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State v. McCloskey

July 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRETT H. MCCLOSKEY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. 111-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2010

Before Judges Parrillo and Lihotz.

Defendant Brett H. McCloskey appeals from his conviction, after a trial de novo in the Law Division, for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). As a consequence of his conviction, defendant's driving privileges were suspended for three months, applicable fines and costs were imposed, and he was ordered to attend twelve hours of education at the Intoxicated Driver Resource Center (IDRC).

On appeal, defendant seeks reversal of his conviction arguing:

POINT ONE

THE COURTS BELOW SHOULD HAVE ADMITTED THE OPINION OF DEFENDANT'S EXPERT PHARMACOLOGIST THAT DEFENDANT WAS SUFFERING A HYPOGLYCEMIC EPISODE RATHER THAN THE INFLUENCE OF ALCOHOL BECAUSE, IN CONTEXT, THE OPINION WAS GIVEN WITH A REASONABLE DEGREE OF SCIENTIFIC PROBABILITY.

POINT TWO

THE COURTS BELOW ERRED IN EXCLUDING THE DATA LOG REGARDING DEFENDANT'S GLUCOSE LEVELS AND, AS A RESULT, SIGNIFICANTLY UNDERMINED THE FACTUAL BASIS FOR THE EXPERT PHARMACOLOGIST'S OPINION THAT DEFENDANT WAS SUFFERING A HYPOGLYCEMIC EPISODE RATHER THAN THE INFLUENCE OF ALCOHOL.

After reviewing the record and the applicable law, we conclude the Law Division judgment is firmly supported by sufficient credible evidence, and the contentions set forth by defendant lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We, therefore, affirm with only these brief comments.

We summarize the facts relevant to our review. On March 18, 2006, at approximately 12:26 a.m., State Trooper Paul Grasso was patrolling eastbound Route 70 in Woodland Township. About six car lengths ahead, Grasso noticed a white Nissan wagon cross over the center and fog lanes on a "couple of occasions." Believing the driver was falling asleep or intoxicated, Grasso activated the patrol car's overhead lights to conduct a motor vehicle stop. Defendant did not respond. After following defendant for approximately one-half mile, Grasso activated the siren. Defendant pulled over.

As Grasso approached, he smelled alcohol emanating from the vehicle's open window. Grasso asked for defendant's driving credentials and noticed defendant's eyes were bloodshot and watery, his eyelids were heavy, his movements were slow, and he appeared "disoriented," as he fumbled to retrieve his documents.

Believing defendant had been drinking, Grasso asked him to exit his vehicle. Grasso then requested that defendant perform three field sobriety tests: recite the alphabet from "A" to "L", perform a one-legged stand, and complete a full walk-and-turn. Grasso inquired whether defendant suffered any physical conditions that would impede his ...


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