On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4709.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Coburn.
Defendant, Vladimir Yakovlev, appeals*fn1 from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Defendant was sentenced to a $306 fine, $33 court costs, $50 Violent Crime Compensation Board penalty, $200 DWI surcharge, $75 Safe Neighborhood Assessment, twelve hours attendance at the Intoxicated Driver Resource Center and a seven-month driver's license suspension.
On the night of October 18, 2006, while driving in Wayne Township, defendant, who was alone in his car, struck a telephone pole with his vehicle. As he stood outside of the car observing the damage, a police officer on patrol happened by. The officer noted a strong odor of alcoholic beverage emanating from defendant, and observed that defendant had bloodshot and watery eyes, his speech was delayed and slurred, and he was using his car for balance. Defendant acknowledged that he had consumed alcohol that evening. He could not explain why his car was damaged, stating he believed he hit a pothole. The officer observed significant damage to the passenger side of defendant's vehicle and saw that a large piece of the telephone pole had splintered off as a result of the collision and was attached to defendant's vehicle.
Based upon these observations, the officer subjected defendant to a series of roadside sobriety tests. Defendant's performance was unsatisfactory. The officer placed defendant under arrest for DWI. Defendant then complained of discomfort because of a kidney stone problem. Accordingly, he was transported to a nearby hospital for evaluation. At the hospital, a blood sample was drawn. Analysis of the sample revealed a 0.15% Blood Alcohol Content (BAC).
Based upon this evidence, the municipal court judge, after first denying defendant's motion to suppress evidence of his arrest and of the field sobriety tests, found defendant guilty of DWI based both upon physical observations and as a per se offense.
Defendant appealed to the Law Division. Based upon his review of the municipal court record, and after hearing oral argument, Judge Caposela issued a written opinion on April 11, 2008. He found sufficient evidence to establish probable cause for defendant's arrest. He also found that the blood test results were properly admitted in evidence and were medically accurate. Finally, he found that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DWI "based upon the arresting police officer's numerous field observations of intoxication as well as the Defendant-Petitioner's per se violation of the DWI statute provided by his blood alcohol concentration of 0.15%." The judge accordingly found defendant guilty and imposed the sentence we have previously mentioned, which was the same sentence that had been imposed by the municipal court judge.
On appeal to this court, defendant argues:
DECISION OF THE LOWER COURTS SHOULD BE REVERSED OR REMANDED TO THE ORIGINAL LOWER COURT FOR ANOTHER TRIAL, BECAUSE THE STATE DID NOT PROVE BY COMPETENT AND SUFFICIENT EVIDENCE THAT THE DEFENDANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT, AS REQUIRED IN CRIMINAL PROCEEDINGS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION.
DECISION SHOULD BE REVERSED BECAUSE THE ARRESTING OFFICER HAD NO PROBABLE CAUSE TO ARREST ...