January 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARY S. METZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 there's nothing that came out of this witness's mouth that I believe other than perhaps his name and his address . . . .
The municipal court found defendant guilty of DWI and resisting arrest and acquitted defendant of reckless driving, failure to maintain a lane and failure to wear a seatbelt. On the DWI charge, which was defendant's third DWI conviction, the municipal court imposed a sentence of 180 days incarceration, a ten-year license suspension and ten-year registration, as well as $1364 in fines and assessments. The municipal court sentenced defendant to pay $414 in fines and assessments on the fourth-degree charge of resisting arrest.
Defendant appealed his convictions to the Law Division, which conducted a trial de novo on the record pursuant to Rule 3:23-8. The Law Division carefully reviewed the record, accepted the municipal court's credibility determinations and set forth in detail the evidence to support its verdict, finding defendant guilty of DWI and resisting arrest. The court imposed the same sentences as had been imposed by the municipal court.
In this appeal, defendant argues the following issues:
DUE PROCESS - THE ABILITY TO OF [SIC] TAKEN A BREATHALYZER TEST.
CIVIL RIGHTS - THE RIGHT TO SPEAK TO AN ATTORNEY.
CONSTITUTIONAL RIGHTS - HAD WARRANTLESS SEARCH SEIZURE A FORCIBLE BLOOD DRAW VIOLATING STATE SUPREME COURT DECISION (STATE V. RAVOTTO).
INEPT DEFENSE PUBLIC DEFENDERS NOT DOING A GOOD JOB.
After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
The first three points raised by defendant relate to the blood sample that was taken from him. His arguments are not articulated to any degree but appear to challenge the blood sample evidence on the grounds that he had a right to take a breathalyzer test rather than have his blood drawn; that he was denied the right to counsel before his blood was drawn; and that the blood was not drawn in a medically reasonable manner. The first two of these points are raised for the first time on appeal. Ordinarily, such issues are considered only under limited circumstances, State v. Arthur, 184 N.J. 307, 327 (2005); State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006), which are not present here.
In the first point, defendant contends that his rights as articulated in State v. Ravotto, 169 N.J. 227 (2001) were violated. His point heading suggests that he should have been given the option of taking a breathalyzer test as opposed to having a blood sample taken. However, there is nothing in Ravotto that suggests that a defendant has a "right" to have a breathalyzer test as opposed to having blood drawn. To the contrary, the Court stated that "the police are not obligated to favor one test over the other . . . ." Ravotto, supra, 169 N.J. at 245 (emphasis added).
The second point heading alleges a violation of civil rights that apparently rests upon a premise that he had the right to speak to an attorney prior to the taking of a blood sample, and could have withheld his consent to this procedure. This argument is entirely without merit. See Pennsylvania v. Muniz, 496 U.S. 582, 588-589, 110 S.Ct. 2638, 2643-44 110 L.Ed. 2d 528, 543-544 (1990); Schmerber v. Cal., 384 U.S. 757, 765-766, 86 S.Ct. 1826, 1832-33, 16 L.Ed. 2d 908, 916-917 (1966); Ravotto, supra, 169 N.J. at 238-39.
The third point raised by defendant challenges the denial of his motion to suppress the blood sample evidence on the grounds that it was obtained forcibly. He asks this court to reject the findings of fact made by the Law Division and accept his contradictory version of events. This would also require us to reject the credibility finding made by the municipal court. This finding was explicitly adopted by the Law Division judge, who stated, "I think the municipal court judge . . . got it exactly right when he said 'I don't find anything defendant said to be credible.' . . . And quite frankly, as I read the transcript, I'm forced to come to the same conclusion."
Our review of defendant's convictions is restricted to a determination "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 472 (1999) (citations omitted). The opportunity of the municipal court to assess the credibility of witnesses is acknowledged in the deference paid to its credibility determinations. See State v. Kashi, 180 N.J. 45, 48 (2004); State v. Johnson, 42 N.J. 146, 157 (1964). Here, the evidence found to be credible by the Law Division was the testimony of three witnesses present at the time the blood was drawn, including the emergency room nurse herself. Each of them described a procedure that was medically reasonable in which no force was used. There was, then, sufficient credible evidence in the record to support the court's conclusion that the blood sample was not obtained in violation of defendant's constitutional rights. See Ravotto, supra, 169 N.J. at 236, 241-244.
Finally, we conclude that defendant's claim that his attorneys were inept lacks any merit as it rests upon bare allegations that are plainly insufficient to meet the requirements of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 52 (1987).