On Appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Defendant Lloyd Furbert appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. We affirm the conviction, but remand for re-sentencing.
On October 20, 2006, at approximately 1:53 p.m., Patrolman Ricky Scott Lindner responded to the scene of an accident at the intersection of Route 46 and Naughtright Road in the Township of Mount Olive. Upon arrival, Lindner observed a rental box truck and a Toyota Camry pulled off to the side of the road. The Camry had sustained some front-end damage and the box truck had some minor damage to the rear bumper. The weather was rainy and windy.
Lindner spoke with the driver of the Camry, later identified as Furbert, who stated he was not injured. Furbert also told Lindner that the accident was his fault. As Lindner asked Furbert for his driver's credentials, he noticed a heavy odor of alcohol emanating from the vehicle. Furbert had trouble removing his wallet from his back pocket and fumbled with his credentials. Lindner also observed that Furbert's eyes were bloodshot and that his speech was slurred.
Lindner asked Furbert to exit the vehicle in order to perform field sobriety tests. As he exited the vehicle, Furbert lost his balance and had to grab hold of the car to steady himself. As Lindner directed Furbert to a location where the tests could be performed, he observed that Furbert was swaying back and forth as he walked.
Lindner then asked Furbert to perform the walk-and-turn field sobriety test, which required him to walk heel to toe for a certain distance, turn, and walk back to the starting location. Lindner demonstrated the procedure for Furbert. As soon as Furbert started to perform the test, he lost his balance and separated his feet. He did not walk heel to toe or take the correct number of steps. Furbert then said to Lindner: "I'm drunk." Lindner discontinued the test and placed Furbert under arrest.
According to Lindner, while transporting Furbert to the police station, his vehicle became permeated by the odor of alcohol. Once they arrived at the station, Furbert placed a mint in his mouth. He was ordered to spit out the mint and did so. Lindner then waited twenty-four minutes before administering the Alcotest.
During the waiting period, Lindner read the Implied Consent Form to Furbert, who agreed to provide breath samples. The first successful sample was taken at 2:45 p.m. and the second at 2:48 p.m. The tests resulted in an average of 0.13 percent blood alcohol content (BAC). Furbert was then given his Miranda*fn1 rights, which he agreed to waive. He admitted to consuming two vodka drinks earlier that day, one at 10:45 a.m. and another at approximately 1:45 p.m.
Furbert was charged with driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50; careless driving, contrary to N.J.S.A. 39:4-97; and reckless driving, contrary to N.J.S.A. 39:4-96. He appeared in the Mount Olive Municipal Court on November 27, 2006, for a preliminary hearing. The municipal trial was held on December 11, 2006, and continued on February 11, 2008. Defense counsel moved to suppress evidence, which motion was denied.
The municipal court judge found Furbert guilty of driving while intoxicated under both the "observational" and "per se" standards. He found him not guilty of careless and reckless driving. He imposed a fine of $300, $33 court costs, $200 surcharge, $50 VCCB, $75 Safe Neighborhood, twelve hours IDRC, and suspended Furbert's driving privileges for seven months. The municipal court judge stayed the sentence pending appeal.
On August 15, 2008, the Law Division judge held a trial de novo. He found Furbert guilty of violating N.J.S.A. 39:4-50. He entered an order "affirming" the judgment ...