test with his feet next to one another rather than heel-to-toe, was not told to look down as he performed the exercise, which would have minimized any distractions, and was not advised to keep his arms at his sides.
Leckie reiterated that defendant would not have known that raising his arms would be scored against him for purposes of evaluating his performance on this test. Leckie also testified that the degree of reliability of the one-leg-stand test and the walk-and-turn test would ...