On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 21-08-CT-24.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 12, 2009
Before Judges Stern and Sabatino.
This is an appeal from the Law Division's determination that defendant was guilty of operating a motor vehicle while intoxicated in violation of N.J.S.A. 39:4-50. On appeal, defendant contends that the record lacks sufficient credible evidence of intoxication to prove beyond a reasonable doubt that he operated his vehicle while intoxicated. In particular, defendant points to the inconsistent statements of one of the testifying police officers, Sergeant Gene McAllister, the effect of defendant's medical condition on the field sobriety tests, and errors in the administration of those tests. We conclude that there is sufficient evidence in the record to sustain the Law Division's conclusion that defendant was operating a vehicle under the influence of alcohol in violation of N.J.S.A. 39:4-50, and affirm its judgment.*fn1
On November 26, 2006, between midnight and 1:00 a.m., Sergeant McAllister of the Watchung Police Department observed defendant's car in "the side view mirror" approaching from behind on Route 22 at a speed in excess of the limit. He then observed defendant pass his vehicle and "drift" from the center lane partially into the left lane forcing the car in the left lane "to brake to avoid a collision." Sergeant McAllister observed defendant's car drift to both the left and right. Sergeant McAllister then activated his emergency lights. The patrol car's video recorder was also activated. Defendant continued to drive for approximately one mile after the emergency lights came on while drifting twice to the left and twice to the right and passing another car. Defendant did not actually change lanes during any of these "drifts".
After defendant pulled over, Sergeant McAllister asked defendant for his driver's license and vehicle documents. Defendant produced the driver's license and some unrequested and "unrelated documents" including "parking placards." McAllister also "detected an odor of an alcoholic beverage" emanating from defendant. Defendant told Sergeant McAllister that he had consumed two glasses of wine with dinner.*fn2
Believing that defendant was intoxicated, McAllister called Officer Edward ("Mike") Sugalski to the scene to administer the field sobriety tests. Officer Sugalski conducted the field sobriety tests because he is trained in administering them and is a certified Breathalyzer and Alcotest operator. He also smelled the odor of alcohol on defendant's breath. Sugalski first conducted the "one-legged-stand" test.*fn3 Officer Sugalski testified that he concluded defendant was impaired based on his performance during the one-legged stand test. Defendant was unable to hold his leg six inches off the ground and maintain his balance, and defendant incorrectly counted from one to 30 by skipping number 16 and going directly from number 19 to number 30.*fn4
The second field sobriety test conducted was the "walk and turn" test. Officer Sugalski instructed defendant to walk nine steps forward, turn right and walk nine steps back. However, Officer Sugalski demonstrated by turning left instead of turning right. Defendant did not touch his heels to his toes, went ten steps in each direction instead of nine, walked ten steps forward instead of nine, and then asked for further instructions in an apparent bout of forgetfulness.
Officer Sugalski also conducted the finger dexterity test, during which defendant became confused after counting to four and simply stopped, and the alphabet test, during which defendant's speech was "garbled and unintelligible." Based on defendant's performance in the field sobriety tests, Officer Sugalski believed defendant to be "impaired."
Defendant largely attributes his performance on the field sobriety tests to his medical condition. Dr. Ronald Primas testified that he has been treating defendant for eleven years for hypertension, gout, and chronic lead poisoning. The symptoms of gout are severe pain, swelling of the joints, redness, and gait imbalance. Defendant suffers from gout in his foot, and his right and left ankles. Dr. Primas further testified that alcohol can cause a gout flare-up which would affect "his walking ability." Defendant also suffers from lead poisoning as a result of multiple lead pellets in his body. Dr. Primas explained that "because [of Cinque's elevated] lead level, he's lost some sensation in some of his peripheral nerves, specifically the bottom of his feet" when weight-bearing is involved.
Herbert Leckie, an expert called by defendant on the administration of field sobriety tests, testified that trained field sobriety test administrators ask about medical conditions that affect the ability to perform. He also noted the "one-leg stand" test was not administered correctly and that defendant wasn't directed to look at his feet during the "walk and turn" test. Leckie further stated that defendant's spinal fracture and gout "could effect a person's ability to perform these types of tests." He further discussed the reliability of the administered tests.
The municipal court found defendant guilty of DWI because of his slurred speech and odor of alcohol and because after the incident defendant did not report to the doctor any medical episode that could have affected the field sobriety test results. The Law Division also found defendant guilty on the trial de novo.
Defendant contends that the Law Division erred by finding Sergeant McAllister's testimony to be credible, and by discounting defendant's medical conditions in the performance of the field sobriety tests as well as ...