On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 08-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Defendant Robert Tinli appeals from an order of the Law Division finding him guilty of refusing to submit to a breath test (refusal) in violation of N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a.*fn1 Defendant was sentenced as a third-time offender under N.J.S.A. 39:4-50.4a, and he was fined $1,006, assessed $33 in costs, and $200 for the Driving While Intoxicated Surcharge. His driving privilege was suspended for ten years. Defendant filed a timely Notice of Municipal Appeal with the Superior Court, Law Division, Middlesex County, where his conviction and sentence were upheld. For the reasons which follow, we affirm.
While on duty at about 11:15 p.m. on February 21, 2004, East Brunswick Officer James W. Angermeier and his partner observed a stopped car in the middle of Old Bridge Turnpike without flashing hazard lights. Within that vehicle, the officer found defendant, Robert Tinli, slumped over the steering wheel. The engine was running. Officer Angermeier's partner opened the door of the passenger's side and turned off the ignition. Then, Officer Angermeier knocked on defendant's window, at which point defendant unsuccessfully attempted to shift the car into drive.
Upon opening the door of the car, Officer Angermeier detected the odor of alcohol on defendant's breath. He also observed that defendant's eyes were bloodshot and watery, and that he was slurring his speech. The officers then administered three field sobriety tests, all of which defendant failed. They arrested defendant and transported him to the East Brunswick Police Headquarters to administer a breath test.
At police headquarters, Officer Angermeier read defendant the standardized statement of the consequences for the failure to submit to a breath test required under N.J.S.A. 39:4-50.2(e). When asked if he would give samples of his breath, defendant only answered that he wanted to speak to an attorney. Officer Angermeier next read a prepared follow-up paragraph putting defendant on notice that an ambiguous answer would be deemed a refusal. Defendant answered, "everything is setup for you. I want to speak to an attorney." This was considered a refusal, and defendant was issued a summons for violation of N.J.S.A. 39:4-50.4a. In addition, defendant was issued summonses charging him with the following: driving under the influence in violation of N.J.S.A. 39:4-50; reckless driving in violation of N.J.S.A. 39:4-96; obstruction of traffic in violation of N.J.S.A. 39:4-67; parking on highways in violation of N.J.S.A. 39:4-136; driving without insurance in violation of N.J.S.A. 39:6b-2; and driving without documents in motor vehicle in violation of N.J.S.A. 39:3-29.
On June 23, 2005, the municipal court judge found defendant guilty of obstruction of traffic, driving under the influence, and refusal to take a breath test. All other charges were dismissed. Defendant appealed to the Law Division, seeking reversal of the convictions for driving under the influence and refusal to submit to a breath test.
Judge Bradley J. Ferencz heard the municipal appeal in the Law Division, Middlesex County, and entered an order dated January 18, 2006 memorializing his decision. Judge Ferencz reversed in part, and dismissed the charge of driving under the influence in violation of N.J.S.A. 39:4-50. He concluded that the destruction of the videotapes of the traffic stop and the failure of the police to respond to defendant's timely request for discovery "effectively deprived [defendant of] any meaningful chance of rebutting the police testimony[.]" However, the conviction for refusal in violation of N.J.S.A. 39:4-50.4a was remanded to the municipal court for a decision in accordance with State v. Cummings, 184 N.J. 84 (2005). Cummings, decided on June 23, 2005, the same day as the hearing in municipal court on this case, held that refusal must be proven beyond a reasonable doubt and not merely by a preponderance of the evidence. Id. at 98.
On remand, the then sitting municipal court judge heard the testimony of both Mr. Tinli and Officer Angermeier. The judge made specific findings that the testimony of Officer Angermeier was more credible and that the State had proved its case beyond a reasonable doubt. Again, defendant appealed.
On June 28, 2007, the reviewing Law Division judge, Judge Barbara C. Stolte, heard the de novo appeal. Giving due regard to the municipal court judge's credibility assessment of the witnesses, as required by State v. Johnson, 42 N.J. 146 (1964), Judge Stolte upheld both the conviction for refusal in violation of N.J.S.A. 39:4-50.4a and defendant's sentence as a third-time offender. Defendant's current appeal is from those determinations.
In his brief on this appeal defendant raises a single contention:
POINT I: THE COURT ERRED BY ABUSING ITS [sic] DISCRETION IN FINDING APPELLANT GUILTY ON THE CHARGE OF REFUSING TO SUBMIT TO A BREATH TEST PURSUANT TO N.J.S.A. 39:4-50.4(a) HAVING BASED SUCH DETERMINATION ON INDEPENDENT ANALYSIS OF FACT AND CASE LAW IN CONTRADICTION TO THE FINDINGS OF A PRIOR ...