August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARIO FERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 12A-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 28, 2009
Before Judges Winkelstein, Gilroy and Chambers.
Following a trial de novo in the Law Division, defendant Mario Fernandez appeals his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); and for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a.*fn1 We affirm.
On January 9, 2005, Patrolman Jason Peltack of the Clinton Township Police Department arrested defendant and issued him summonses for DWI; refusing to submit to a breathalyzer test; careless driving, N.J.S.A. 39:4-97; and for failure to operate a motor vehicle within a single lane, N.J.S.A. 39:4-88b. On April 21, 2005, after trial in the North Hunterdon Municipal Court, defendant was convicted of DWI, refusing to submit to a breathalyzer test, and failure to operate his motor vehicle within a single lane. Defendant was found not guilty of careless driving.
On sentencing, the Municipal Court merged the conviction of failure to maintain lanes with the DWI conviction. On the DWI conviction, the court suspended defendant's driving privileges for seven months. On the refusal conviction, the court ordered defendant to serve twelve to forty-eight hours at an approved Intoxicated Driver Resource Center, and suspended his driving privileges for three months, concurrent with the suspension imposed on the refusal conviction. The court stayed the license suspension pending appeal to the Law Division.
On March 17, 2006, the Law Division again found defendant guilty of DWI, but remanded defendant's conviction for refusing to take a breathalyzer test for the Municipal Court to re-determine defendant's guilt on that charge based on the standard of beyond a reasonable doubt, the Supreme Court then having recently decided State v. Cummings, 184 N.J. 84, 95-96 (2005) (holding that the standard of proof for conviction under the refusal statute is beyond a reasonable doubt). On April 25, 2006, the Municipal Court again found defendant guilty of refusing to submit to a breathalyzer test based on the standard of beyond a reasonable doubt.
On January 24, 2007, the Law Division also found defendant guilty on the refusal charge. On March 1, 2007, the Law Division entered an order adjudicating defendant guilty of both DWI and refusing to submit to a breathalyzer test, and imposing the same sentences as imposed by the Municipal Court. The Law Division also stayed the suspension of defendant's driving privileges pending appeal.
The salient facts as adduced from the transcripts of the proceedings before the Municipal Court are as follows. On January 9, 2005, at approximately 12:30 a.m., Patrolman Peltack observed a white Chevrolet Blazer traveling northbound on Route 31 in Clinton Township. Peltack described the vicinity of Route 31 where he had observed the motor vehicle as a two-lane highway, straight with a slight upgrade, with opposite lanes of travel divided by either a center line or dotted lines, and with a right-hand shoulder line. Peltack observed the vehicle travel over the shoulder line, return to its lane of travel, and then swerve over the dotted line that separated the highway's two lanes of travel. Within the distance of one-quarter of a mile, Peltack observed this occurrence five times. Although Peltack activated his emergency lights, the other vehicle did not immediately stop. Peltack then activated his emergency siren; about one-quarter of a mile down the road, the vehicle finally pulled over. Peltack approached the driver, later identified as defendant, and asked him for his driver's license, vehicle registration, and insurance card. Defendant provided the documents. When Peltack asked defendant where he was coming from, defendant told him from work in Newark.
While Peltack conversed with defendant, he detected an odor of alcohol on defendant's breath and noticed that defendant's speech was mumbled and slurred. When inquiring of defendant how much alcohol he drank that night, defendant replied that defendant could not speak English. Peltack then asked the same question, using the Spanish word for "beer," and defendant replied that he had had three beers. Contrary to defendant's protestation that he could not speak English, Peltack believed that he understood the questions asked of him. Peltack described defendant as speaking with an accent, acknowledging that there was a "small language barrier" between himself and defendant.
Peltack called for the assistance of another officer. Before the second officer arrived, Peltack asked defendant to get out of his car to perform field sobriety tests. Prior to administering the tests, Peltack inquired whether defendant had taken medication or had any injuries to his legs prohibiting him from performing the tests; defendant said "no." Initially, Peltack asked defendant to perform the one-legged stand, but defendant responded that he could not count in English. On receiving that advice, Peltack asked defendant to perform the walk-and-turn test instead.
Peltack first demonstrated to defendant how to perform the walk-and-turn test, which required defendant to walk nine steps forward, heel-to-toe; turn around; and walk nine steps back, heel-to-toe. While Peltack demonstrated the test, defendant began the test himself and had to be instructed by Peltack to wait. As defendant waited to begin the test, Peltack noted that he swayed from side to side. When defendant performed the test, he failed to touch heel to toe, lost his balance, and had to step to the side before completing the test. Based on defendant's performance of this test, and other observations at the scene, Peltack formed the opinion that defendant was under the influence of alcohol.
As Peltack concluded the walk-and-turn test, Clinton Patrolman Harry Bugal arrived on the scene. Bugal performed the horizontal gaze nystagmus (HGN) test on defendant. Bugal instructed defendant to follow the movement of his pen with his eyes only, not with his head. Before administering the test, Bugal asked defendant if he understood his instructions, and defendant said "yes." From the manner in which defendant responded to Bugal's questions, the officer believed defendant understood English.*fn2 While at the scene, Bugal observed that defendant had trouble maintaining his balance, his speech was mumbled, and his face was flushed. In addition, he detected a very strong odor of alcoholic beverage on defendant's breath.
Peltack placed defendant under arrest for DWI. Bugal transported defendant back to the police station at which time defendant had fallen asleep in the back seat of the patrol car. At the police station, Bugal placed defendant in a holding cell and read the standardized statement for operation of a motor vehicle to him as required by N.J.S.A. 39:4-50.2(e). While Bugal read the standardized statement verbatim in English, defendant was awake, sitting up, and attentive.
The standardized statement form contains eleven numbered paragraphs.*fn3 Between the sixth and seventh paragraphs, defendant interrupted Bugal, shook his head, and said "no." Bugal continued reading. Near the end of completing the standardized statement, defendant said "no" and that he wanted a lawyer. Bugal then read the final paragraph to defendant, which gave him a chance to reconsider his choice, and defendant again said "no." Based on defendant's responses, Bugal issued him a summons for refusing to take the breathalyzer test.
Peltack completed his arrest report at police headquarters. According to Peltack's report, defendant provided in English all the necessary information for him to complete the report, including where defendant worked. Peltack testified that defendant answered each question in English as the questions were asked of him.
Although defendant did not testify, he presented his wife Nora Fernandez, and his friend, Jose Fernandez (no relation) as witnesses. These witnesses testified that despite defendant having lived in this country since 1980, defendant's ability to speak or understand English was minimal. According to defendant's wife, defendant knew how to say his name and address and a few words, but he could not converse in English. She also denied that her husband understood more English than he could speak. Jose Fernandez testified that defendant had not been educated in America and referred to him as "not a school guy," that is, he did not attend school in the United States. Jose Fernandez opined that if defendant had not been allowed to take his driver's test in Spanish, he would not have passed it.
The Municipal Court accepted the testimony of defendant's witnesses that defendant had a low-level functioning ability to communicate in English but had no command of the English language. The court found that defendant had been adequately informed in English of the standardized statement and that defendant had refused to take the breathalyzer test. Based on the officers' observations of defendant and the way defendant operated his car, defendant's performance on the walk-and-turn test, and his falling asleep in the patrol car on five-mile drive to the station, the court found defendant guilty of DWI.
On remand, the Municipal Court determined that defendant was guilty beyond a reasonable doubt of the refusal charge. In so finding, the court found that defendant had understood what was asked of him even though he did not have a functional command of English, based on the fact that defendant had asked to talk to a lawyer. However, the court did not make that latter finding beyond a reasonable doubt. That is, the court found it possible that defendant did not understand that part of the statement which explained he did not have the right to talk to a lawyer before taking the test. What the court did find beyond a reasonable doubt was that defendant refused to take the test.
With respect to defendant's conviction under the refusal statute, the Law Division deferred to the Municipal Court's finding that defendant understood the gist of the implied consent form even though he may not have understood all the subtleties contained therein. In so doing, the Law Division noted that: 1) defendant did not claim any difficulties with the English language until Peltack started to question him about alcohol; 2) defendant understood the question about whether he was taking any medications; 3) defendant understood that he had to walk nine steps forward in taking the field sobriety test, even though Peltack only demonstrated three steps for him; 4) defendant told Bugal that he understood the instructions for the HGN test, as evidenced by the fact that he performed the test as instructed; and 5) Peltack communicated well enough with defendant to obtain defendant's personal information needed to complete the arrest report.
As further evidence that defendant understood the standardized statement form, the Law Division found that: 1) defendant had shaken his head "no" and interrupted Bugal's reading of the form, not only indicating that he understood what had been read to him, but also expressing his disagreement with being issued a separate summons for refusing to submit to a breath sample; 2) defendant told Bugal he wanted a lawyer, and then responded "no" when asked a second time if he would consent to the taking of his breath sample; 3) defendant had resided in the United States for twenty-five years; and 4) the Spanish version of the New Jersey driver's manual, which is provided by the Motor Vehicle Commission, specifically addresses breathalyzer tests and the implied consent law.
On appeal, defendant raises the following arguments for our consideration:
DEFENDANT'S CONVICTION OF REFUSAL TO SUBMIT TO A BREATH TEST SHOULD BE REVERSED BECAUSE HE WAS NOT INFORMED AS REQUIRED BY THE STATUTE OF THE CONSEQUENCES OF REFUSING TO SUBMIT TO A BREATH TEST.
THE "SHALL INFORM" REQUIREMENT OF THE REFUSAL STATUTE MUST BE INTERPRETED TO REQUIRE THAT THE STANDARD STATEMENT BE PROVIDED IN A LANGUAGE THAT THOSE ARRESTED FOR REFUSAL CAN UNDERSTAND; TO INTERPRET THE STATUTE OTHERWISE WOULD VIOLATE FEDERAL AND STATE CONSTITUTIONAL PROTECTIONS OF DUE PROCESS AND EQUAL PROTECTION.
THE CASE OF STATE V. NUNEZ IS DISTINGUISHABLE BECAUSE IT DID NOT INVOLVE A REFUSAL CONVICTION AND DID NOT RAISE CONSTITUTIONAL ISSUES; ADDITIONALLY, THE LEGAL LANDSCAPE WITH RESPECT TO ACCOMMODATING THE RIGHTS OF LINGUISTIC MINORITIES HAS CHANGED SIGNIFICANTLY IN THE THIRTY-ONE YEARS SINCE NUNEZ HAS BEEN DECIDED.
THE STATE FAILED TO PROVE THAT DEFENDANT WAS DRIVING WHILE INTOXICATED BEYOND A REASONABLE DOUBT; FURTHERMORE, THE CONSTITUTIONAL VIOLATION WITH RESPECT TO THE REFUSAL CHARGE TAINTS THE SUFFICIENCY OF DRIVING WHILE INTOXICATED CHARGE; ACCORDINGLY, HIS CONVICTION SHOULD BE REVERSED.
Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function...." Ibid.
Our scope of review is a limited one. "It is not our function... to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction... [that we] should appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In Points I, II, and III, defendant challenges his conviction for refusing to submit to a breathalyzer test. Defendant argues that because he did not understand English sufficiently, he did not understand the standardized refusal statement read to him by the police after his arrest. Defendant contends that the State had an obligation to inform him in his native Spanish language, and that he had the right to have an independent blood-alcohol test performed by a person of his own choosing. Defendant asserts that he has a constitutional and statutory right to have had the standardized statement read to him in the language he understands, other than English.
We have considered defendant's arguments in light of the record and applicable law. We reject defendant's contention that he was not sufficiently versed in English to understand the standardized refusal statement read to him at police headquarters. The Law Division determined that defendant sufficiently understood the standardized statement read to him in the English language. The record contains credible evidence supporting the Law Division's determination. Moreover, we reject defendant's argument that he had a constitutional and statutory right to have had the standard refusal statement read to him in Spanish. For the reasons recently expressed by Judge Sabatino in State v. Marquez, ___ N.J. Super. ___, ___ (App. Div. 2009) (slip op. at 1-2).
In Point IV, defendant challenges his conviction for DWI. We have considered defendant's argument in light of the record and reject the argument as meritless. R. 2:11-3(e)(2). Proof of a defendant's physical condition typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give his or her lay opinion as to whether a defendant is under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005).
Here, the Law Division found, based on the testimony of the police officers, that the record contained ample credible evidence to support the Municipal Court's determination that defendant had operated his motor vehicle under the influence of alcohol, even without considering defendant's refusal to submit to the breathalyzer test. We agree.