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State v. Kawashima

February 11, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YOSHINORI KAWASHIMA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 35-08-R-T13.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2010

Before Judges Wefing, Grall and Messano.

Following a trial before the Hillsborough Municipal Court and trial de novo in the Law Division, defendant Yoshinori Kawashima appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50.*fn1 Defendant, a first-offender, was sentenced to attend the Intoxicated Driver's Resource Center for twelve hours, and his driver's license was suspended for nine months. In addition, he was required to pay $764: a $100 DWI assessment, a $100 payment to the DAEF fund, a $400 fine, a $50 VCCB assessment, a $75 SNSF penalty, $33 for court costs and $6 for administrative fees. Substantially for the reasons stated in a written opinion issued by Judge Reed following defendant's trial de novo in the Law Division, we affirm.

These facts were established at trial. On February 23, 2007, Officer Kearney of the Hillsborough Police Department was dispatched in response to a report of an accident. Defendant was driving an SUV at the time of the accident, and Mrs. Brown was driving a car. According to Mrs. Brown, defendant drove from the cross street into the intersection as she was turning onto the cross street. His car hit hers.

When Officer Kearney spoke to defendant, he detected the odor of alcohol in the defendant's SUV and noticed that defendant's eyes were red and watery and that his speech seemed slow. He directed defendant to remove a piece of gum that he was chewing from his mouth. In response to the officer's questions, defendant said he had two beers with his dinner and estimated that the accident occurred about forty minutes after he finished his last drink. At trial, defendant could not recall how many beers he had consumed during the hours he spent at the restaurant.

Officer Kearney asked defendant to perform sobriety tests. The testing process commenced at 11:33 p.m.*fn2 The officer gave defendant instructions and demonstrated how the tests were to be performed. Although defendant initially answered "yes" when asked whether he had any physical condition that would interfere with his performance, when the officer asked him to identify the problem, he said he did not have any relevant condition.

As defendant performed the heel-to-toe test, he touched the heel of one foot to the toe of the other on two out of nine times during his first effort. On a second attempt, after taking a few steps, defendant swayed and almost fell. When he tried to perform another test, one requiring him to stand on one leg with his arms at his side, he again "swayed." Officer Kearney stopped that test out of concern that defendant would be injured.

Officer Kearney also conducted a horizontal gaze nystagmus test (HGN). He detected a "distinct jerking motion" in defendant's eyes as defendant tried to follow the officer's finger and a "bouncing" of his eyes as he followed a command to look at the corners of his eyes.

Based on the odor of alcohol and the results of the sobriety tests, Officer Kearney placed defendant under arrest and handcuffed him. The time was 11:41 p.m. Defendant was then seated in the back seat of the police car, and at 11:43 p.m. Officer Kearney started on the trip to the police station. During the ride, Officer Kearney detected the odor of alcohol in the police car.

They arrived at the station at 11:58 p.m. Defendant, still handcuffed, was taken inside and given a seat on a bench. Officer Kearney removed the handcuffs and immediately placed defendant in a set of handcuffs that was attached by a chain running from the cuffs to the floor beneath the bench.

Officer Kearney gave defendant the requisite warnings about his constitutional rights. At 12:25 a.m., more than twenty minutes after they arrived at the police station, the officer started to complete the forms preliminary to administration of the Alcotest.

Officer Kearney is a certified Alcotest operator, and he administered the test. He was in defendant's presence continuously from the time he got into the car to drive the handcuffed defendant to headquarters until the Alcotest was administered ...


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