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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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