On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant Delia Pape-White was charged with driving while intoxicated, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. The municipal court admitted evidence of a breath test, administered to defendant using an Alcotest 7110 device, and found her guilty of a per se DWI offense. The municipal court judge then made "a finding of not guilty" of reckless driving and merged that charge with the DWI conviction. Defendant's driver's license was suspended for seven months. She was required to spend twelve hours at the Intoxicated Driver Resource Center (IDRC) and assessed applicable fines and costs. Defendant appealed her DWI conviction. In the Law Division's de novo review, defendant was found guilty of both DWI, based solely on the officer's observations, not the Alcotest results, and reckless driving. On the DWI conviction, the court sentenced defendant as a first-time offender, suspending her driving privileges for three months, ordering a mandatory screening at the Intoxicated Drivers Resource Center, and imposing statutory fines and penalties. No additional penalties were imposed on the reckless driving conviction.
Defendant presents these arguments for review on appeal:
THIS COURT SHOULD DISMISS THE STATE'S CROSS-APPEAL BECAUSE WHAT THE STATE SEEKS (A REVIEW OF WHAT WAS IN EFFECT AN ACQUITTAL) OFFENDS CONSTITUTIONAL PRINCIPLES OF DOUBLE JEOPARDY.
THE STATE DID NOT PROVE THAT PAPE-WHITE WAS UNDER THE INFLUENCE; THE RESULT BELOW WAS NOT REASONABLY REACHED, PARTICULARLY BECAUSE THE SUPERIOR COURT, IN DISREGARDING THE ALCOTEST EVIDENCE AS UNRELIABLE, NONETHELESS FOUND THAT THE DEFENDANT'S BLOOD ALCOHOL CONCENTRATION WAS 0.08%.
THERE WAS NO EVIDENCE BELOW TO ESTABLISH THE TIME THAT PAPE-WHITE DROVE THE CAR. ACCORDINGLY, BECAUSE OF THE ABSENCE OF THIS OFFENSE-ELEMENT, THE RESULT BELOW WAS NOT REASONABLY REACHED.
THE MUNICIPAL COURT FOUND PAPE-WHITE NOT GUILTY OF RECKLESS DRIVING. ACCORDINGLY, THEIR DESIGNATION OF THAT CHARGE AS HAVING BEEN "MERGED" INTO THE DWI CONVICTION IS ERRONEOUS.
On cross-appeal, the State argues the results of the Alcotest were wrongfully excluded. The State maintains the Law Division sentence, a three month license suspension, must be vacated, and the municipal court sentence, a seven month suspension, reinstated.
Following our review of the arguments in light of the record and the applicable law, we affirm the Law Division's conviction for DWI and reverse the conviction for reckless driving. Based on these determinations, we dismiss the State's cross-appeal.
The essential facts are taken from the municipal court record and are undisputed. While patrolling Route 10 on August 23, 2007 at approximately 3 a.m., Randolph Township Police Patrolman Frank Mygas spotted a disabled minivan parked "on an angle" on the shoulder. He pulled his patrol car behind the vehicle and noticed it had a large hole in its tire and was unoccupied. Mygas then saw defendant walking towards the vehicle. He testified defendant was "swaying" as she walked, and "appeared to have a little bit of difficulty . . . . It appeared to me that she had been under the influence of either intoxicating liquor or drugs[.]"
Defendant admitted the vehicle was hers. She explained she had been driving, became lost, then struck something in the roadway, causing a flat tire. When asked if she had anything to drink, defendant admitted she had a glass of wine. During his conversation with defendant, Mygas detected "an odor of alcoholic beverage on [defendant's] breath," saw her eyes were bloodshot, and noticed she was "slurring her words." Further, defendant moved her hands slowly while retrieving her paperwork.
Mygas administered field sobriety tests. He first requested defendant to recite the alphabet, which she completed without error. Next, when counting backwards from twenty-seven to nine, she performed adequately but passed number nine and finally stopped when she reached number three. Sergeant Gary Moore ...