On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 22-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Axelrad and Espinosa.
Defendant appeals from his convictions for driving while intoxicated, N.J.S.A. 39:4-50 (DWI), and resisting arrest, N.J.S.A. 2C:29-2(a)(2), following a trial de novo in the Law Division. We affirm.
On November 12, 2006, Officer David Cope of the Galloway Township Police Department was dispatched to investigate a onecar accident. Upon arrival at the scene, Officer Cope observed defendant outside his vehicle, swaying. When Officer Cope asked him for his driver's license, registration and insurance card, defendant got into his vehicle and attempted to back up. However, the vehicle was stuck on a fence and would not move. Officer Cope took defendant by the arm and instructed him to get out of his vehicle. Defendant repeatedly stated that he wanted to get his driver's license but eventually got out of the car. Officer Cope asked him what happened. Defendant continued to repeat that he wanted to get his driver's license and, according to Officer Cope, "really couldn't give [him] an answer." Officer Cope described his demeanor as "high strung, loud, slightly belligerent, [and] not very cooperative" and was able to detect an odor of alcoholic beverage emanating from defendant's mouth. Defendant was able to stand but was swaying back and forth.
Another police officer, Justin Butler, arrived on the scene. Officer Butler also detected the odor of alcohol on defendant's breath and observed that defendant had slurred speech and impaired balance. In response to Officer Butler's question as to how he had arrived at the scene, defendant stated that he had driven there. When Officer Butler attempted to administer field sobriety tests, defendant became uncooperative and continued to repeat that he wanted to get his driver's license. Because he would not pay attention to Officer Butler's instructions, defendant was advised that the officers were placing him under arrest.
Defendant tried to break free as the officers attempted to handcuff him. It took two officers to bring his arms together behind his back to handcuff him. Once inside the patrol vehicle, defendant attempted to get out by kicking the side window. The officers had to put him back into the vehicle and seatbelt him to secure him.
Defendant initially refused medical attention but changed his mind after he was told that he was being taken to the police station to administer an Alcotest breath test. He was taken to the Atlantic City Regional Medical Center by ambulance, where his blood was drawn to test for blood-alcohol content (BAC) by an emergency room nurse. The blood samples were analyzed by a forensic scientist employed by the New Jersey State Police who was certified in the analysis of blood alcohol. Her analysis revealed a BAC of .181.
Defendant was charged with resisting arrest, N.J.S.A. 2C:29-2(a)(2); driving while intoxicated, N.J.S.A. 39:4-50, reckless driving, N.J.S.A. 39:4-96; failure to maintain a lane, N.J.S.A. 39:4-88(b); and failure to wear a seatbelt, N.J.S.A. 39:3-76.2f. Defendant's motion to suppress the results of the blood test was denied by the municipal court.
At defendant's trial in municipal court, defendant testified to a dramatically different version of the facts than that presented by the State. He denied trying to kick out the window of the police vehicle. He did not recall being asked to perform field sobriety tests or being told that he was going to be taken to the police station. He claimed that he had requested medical attention. He described the taking of his blood sample as a forcible event; that he was "overwhelmed" by the police at the hospital; that he was handcuffed to the bed and that he was "stabbed twice" in his vein by the nurse. He stated that he asked for an attorney a few times at the hospital. Defendant stated that the officers were mistaken in perceiving the odor of alcohol on his breath; that the odor resulted from a combination of mouthwash and periodontal disease. He absolutely denied drinking any alcoholic beverages on the night he was arrested.
The municipal court gave detailed findings of fact and credibility determinations. In denying the motion to suppress, the court stated the following about the defendant's credibility:
At this point I'll just address the testimony that we just heard, and I want to make this clear. I did not find anything that Mr. Metz said to be credible. I found him not to be truthful. Mr. Metz did not answer the questions as they were presented, he appeared evaseful - evasive. He struggled, for example, he also said he struggled against the officers due to a need for medical treatment which in my mind makes absolutely no sense. His testimony appeared to be self-serving, his testimony was argumentative. He only remembers - he says at one point I only remember being held down and that's all I remember, and that kind of memory, Ms. Swift,*fn1 I understand we have to argue what we're left with, however we need to leave here with some credibility ourselves. To say that his testimony indicating the nurse was wrong, that he didn't say he drank two beers, that the nurse was wrong, that there wasn't a bruise when he walked in and they filled the chart out wrong, this alleges a virtual conspiracy between the nurses, the police officers, the hospital, the security staff which so stretches one's imagination that it borderlines - borderlines in my eyes, quite honestly, as perjury. He indicated that he was afraid of needles from the time he used to get them when he got polio shots and that two family members died, that he had mouthwash in his car because he has borderline periodontal issues, and it may be possible from the mouthwash that they smelled the alcohol. I not only reject it, I believe it's laughable. I believe it is a shame that we are at a point in time where people are willing to say such things, in my opinion, simply to avoid prosecution.
In order to accept his testimony, he said he was overwhelmed by the police and that the nurse poked him in the arm several times, I have to reject her testimony. A woman who is a 26-year certified nurse, the head of the E.R. on weekends, and I'm supposed to reject her testimony and accept someone who doesn't really remember what happened except the things that benefit his testimony. I hope I have made it as clear as possible on the record that ...