On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Fuentes and Gilroy.
Defendant Christopher P. Weber was tried and convicted before the Mountainside Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a.*fn1 Because this was his third DWI conviction, the Municipal Court Judge suspended defendant's driving privileges for ten years, revoked his vehicle registration for ten years, and imposed a two-day*fn2 jail term to be served concurrent with forty-eight hours in the Intoxicated Driver Resource Center. On the refusal conviction, the Municipal Court suspended defendant's driving privileges for ten years, to run concurrent with the ten-year suspension on the DWI conviction, and assessed the mandatory fines, surcharges, and costs.
On defendant's petition for a de novo review pursuant to Rule 3:23-1, the Law Division acquitted defendant of DWI but upheld the conviction of the refusal charge. The Law Division imposed the same sentence imposed by the Municipal Court for this conviction.
We will limit our factual recitation to those facts relevant to the conviction for refusing to submit to the breathalyzer test. The stop at issue was initiated when Westfield police officer Michael Walsh observed defendant driving with a flat tire and his passenger side tail or brake light out. At the stop, Walsh observed that defendant had slow and slurred speech and red and watery eyes. After defendant was unable to perform several psychophysical tests, he was arrested for driving while intoxicated. The record, which includes a video of the police officers interacting with defendant at police headquarters, shows Walsh reading the statutorily required statement to defendant in a clear and audible voice. Each time Walsh asked defendant if he understood that he did not have the right to refuse, defendant's response was: "I don't understand."
The record also shows defendant bending over, unsteady on his feet, and at times, sitting on a nearby bench, in direct contravention of Walsh's repeated admonitions to the contrary. By way of explanation for his behavior, not only at this point of his detention but from the outset of his interactions with the police, defendant presented the testimony of Dr. Richard Filapone, a neuropsychologist. Based on his review of defendant's medical records, which included documents relating to an injury defendant sustained in a motor vehicle accident while rollerblading the day before this arrest, Dr. Filapone opined that defendant exhibited indicia of "cognitive confusion." According to Dr. Filapone, this "brain injury" may have caused defendant's behavior at the police station, which was admittedly inconsistent with the way he behaved at the scene of the motor vehicle stop.
After considering this evidence, Judge Peim found that:
[O]fficer [Walsh] slowly and clearly read [the required statement] to the defendant. The defendant was clearly advised that he didn't have a right to refuse or to have an attorney present. I do not find that the defendant was confused or disoriented to the extent that he didn't understand what was being told to him. Based on this evidence I find the defendant understood what his obligations were and his words and intentions amounted to a refusal under these circumstances that violates the statute.
Judge Peim also expressly rejected Dr. Filapone's testimony as unpersuasive, not based on all of the relevant facts, and, at times, "mere speculation."
Defendant now appeals raising the following argument.
THE COURT FAILED TO PROPERLY ADDRESS THE CONFUSION DOCTRINE DESPITE ABUNDANT MEDICAL EVIDENCE OF A ...