On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0007-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Payne and Waugh.
Defendant Luke J. Uzupis appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. We affirm.
A police officer spotted defendant's car in a closed gas station at midnight. The headlights were on and the engine was running. Defendant was lying back in the driver's seat. He did not respond when the officer knocked on the window. The officer opened the door and shook him, which woke him up. The officer detected an odor of alcohol. Defendant fumbled in getting his documents and in getting out of the vehicle. He admitted to drinking and did poorly on the field sobriety tests. He was taken to headquarters. His blood alcohol level was 0.10 percent.
Defendant was convicted of violating N.J.S.A. 39:4-50 in municipal court. He appealed to the Law Division, and was convicted on the trial de novo. This appeal followed.
Having reviewed defendant's arguments on appeal in light of the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth in Judge Robert Neustadter's comprehensive written decision. We add only the following.
The judge went through the transcripts very carefully. The only viable issue in our view was whether the police officer had waited the twenty minutes required by State v. Chun, 194 N.J. 54, 79, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), before administering the Alcotest and whether he had defendant under continuous observation during that time.
Both the municipal and the Law Division judges found that the Chun requirements had been met. The officer testified that he used his watch to time the twenty minutes. Although he acknowledged that his watch, the office clock and the Alcotest machine were not synchronized and showed different times, the officer based his timing solely on his watch. The officer also testified that he sat near defendant while he put information into the computer and had him under observation. Both judges credited the testimony of the police officer.
Defendant offered expert testimony that the field sobriety tests used were not scientifically reliable, but the State did not offer them as scientifically reliable tests. They were the basis for the officer's observations of intoxication. Proof of a defendant's physical condition of intoxication typically consists of proof through the testimony of a police officer with respect to his or her observations of the defendant. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give lay opinion testimony as to whether a defendant was under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication."); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005). The field sobriety tests certainly provided an acceptable basis for the arrest and subsequent administration of the Alcotest.
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