On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 09-08-C-T09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Defendant, Steven M. Darien, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a,*fn1 for which he was sentenced to seven months loss of driving privileges and appropriate fines and penalties. Defendant argues:
THE STATE FAILED TO DISPROVE THE DEFENDANT'S AFFIRMATIVE COMMON-LAW DEFENSE OF IMPOSSIBILITY OF PERFORMANCE (i.e., HIS PHYSICAL INABILITY TO PROVIDE SUFFICIENT BREATH SAMPLES CAPABLE OF ANALYSIS BY THE ALCOTEST OPERATOR) BEYOND A REASONABLE DOUBT, NECESSITATING A REVERSAL OF HIS CONVICTION FOR REFUSAL AND THE ENTRY OF A FINDING OF NOT-GUILTY OF N.J.S.A. 39:4-50.4A [NOT RAISED BELOW]
THE LAW DIVISION MISAPPLIED STATE V. STEVER, COMPELLING THIS DEFENDANT TO REITERATE THAT HE WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR ERRONEOUSLY COMMENTED UPON, AND THE COURT ERRONEOUSLY CONSIDERED, EVIDENCE OF THE DEFENDANT'S POST-ARREST SILENCE ABOUT HIS PHYSICAL INABILITY TO PROVIDE ADEQUATE BREATH SAMPLES FOR ANALYSIS.
We reject these arguments and affirm.
On November 3, 2007 at about 10:35 p.m., Somerset County Sheriff's Officer Louis Bimble observed defendant driving erratically, weaving within his lane and crossing over the double yellow lines. Bimble stopped defendant, after which he observed some indicia of intoxication, including the odor of alcohol, fumbling in producing requested documents, and watery eyes. In response to Bimble's question, defendant denied consuming any alcoholic beverages. Bimble subjected defendant to several roadside sobriety tests. Based upon the manner of defendant's driving, his appearance and demeanor, and his performance on the sobriety tests, Bimble formed the opinion that defendant was under the influence of intoxicating beverages, and he placed him under arrest for driving while intoxicated.
Bimble placed defendant in his marked sheriff's vehicle and transported him to the Bridgewater Police station. Upon arrival, Bridgewater police officer John Mitzak, a certified Alcotest operator, joined Bimble and defendant. As defendant entered the police station, he stumbled. Bimble caught him to keep him from falling and asked again whether he was sure he had not had anything to drink. According to Bimble, defendant "may have told me I had two drinks." While being processed at the police station, Bimble administered Miranda*fn2 warnings to defendant.
Bimble read to defendant the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, and defendant answered affirmatively that he would submit to chemical testing. Defendant signed the Miranda rights form that he refused to answer any questions. After observing defendant for twenty minutes at the stationhouse, Mitzak explained the Alcotest procedure to defendant and read verbatim from the prescribed instruction form: "I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?" Defendant stated that he understood the instructions.
The Alcotest device requires a breath sample of a minimum of 1.5 liters for 4.5 seconds. Mitzak performed eleven tests on defendant, but each time defendant failed to provide an adequate sample. According to Mitzak, defendant "wouldn't even form a seal with his mouth around the tube to even give a proper sample." During the course of the testing, Mitzak took out a new mouthpiece, unwrapped it, and demonstrated to defendant how to place his mouth around it. Defendant continued in his failure to comply. Mitzak reiterated: "He wouldn't ...