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State v. Perez

August 25, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JUAN PEREZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 71-2006.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2009

Before Judges Carchman and Parrillo.

Following a municipal court trial and a de novo trial in the Law Division, defendant Juan Perez was found guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; failure to maintain lane, N.J.S.A. 39:4-88b; and failure to produce a valid insurance card, N.J.S.A. 39:6B-2. As this was defendant's fourth DWI conviction, Judge Mayo in the municipal court sentenced defendant to a ten-year license suspension, 180 days in jail, installation of an ignition interlock device as well as statutorily mandated fines, penalties and costs. Defendant received fines for the other motor vehicle violations. Judge Nieves, in the Law Division, imposed the same sentence. Defendant appeals, and we affirm.

The facts are simply stated. On February 3, 2005, Officer Joseph Marcantonio and Sergeant Quercia, his supervisor, of the East Brunswick Police Department, were on patrol when, at 12:20 a.m., they observed defendant proceeding at a speed of 25 to 30 miles per hour in a 45-mile per hour zone.

The circumstances regarded by Officer Marcantonio as unusual defendant's taillights frequently illuminating even though there was no car in front of him or obstruction in the road. The officer then observed defendant's car drift into the left lane, return to the middle lane, again drift into the right lane and return to the middle lane. Defendant's brake lights illuminated intermittently and defendant continued to travel at a very low rate of speed.

Officer Marcantonio activated his overhead lights and attempted to stop defendant's car. Defendant did not stop immediately, instead he continued for one-quarter of a mile and then stopped.

The officer approached defendant's car and asked him for his license and registration. Defendant was slow to respond and fumbled in his wallet for his license. Defendant produced a license but did not produce a registration or an insurance card.

While talking to defendant, the officer smelled a strong odor of alcohol on defendant's breath. According to the officer, defendant's eyes were bloodshot and watery and his eyelids were droopy. Defendant's speech was slurred, and he appeared to be sleepy.

Officer Marcantonio asked defendant where he was coming from and how much he had to drink. Defendant claimed he had one beer. The officer asked defendant to perform a Standardized Field Sobriety Test which consisted of a series of tests. Defendant stated that he was too fat to perform the "one leg" test. Officer Marcantonio did not perceive defendant to be too large to perform the test and has experienced only one or two people in his extensive career who were too large to perform the test. Officer Marcantonio gave defendant a score of four out of four, "the maximum because [the officer] felt [defendant] could have performed it but he did not."

Defendant failed to successfully complete a "walk and turn" test that was administered, and the officer observed that defendant was swaying as he stood outside the car.

Based on his observations, Officer Marcantonio arrested defendant for driving while intoxicated. He transported defendant to the police station to administer a breathalyzer test. While in the police car, Officer ...


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