On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-052.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Defendant Marylou Panza appeals from a Law Division judgment, following a trial de novo, affirming her municipal court convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to an Alcotest, N.J.S.A. 39:4-50.2. We affirm.
According to the State's proofs adduced at the suppression hearing and later incorporated into the trial, during the evening of July 21, 2007, Detective Sergeant Joseph Orlando, an eleven-year veteran of the Florham Park Borough Police Department, was working crowd control and pedestrian crosswalks at the Borough's "Movie Night," an event where people gather to watch a movie outdoors on a large screen. At about 8:00 p.m., Detective Orlando observed defendant crossing from Briarwood Road to Ridgedale Avenue, walking "slightly off balance," unsteadily, "shuffling and swaying."
Orlando next encountered defendant around 9:45 p.m., when he responded to a report of a "disturbance" at the cotton candy vendor near the gazebo on Borough Drive. Although Orlando did not observe any disturbance, a number of people standing in line waiting to purchase cotton candy and popcorn pointed to defendant. He then conversed with defendant, whom he recognized from earlier in the evening, and detected an odor of alcohol emanating from her. Defendant's eyes also appeared bloodshot and glassy.
About forty-five minutes later, at the end of the movie, Orlando saw defendant a third time, this time walking down from the Borough yard towards Briarwood Road with a small child. Based on his earlier observations, Orlando suspected defendant might have been under the influence, and, out of concern that defendant would drive with the child, called a patrol unit to the location. Orlando himself could not stop and question defendant because there were hundreds of people in the crosswalks and traffic was coming out of Borough Drive.
Sergeant Matthew Gatzke, a fourteen-year veteran of the police department, responded to the scene. He observed defendant, who matched the description given in the radio transmission, which also advised that the female, accompanied by a small child, may be intoxicated. Defendant then entered her Volvo, turned on her directional indicator, and proceeded on Smithfield Avenue, towards Briarwood Road, with Gatzke following close behind. When defendant began to turn, Gatzke activated his overhead lights and stopped defendant's vehicle on Briarwood Road, before Ridgedale Avenue. Defendant's child was in the rear passenger side of the vehicle.
When Gatzke asked for her credentials, defendant provided her registration, but had difficulty finding her license, which she eventually produced. Gatzke observed that defendant's eyes were glassy and bloodshot. She denied having consumed any alcohol. While she remained seated, Gatzke asked defendant to perform the finger dexterity test and count "5, 4, 3, 2, 1" and "1, 2, 3, 4, 5," twice, which she passed. Detective Orlando then returned to the scene to confirm defendant was the suspect he had called into dispatch.
After Orlando left the area, Gatzke asked defendant to exit the vehicle and perform field sobriety tests on the side of the road, between Gatzke's and defendant's vehicles. The area was clear, flat, and paved, and in Gatzke's opinion, safe to conduct testing. He allowed defendant to take her high heels off during the tests. Another police officer was posted near the vehicle to watch defendant's child, who was obviously upset and concerned for her mother.
Gatzke administered the "one-legged stand" and "walk-and-turn" tests, which were videotaped and for which defendant needed several explanations before she attempted to comply with the instructions. According to Gatzke, defendant failed both of these tests. Throughout the field sobriety testing, Gatzke detected the odor of alcohol emanating from defendant and found her interrupting him and rambling about other subjects that did not pertain to the questions he was asking. While obviously concerned about her daughter, defendant was reassured by Gatzke that another officer was watching the child.
Based on all his observations and the information imparted by Detective Orlando, Sergeant Gatzke arrested defendant and transported her to police headquarters, where she was re-read her Miranda*fn1 rights and read the standard DMV statement, advising why she was arrested and the need to submit breath samples for testing of alcohol content in the blood. Gatzke also explained to defendant that he was required to read all eleven paragraphs of the "standard statement." When Gatzke read Paragraph Eleven and asked, "Now, will you submit samples of your breath?" Defendant replied, "No, I do not want to do that." Gatzke then read the additional statement and asked, "Once again, I ask you will you submit to giving samples of [your] breath?" Defendant responded, "No, not right now." Defendant also indicated that she understood the form.
Gatzke waited twenty minutes for the Alcotest machine. After completing documentation and entering information into the machine, Gatzke gave defendant a third opportunity to blow into the machine, which defendant once again declined. Gatzke then pressed the refusal button on the Alcotest machine. Defendant agreed to answer the Drinking and Driving Questionnaire, wherein she indicated she had consumed "wine with dinner."
Defendant offered a different version at trial. Earlier that evening, she had gone to dinner with her husband and daughter, where she consumed a glass of wine. She later drove to "Movie Night" with her daughter, after returning her husband home. Upon arrival, defendant dropped off her daughter with a friend, Deirdre Murphy, and her friend's daughter, while she looked for parking up the street. Defendant met up with the trio and all four sat on lounge chairs and a blanket to enjoy the movie.
Defendant left the area twice, once to get the children popcorn at the concession, and forty-minutes into the movie to get cotton candy. While in line for cotton candy, she said she joked with the vendor, asking him to hurry up and "use both hands." When Detective Orlando approached her waiting in line, defendant conversed with him about his uniform, telling him the Chatham Police Department resuscitated her husband and saved his life.
The movie ended at 10:15 p.m., at which time defendant and her daughter returned to her vehicle, crossing the street at Ridgedale Avenue and Briarwood Road and saying "good night" to Detective Orlando as she passed him. When she arrived at her vehicle, defendant buckled her daughter in a booster seat and then pulled out of her spot. At this time, she noticed a patrol car behind her, but thought the officer wanted to pull around her. Instead, Gatzke stopped defendant's vehicle and asked for her credentials. At the time, defendant's daughter was upset and frightened and defendant herself was scared. As defendant was ordered out of the car, her daughter started crying. Throughout the ...