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State v. Marzano

June 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TINA MARZANO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 59-2008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2010

Before Judges Payne and Fasciale.

Defendant Tina Marzano appeals from her conviction in the Law Division, following the trial de novo of her municipal court convictions of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; and two counts of DWI with a minor in the car, N.J.S.A. 39:4-50.5.

Judge Pullen imposed the following sentence for the DWI conviction: $1000 fine, 180 days in the county jail, ten year driver's license suspension, $50 VCCB, $100 DDEF, $75 Safe Neighborhood Services Fund, and a $100 surcharge. For the refusal to submit to a breathalyzer conviction, the judge imposed a $100 fine, 180 days in the county jail concurrent to the DWI conviction, ten years driver's license suspension consecutive to the DWI conviction, $100 DDEF and a requirement to attend IDRC. As to the two convictions of DWI with a minor in the car, Judge Pullen dismissed one count and sentenced defendant on the other to a $206 fine, a $50 VCCB, $75 Safe Neighborhood Services Fund and $33 court costs.

On appeal, we address whether Judge Pullen's findings of fact are supported by substantial credible evidence in the record, and whether that judge properly identified and applied the "community caretaker doctrine." Having concluded that the facts found by the judge are supported by substantial credible evidence in the record and she applied the correct legal principles, we affirm.

On February 13, 2008, defendant was parked in the middle of a closed bank parking lot at 3:00 a.m. Defendant was not parked or near the drive-through ATM. The lights on defendant's car were off, and the engine was on. There is no evidence that any other cars were in the lot.

The police were not sure if defendant was lost or needed help. As a result, a police car stopped about five or six feet from defendant's car, the police officer rolled down his passenger window and he asked defendant if she was lost or needed help.

In responding to the officer that she was a little lost, the officer noticed that defendant's speech was slurred, and he smelled alcohol. The officer got out to investigate further, noticed defendant's minor daughter in the car and observed the daughter's minor boyfriend emerging from an area at the side of the bank building.

Defendant moved slowly and with difficulty when producing her credentials. She admitted that she had a few drinks. The officer asked defendant to do several field sobriety tests, and in the officer's opinion, she failed. Defendant needed to hold onto the car in order to stand up readily. She recited the alphabet but she responded deliberately and slowly. She failed the finger dexterity test. Defendant did not perform other tests because she claimed she had brittle bones.

Defendant explained that she lived in another county, and they were looking for a place to eat. Defendant had driven from Monmouth County to Woodbridge. Based on the observations of the officer and the totality of the circumstances, the officer concluded defendant had been drinking and arrested her. She thereafter refused the breathalyzer.

Judge Pullen accepted the municipal court judge's credibility finding that the officer made a better witness than the defense witnesses. Judge Pullen found that defendant operated the car while under the influence and refused to take the breathalyzer test.

Defendant makes the following arguments on appeal: Point I ALL EVIDENCE PROFFERED BY THE STATE SHOULD BE SUPPRESSED, AS THE COMMUNITY CARETAKER EXCEPTION TO REASONABLE ...


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