On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 80-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Following a trial in the Somers Point Municipal Court and a trial de novo in the Law Division, defendant Eric Redner was found guilty of Driving While Intoxicated, N.J.S.A. 39:4-50.
Defendant also was found not guilty of leaving the scene of an accident, N.J.S.A. 39:4-129,*fn1 and additional charges were dismissed. The conviction resulted in a suspension of defendant's driving privileges for a period of three months, twelve hours in the Intoxicated Driver's Resource Center as well as mandated fines, costs and penalties. Defendant appeals, and we affirm.
These are the relevant facts adduced from the record.
On April 30, 2006, at approximately 2:00 a.m., Officer Richard Dill of the Somers Point Police Department while off-duty, was at Charlie's Bar/Restaurant, when he heard a loud dragging noise coming from outside of the bar. He exited the bar and observed a red Nissan, with sparks flying, proceeding east on New Jersey Avenue. Officer Dill called central dispatch to report the incident. He then walked towards defendant's vehicle, where he observed defendant exit the driver's seat of the vehicle. The officer was approximately forty feet away at that point.
After leaving the vehicle, defendant walked approximately 100 to 150 feet eastward on New Jersey Avenue towards Bay Avenue. He staggered as he walked, with Officer Dill following at a distance of twenty to twenty-five feet. Somers Point Patrolman Charlie Somers then arrived at the scene in a marked police vehicle. Officer Dill stood by while Officer Somers continued the investigation. Standing eight to ten feet away from defendant, Officer Dill could smell an odor of alcohol. Based upon his observations, Officer Dill concluded that defendant was intoxicated.
Officer Somers, a nine-year veteran of the department, was Breathalyzer and then Alcotest certified, and had been involved in 25 to 30 DWI investigations. He had been trained in administering field sobriety tests. He was dispatched to Charlie's shortly after 2:00 a.m. When he arrived at Shore Road, the officer was advised by two bystanders that a Nissan Pathfinder had just struck a pole, drove up onto the sidewalk and almost hit Charlie's Bar, and then made a right turn onto New Jersey Avenue. Officer Somers immediately proceeded down New Jersey Avenue where Officer Dill pointed out the vehicle that struck the pole and identified defendant as the driver.
When Officer Somers exited his police vehicle, defendant was walking toward Bay Avenue. Officer Somers called for the defendant to return, and defendant complied. Officer Somers also made observations of the vehicle. He noted that the fender was missing, and the tire was bent and underneath the car. The car was a short distance away from Charlie's and located in the middle of the block. Officer Somers asked defendant whether he was driving the vehicle. Defendant responded in the affirmative. While talking to defendant, Officer Somers noted a strong odor of alcohol coming from his breath. Officer Somers asked defendant if he had been drinking. Defendant responded that he had been. Defendant was moving slowly, was lethargic, his speech was slow, he was swaying and was not sturdy on his feet.
While Officer Somers inquired about the accident and defendant's drinking, defendant became agitated and started to walk away and pace. At the same time, bar patrons were gathering to observe the scene. The area was becoming hectic, as a number of intoxicated people were exiting from the bar yelling. Concerned about safety, the officer effected an arrest and transported defendant to the station to conduct sobriety tests. When the defendant was placed under arrest, he was read his Miranda*fn2 warnings. Defendant, in handcuffs, was transported in a police vehicle to the Somers Point Police Department.
At the station, Officer Somers administered a series of sobriety tests. Defendant was asked to recite the alphabet but was unable to do so without stopping on two or three occasions.
The officer then administered the "walk and turn" test. Before this test was administered, the officer asked defendant if he had any injuries that would prevent him from performing the test. Defendant responded that he did not. Defendant was unable to walk heel to toe. He exhibited poor balance, putting his hands up. He was unable to walk a straight line, drifting ...