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State v. Lu

May 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHIHWEI LU, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-0116.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 4, 2010

Before Judges Skillman and Simonelli.

After a trial de novo in the Law Division, defendant Chihwei Lu appeals from his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). On appeal, defendant presents the following arguments:

POINT I - THE STATE FAILED TO PROVE A VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT.

POINT II - THE TESTIMONY OF BOTH [OFFICERS] REGARDING THE ALLEGED INTOXICATION WAS PURE NET OPINION WITHOUT ANY SPECIFIC REFERENCE TO FACTS IN THE RECORD.

POINT III - THE DEFENDANT'S RIGHT TO FULLY AND COMPLETELY CONFRONT THE WITNESS AGAINST HIM WAS UNLAWFULLY ABRIDGED BY THE MUNICIPAL COURT.

POINT IV - THE CONVICTION WAS BASED UPON THE STATEMENTS OBTAINED FROM THE [DEFENDANT] VIOLATED THE MIRANDA RULE.

Based on our review of the record and applicable law in light of the contentions advanced by defendant, we affirm.

I.

According to Officer Thomas Gorman of the Denville Police Department, at approximately 4:15 a.m. on December 28, 2008, he stopped defendant for speeding. Upon approaching defendant's vehicle, Gorman saw that defendant "appeared very lethargic, his eyes were bloodshot, looked [glassy]." After detecting an odor of alcohol emanating from defendant's vehicle, Gorman asked defendant how much he had to drink. Defendant replied that he had consumed "Jack and Gingers," meaning Jack Daniels liquor and ginger ale, and "6 or 7 beers." Based on the foregoing, Gorman decided to administer field sobriety tests and asked defendant to exit his vehicle.

Gorman first administered the Romberg test, a timing and balance test that required defendant to stand at attention with his arms to his side and tilt his head back for thirty seconds. Officer Scott Welsh arrived at the scene after the test began, and saw that defendant's eyes were glassy, his speech was slurred, and he swayed. During the test, defendant noticeably swayed front to back approximately two inches, failed to follow Gorman's instructions, and failed to properly perform the test. Defendant also failed to follow the officer's instructions and to properly perform the one-leg stand test and the walk and turn test.

Gorman concluded that defendant was under the influence of alcohol and should not be operating a vehicle, and Welsh concluded that defendant was intoxicated. Welsh then administered the horizontal gaze nystagmus (HGN) test. He asked defendant why he was stopped and how much he had to drink, to which defendant replied that he was stopped for speeding and that he had consumed Jack and Gingers and about seven ...


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