On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ashrafi.
Defendant Nderim Ameti appeals from a judgment of conviction in the Law Division for driving while intoxicated (DWI) and possession of marijuana. The State cross-appeals from the ruling of the Law Division on trial de novo suppressing Alcotest results. We grant the State's cross-appeal and affirm defendant's conviction on alternative grounds.
Defendant was arrested by Lincoln Park police and charged with DWI, N.J.S.A. 39:4-50, possession of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. He brought motions to suppress the evidence, which the municipal court denied after holding an evidentiary hearing. Following trial in the municipal court, the court found defendant guilty of DWI and of possession of marijuana but not guilty of possession of drug paraphernalia.
On the DWI charge, this being at least defendant's second conviction, he was sentenced to a fine of $500, a two-year loss of driver's license and registration, forty-eight hours at the Intoxicated Driver Resource Center, thirty days of community service, and appropriate fees and costs. For possession of marijuana, defendant was sentenced to a fine of $500, a six-month driver's license suspension to run concurrently with the suspension for the DWI offense, and appropriate fees and costs. Defendant's sentence was stayed pending appeal to the Law Division under Rule 3:23.
By order and statement of reasons dated March 25, 2009, the Law Division found defendant guilty of DWI, based solely on the officers' observations. The Law Division ruled the State did not follow the correct procedure for administering the Alcotest, as established in State v. Chun, 194 N.J. 54, cert. denied, __ U.S.__, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), and it suppressed the Alcotest results. The court also found defendant guilty of possession of marijuana. The Law Division imposed the same sentences as the municipal court.
Defendant filed a timely notice of appeal, and the State filed notice of cross-appeal.
The record of the suppression hearing and trial in the municipal court establishes the following facts.
On July 10, 2007, at approximately 2:02 a.m., Officers Glenn Grune and John Clements of the Lincoln Park Police Department were dispatched to an address on Evergreen Drive to investigate a disturbance. When Grune arrived, he observed the resident, Rini Zaku, irate and shouting toward a car parked in the driveway with its engine running. Grune did not recall if the vehicle's headlights were on and did not see it moving at any time. Zaku shouted that his brother-in-law was in the car and "looking for trouble and he's intoxicated and has drugs in his possession." Upon seeing defendant alone in the driver's seat, Officer Grune asked him to step out. Defendant complied.
Grune observed that defendant's eyes were bloodshot and glassy and his motions were slow. In response to Grune's question whether he had anything to drink that night, defendant said he had two drinks at Lace, a bar in Wayne. Grune detected the smell of alcohol on defendant's breath. He asked if defendant would show the contents of his pockets. Defendant reached into his pockets and handed Officer Clements a package of E-Z Wider rolling papers and a pack of cigarettes. Clements found a burnt marijuana cigarette inside the cigarette pack.*fn1
Grune then began a series of field sobriety tests on defendant. He explained and demonstrated the one-leg stand test, showing defendant that he would have to hold his foot six inches off the ground with his hands at his sides and count to thirty. While giving these instructions, the officer noticed that defendant was unable to maintain his balance; he was swaying and raising his arms. Defendant finally completed the test on the third attempt but with his arms raised for balance. Grune concluded that defendant failed the test.
The next test was the walk-and-turn test, which the officer also explained and demonstrated. He instructed defendant to walk nine steps heel-to-toe with his hands at his sides, then turn and walk back the same way. Defendant was unable to maintain his balance during the instructions and, while doing the test, defendant raised his arms more than six inches for balance, walked ten steps forward, did not place heel-to-toe, turned on the wrong foot, and took ten steps to return. Again, Grune concluded that defendant failed the test.
Before administering the field sobriety tests, Grune did not ask defendant if he had any injuries or impairments that may have affected his ability to perform the tests. He did not observe defendant to have any injuries, and defendant did not complain of any. At 2:52 a.m., Grune concluded that defendant was intoxicated and placed him under arrest.
Grune then entered defendant's vehicle to retrieve the keys, and he smelled the odor of burnt marijuana inside the car. He opened the console and discovered and seized a quantity of marijuana and a glass pipe.
Upon arrival at headquarters, Officers Grune and Clements took defendant into the processing room, where his handcuffs were removed, and he was searched and read his Miranda rights.*fn2
At 3:00 a.m., which was about two minutes after they arrived, Grune began asking defendant questions for the police department's Alcohol Influence Report. In response to question ten -- "Are you injured?" -- defendant responded, "No sir, just my back hurts a little." Defendant denied that he was sick, under the care of a doctor, or taking any medication except for depression. To question fourteen -- "How many alcoholic drinks have you had?" -- defendant responded "thirty."
As Grune questioned defendant, Clements and Officer Simone were in the processing room observing defendant, but Simone left the room a number of times. During the observation period, defendant's belongings were inventoried, including more than $16,000 in cash that was counted by the officers.
Clements, the operator of the Alcotest, testified that he observed defendant for twenty minutes in the processing room, as required by the procedures for conducting the Alcotest. He made sure defendant made no movements to his mouth, did not burp, or do "anything of that matter that would throw off the test[.]" Grune, who was present in the room during the entire time, also did not see defendant put anything in his mouth or "throw up."
After the observation period, Clements entered the defendant's information into the Alcotest instrument and allowed it to calibrate. Defendant then provided two breath samples at 3:19 and 3:22 a.m. Defendant's reported breath test result was 0.14% blood alcohol content (BAC).
At trial, Gary Aramini testified as an expert for the defense that, based on National Highway Traffic Safety Administration research and protocol, the field sobriety tests administered by Grune would be unreliable if defendant "had a bona fide back problem." Aramini stated it would be common sense and in accordance with procedure to ask the subject if he had some physical abnormality or injury that would affect the sobriety testing, and verbal tests could have been used in such circumstances. He also testified that if the twenty-minute observation had not been procedurally correct in this case, then the Alcotest breath results would not be reliable. Aramini stated that for the twenty minutes of observation to be uninterrupted, the operator has to be in close proximity to the subject to see if he belches, burps, or puts something in his mouth. He agreed that an operator cannot physically stare at the subject for the entire time because the operator also must input information through the keyboard of the instrument.
On cross-examination, Aramini agreed that bloodshot eyes, the odor of alcohol, and watery eyes were all factors that indicate intoxication and agreed that people lie as to the number of drinks they consume. Further, he acknowledged that defendant did not indicate he had any physical problems that would prevent him from doing the field sobriety tests.
Alban Ameti, defendant's brother, also testified for the defense that on the night of the incident, defendant called him at approximately 1:45 a.m., and he went to Zaku's house to pick him up. As he was parking his car, he observed two or three Lincoln ...