On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 02-09-C-T13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Waugh.
Defendant Patricia M. Nevan appeals from a judgment convicting her of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50a(1)(i). Summons No. H-061656 charging her with this offense was issued by the Hillsborough Police on May 30, 2008. After pleading not guilty, she filed a motion to suppress evidence, which was denied by an order entered on December 24, 2008. The trial took place on January 9, 2009, and she was convicted as charged on January 26, 2009, by the municipal judge for Hillsborough. The municipal judge imposed sentence as follows: $1364 in fines and costs; ten years loss of driving and registration privileges; and 180 days in the Somerset County Jail. Defendant appealed her conviction to the Law Division. Incarceration was stayed pending appeal. After denying a stay with respect to the loss of driving and registration privileges, the appeal de novo was argued on May 29, 2009. The Law Division judge also found defendant guilty of DWI and on June 2, 2009, entered a judgment of conviction that imposed the same penalties as were imposed on January 26, 2009, but this time the suspension of defendant's driving and registration privileges was stayed pending appeal. We now affirm.
The matter was tried on stipulated facts contained in three joint exhibits:*fn1 (1) a tape recording and transcript of a police dispatch call on May 30, 2008; (2) a copy of the police drinking-and-driving report, a three-page supplement, the alcohol influence report, and the drinking-driving questionnaire; and (3) a stipulation as to the qualifications of the operation and the foundational documents that the machine was properly working together with Worksheet A.
At about 3:27 p.m., a call was made to the Hillsborough Police Department in which the caller identified herself as Jen and stated that she was a teacher who was at the Bottle King. She reported she had just seen a blonde woman who was wearing all black clothing enter the Bottle King as Jen walked out. She reported that "she's so drunk I don't know how she drove here." She expressed that she was afraid the woman would get back in her car. The dispatcher sent a squad car to the Bottle King based on Jen's report. The dispatcher asked Jen if the woman was still in the store, and she replied that she was. He told Jen he had an officer right around the corner. Jen stated that she was still in the parking lot and the woman was still in the store. Jen soon saw the officer as he "pulled up front," and the telephone call ended.
Officer Howard entered the store and saw a woman, later identified as defendant, matching the description given by Jen. Defendant carried two containers of wine to the checkout area, paid the cashier, exited the store, staggered to an unoccupied motor vehicle, entered the front passenger side of the vehicle, sat down, and closed the passenger door. Howard inquired about the driver of the vehicle, and she replied that a friend was driving. Defendant was unable to explain where her friend was or what her name was. Ultimately, defendant admitted to being the driver of the vehicle. Further, she stated to Howard that she had driven to the Bottle King to purchase wine.
Howard smelled alcohol on defendant's breath. He administered several field sobriety tests. Defendant could not raise her foot six inches off the ground, simply raising her heel, but not her toe, during the One-Leg Stand Test. She was instructed on the performance of the Walk-and-Turn Test, noticeably swaying during the instructions. Although she was asked three times to perform this test, each time she only stood still and the test was terminated. Howard noted that defendant was "swaying, grasping for support, staggering, continually leaning for balance[;] her speech was slow and slurred[;] her eyes were watery and bloodshot[;] her eyelids were droopy[;] her face was flushed[;] and her clothes were mussed." Defendant was arrested and charged with DWI. Officer Russell Wilde administered an Alcotest(r) at police headquarters, and it was determined that defendant's Blood Alcohol Concentration (BAC) was 0.27%.
The municipal court judge found, in light of defendant's admission that she drove to the Bottle King, she had driven to the store while intoxicated. He also based this finding on the observations of Jen and Howard. The judge found that defendant's BAC was 0.27%. He concluded beyond a reasonable doubt that defendant was guilty of DWI. Because defendant had been convicted of DWI in 1991 and again in 2000, the judge sentenced defendant as a third-time offender.
The Law Division judge made similar findings of fact and imposed the same sentence as the municipal court judge. However, in doing so, he expressed that he was familiar with the Hillsborough Bottle King store, which he described for the record. He found that defendant operated the vehicle to get to the store and then described the layout of the shopping complex in which the store was located. He then found, "It's apparent to me... that when she returned to the vehicle, seeing two squad cars and two cops, [she] wisely decided to sit in the passenger side... and decided to tell the police a bogus story." He concluded that there was no intent to drive. He found there was no evidence of any bottles in the car to suggest that defendant sat in her car and became intoxicated in the parking lot. He found a person weighing 115 pounds had to drink a lot of alcohol to have a BAC of 0.27%. He concluded that defendant became intoxicated elsewhere and drove to the Bottle King in that condition to purchase wine. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I -- THERE WAS INSUFFICIENT, CREDIBLE EVIDENCE ADDUCED BELOW TO SUSTAIN THE DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED BEYOND A REASONABLE DOUBT, NECESSITATION A REVERSAL OF HER CONVICTION FOR A VIOLATION OF N.J.S.A. 39:4-50 AND THE ENTRY OF A JUDGMENT OF ACQUITTAL.
A. The court below relied upon facts (some of which were not in the record before it) and purportedly, the reasonable inferences drawn therefrom, to incorrectly conclude that the defendant operated, or intended to ...