On Appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Defendant Raffaello Ferrucci appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. We affirm.
On August 10, 2006, at approximately 10:52 p.m., Officer David Turner of the Mount Olive Township Police Department was driving an unmarked police vehicle in the vicinity of the Budd Lake Firehouse. While driving through the parking lot, Turner noticed a white Mercedes traveling westbound on Route 46. The vehicle was in the left lane, but going noticeably below the posted speed limit of fifty miles per hour. Turner proceeded to follow the vehicle.
After leaving the parking lot and driving onto Route 46, Turner observed three cars pull into the right lane to pass the white Mercedes. As Turner moved behind it, the white Mercedes rapidly accelerated, reaching speeds in excess of sixty miles per hour. Turner activated his lights and effectuated a stop of the vehicle at a part of Route 46 where the shoulder is wide and the ground is relatively flat.
Turner approached the vehicle and asked the driver, who was eventually identified as Ferrucci, to produce his driving credentials. Ferrucci was unable to produce any of those documents, stating that he did not know where they were. Turner observed Ferrucci's face to be a little flushed. He detected a strong odor of alcohol emanating from inside the Mercedes. When questioned as to whether he had been drinking, Ferrucci responded that he had consumed a few beers.
Officer Joseph Abrusci arrived at the scene as backup for Turner. When Abrusci approached Ferrucci's vehicle, he observed alcoholic beverage containers in the rear of the vehicle and also detected a strong odor of alcohol. As Ferrucci spoke with Turner, Abrusci noted that his speech was slow and slurred.
Turner, however, had not noticed anything unusual about Ferrucci's speech.
Ferrucci was asked to exit the vehicle and perform field sobriety tests. Turner observed that Ferrucci appeared to have forgotten where the ignition key was located in the vehicle. He hesitated before turning off the headlights and shutting down the car. While exiting the vehicle, Ferrucci appeared to be swaying and unsteady. Abrusci made similar observations.
Before administering the tests, Turner asked Ferrucci if he had any medical problems that might affect his performance of the field sobriety tests. Ferrucci replied in the negative.
The first test was the horizontal gaze nystagmus (HGN), which Ferrucci performed correctly, although Abrusci observed that he was swaying during the process.*fn1 Turner explained and demonstrated the second test, the walk-and-turn test. Ferrucci was unable to maintain the starting position during the instructions. He also raised his arms to maintain his balance, missed a heel-to-toe step, went off the line three times, stopped twice to steady himself, and turned incorrectly.
Ferrucci was then asked to perform the one-leg-stand test, which was also explained and demonstrated for him. He attempted to stand with his leg raised for a period of thirty seconds, during which he counted to only fifteen. He lowered his foot at the count of thirteen, and swayed and hopped throughout the test. Abrusci also noted Ferrucci's balance problems during both tests.
Based on his observations before and during the stop, and while administering the test, Turner placed Ferrucci under arrest for driving while under the influence in violation of N.J.S.A. 39:4-50(a). Turner detected the odor of alcohol in his patrol vehicle once he put Ferrucci inside of it. At the police station, Ferrucci told Turner that he had had a foot injury that sometimes bothered him, but stated that it was "not hurting" at that time.
At 11:46 p.m., Ferrucci consented to provide breath samples. The samples provided by Ferrucci resulted in an Alcotest reading of 0.06 percent blood alcohol content, which is below the legal limit of 0.08 percent. Consequently, there was no "per se" violation of N.J.S.A. 39:4-50(a).
After that test was administered, Ferrucci disclosed to Turner that he had been prescribed an antidepressant drug, Wellbutrin, in the amount of 300 milligrams per day. Ferrucci reported that he had taken his most recent dose at noon that day, approximately twelve hours earlier. Ferrucci was advised of his Miranda*fn2 rights, signed a Miranda form, and invoked ...