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State v. Lu


May 26, 2010


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

Per curiam.


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:





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


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 beers. According to Gorman, defendant also said to both officers that he "shouldn't have been driving."

Gorman placed defendant under arrest and read him his Miranda*fn1 rights. While driving defendant to police headquarters, Gorman smelled alcohol in his patrol car. At headquarters, Gorman again read defendant his Miranda rights before questioning him. The officer completed a drinking and driving report, memorializing his conversation with and observations of defendant.*fn2 The report indicated that defendant's eyes were bloodshot and watery, his speech was slow, his demeanor was indifferent, he had consumed a total of seven drinks, i.e., Jack and Gingers and beers, between 10:00 p.m. on December 27, 2008 to 2:00 a.m. on December 28, 2008, and he had eaten pizza at approximately 3:00 a.m. on December 28, 2008.

Defendant was also administered the Alcotest at police headquarters. Due to deficiencies in the administration of the test, the State chose not to rely on it at trial.

Defense counsel's cross-examination of the officers centered on Gorman's administration and interpretation of the field sobriety tests; on the drinking and driving report, specifically that Gorman did not check boxes indicating that defendant had difficulty walking or standing, had an odor of alcoholic beverage on his breath, or that his face was flushed; and on a videotape of defendant at police headquarters, which did not show him swaying, staggering or having trouble with his balance.

Defendant testified that he had consumed approximately three or four beers and one or two Jack and Gingers, that he had a drink every half hour over a four-hour period, and that he ate two slices of pizza thereafter. Defendant denied he was speeding but admitted telling Gorman upon being stopped that he had five or six drinks, after which Gorman asked him to exit his vehicle. Defendant complied with Gorman's instructions for the field sobriety tests and "thought" he had passed them. However, he admitted that he swayed during the Romberg test, that Gorman had to twice remind him to keep his head tilted back, and that he missed numbers on the one-leg stand. Defendant also explained that he said he should not have been driving because he "got pulled over[,]" not because he had consumed alcohol and was impaired.

Upon conclusion of defendant's testimony, Judge Arnold H. Miniman viewed the videotape. The judge agreed that the videotape did not show defendant staggering or having problems with his balance at police headquarters. However, after assessing defendant's testimony, the judge concluded it lacked credibility. The judge found the officers' testimony credible.

Although the judge mentioned defendant's statement that he should not have been driving, the judge did not rely on it. After making factual findings, the judge found defendant guilty of DWI, concluding as follows:

Taking the totality of the circumstances, the fact the defendant was driving at a high rate of speed, that there was an odor of alcohol, that there was [an] admission of what I call substantial drinking, that there were observations of -- that would lead to a belief that a defendant had been drinking, observations of bloodshot eyes, odor of alcohol, the actions on the tests, I'm satisfied beyond a reasonable doubt that the defendant was under the influence of alcohol on December 28, 2008, to the point that if there were an Alcotest reading, it would have been at least an .08 if not higher. And I'm satisfied that he is guilty of violating the statute.

Because this was defendant's third DWI conviction, Judge Miniman suspended his driving and registration privileges for ten years, imposed a 180-day jail term and imposed the appropriate fine, penalties and surcharge.

On appeal to the Law Division, Judge Dangler stated that he "spent considerable time with the transcript of the appeal[,]" and that he "had a chance to carefully review all of the testimony[.]" The judge also reviewed the videotape and found that it was not "very helpful to this [c]court . . . in making the determination of whether [defendant] was under the influence." After reviewing the evidence and making factual findings, the judge discerned no reason to disturb Judge Miniman's credibility determinations, and found defendant guilty of DWI beyond a reasonable doubt. The judge never mentioned defendant's statement that he should not have been driving.

Judge Dangler modified defendant's sentence to a 180-day jail term with 90 days to be served in an in-patient alcohol rehabilitation program, and gave defendant credit for 54 days of time served. The judge also suspended defendant's driving and registration privileges for ten years, and imposed the appropriate fine, penalties and surcharge. This appeal followed


Defendant contends in Point I that the State failed to prove a violation of N.J.S.A. 39:4-50 beyond a reasonable doubt, and that both judges failed to make adequate factual findings and to consider exculpatory and contradictory evidence which created reasonable doubt. We disagree.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of a municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not a municipal court. Id. at 162. However, as with the Law Division, we are not in as good of a position as the municipal court judge to determine credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

To prove the offense of driving while intoxicated, the State must prove, in relevant part, that the defendant operated a motor vehicle while under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit producing drug. N.J.S.A. 39:4-50(a). "In a case involving intoxicating liquor, 'under the influence' means a condition which so affects the judgment or control of a motor vehicle operator 'as to make it improper for him to drive on the highway.'" State v. Cryan, 363 N.J. Super. 442, 455 (App. Div. 2003) (quoting Johnson, supra, 42 N.J. at 165).

To prove whether a defendant was "under the influence," the State need not show that he or she was sodden with alcohol. State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). Rather, the State must show "beyond a reasonable doubt that, at the time of his arrest, defendant suffered from a substantial deterioration or diminution of the mental faculties or physical capabilities[.]" State v. Bealor, 187 N.J. 574, 590 (2006) (internal citations omitted). A diminution of faculties and capabilities occurs when the motorist's drinking has altered his or her coordination and mental faculties so as to make it unsafe to drive. State v. DiCarlo, 67 N.J. 321, 330 (1975).

A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996); see also State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). A defendant's slurred speech and bloodshot eyes, together with an odor of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. See State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super. at 385.

Given our standard of review, we are satisfied that the record contains sufficient credible evidence from Judge Dangler could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's slurred speech, bloodshot, watery and glassy eyes, indifferent demeanor, as well as the smell of alcohol, defendant's admission that he consumed a substantial amount of alcohol, and his poor performance on the field sobriety tests, were sufficient reliable indicia that he operated a motor vehicle while under the influence of intoxicating liquor.

We are also satisfied that both judges made sufficient factual findings and considered exculpatory evidence, including the videotape, which they rejected. We emphasize that a judge sitting as the trier of fact is free to reject any evidence, "in whole or in part, that he or she does not find credible[.]" Cryan, supra, 363 N.J. Super. at 457. The credibility findings made in this case are unassailable.


Defendant contends in Point IV that Judge Miniman erroneously admitted into evidence two statements that violated his Miranda rights: (1) his statements about the amount of alcohol he consumed; and (2) his statement that he should not have been driving. This contention lacks merit.

In finding defendant guilty of DWI, neither Judge Miniman, nor Judge Dangler, relied on defendant's statement that he should not have been driving. In fact, Judge Dangler did not mention that statement at all. Accordingly, we focus on whether defendant's statements about the amount of drinks he had consumed violated his Miranda rights.

A DWI suspect is not entitled to Miranda warnings prior to administration of field sobriety tests. State v. Ebert, 377 N.J. Super. 1, 9 (App. Div. 2005). Miranda does not apply to the preliminary questions asked by a police officer, including whether the defendant had been drinking. Id. at 10. Defendant made his statement to Gorman that he had consumed six or seven beers and an unspecified number of Jack and Gingers prior to the administration of the field sobriety tests and in response to preliminary questioning. The statement, therefore, was admissible.

Although defendant had not received his Miranda rights before Welsh questioned him, defendant gave the officer the same response he had given Gorman about how much alcohol he had consumed. Therefore, any violation of defendant's Miranda rights constituted harmless error.


Defendant's contentions in Points II and III about the improper admission of the officers' "net opinion" that he was under the influence of intoxicating liquor, and about Judge Miniman's improper exclusion of cross-examination of Gorman about his failure to conduct the HGN test, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.

We review a trial court's evidentiary determinations under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj, supra, 195 N.J. at 20. An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citations omitted) (alternation in original).

Applying these standards, we discern no abuse of discretion in the admission of the officers' opinions that defendant was under the influence of intoxicating liquor. The officers gave these opinions as lay witnesses, not expert witnesses. "'New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication.'" State v. Amelio, 197 N.J. 207, 214 (2008) (quoting Bealor, supra, 187 N.J. at 585). The Court expressly noted that "'an ordinary citizen is qualified to advance an opinion in a court proceeding that a person was intoxicated because of consumption of alcohol [because] [t]he symptoms of that condition have become such common knowledge . . . .'" Id. at 214-15 (alternations in original) (quoting Bealor, supra, 187 N.J. at 587). Accordingly, a lay person, which includes a police officer, may provide an opinion to prove that a defendant was operating a motor vehicle while under the influence of intoxicating liquor.

Even if the officers were testifying as experts, their opinions were not net opinions. Each officer had direct contact with and made independent observations of defendant, and their opinions were supported by credible factual evidence. State v. Townsend, 186 N.J. 473, 494 (2006); N.J.R.E. 703.

Finally, because the results of an HGN test are inadmissible at trial, State v. Doriguzzi, 334 N.J. Super. 530, 539-40 (App. Div. 2000), we discern no abuse of discretion in the exclusion of cross-examination on Gorman's failure to conduct this test.


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