On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-088.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant Arlene Katai appeals from an order entered by the Law Division on June 19, 2009, finding her guilty of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, and refusal to take a breath test to determine the content of alcohol in her blood, contrary to N.J.S.A. 39:4-50.4(a). For the reasons that follow, we affirm.
This appeal arises from the following facts. On October 4, 2008, at approximately 3:15 a.m., Patrolman Dennis Subrizi (Subrizi) of the Denville Township Police Department (DTPD), observed two vehicles traveling east on Route 46. Subrizi followed the vehicles. He observed defendant's car touch the center line of the roadway and then touch the shoulder line twice. Subrizi said that defendant's car swerved continuously within her lane of travel. Subrizi followed defendant's car for a quarter of a mile and stopped the car in Mountain Lakes.
Subrizi approached defendant's car on the passenger side. He detected the odor of alcohol emanating from the vehicle, which he described as the odor of an alcoholic beverage called Sambuca. Subrizi said that defendant's eyes appeared "watery[.]" He requested her credentials. Officer Kristian Sandman of the DTPD arrived on the scene as back up. Subrizi signaled to Sandman that he had detected alcohol. In response to a question from Subrizi, defendant that she had not consumed alcohol. She said that the odor he detected was from her chewing gum.
Sandman approached the open window on the passenger side of defendant's car. He also smelled alcohol emanating from the interior of the car. Subrizi asked defendant to step out of the vehicle. According to Subrizi, defendant appeared lethargic, slow and unsteady. Meanwhile, Sandman approached the second vehicle, which had pulled over and stopped in front of defendant's car. The occupant of that vehicle told Sandman that he and defendant had consumed "a few drinks" at a restaurant on the highway.
Subrizi attempted to administer field sobriety tests to defendant. Defendant told Subrizi that she had to use the restroom. Defendant said that she would not perform the tests. She asked Subrizi to return her driver's license and started to walk to her vehicle. Sandman arrested defendant for obstruction of the administration of the law. Subrizi stated that he detected the odor of alcohol in the police vehicle and on defendant's person during the ride to the police station.
At the station, Subrizi read defendant the standard statement for administration of breath tests. Subrizi said that he tried to ask defendant the questions on the drinking/driving questionnaire but she refused. Officer Jeffrey Tucker (Tucker) of the DTPD administered the Alcotest. He instructed defendant "on how to provide the sample, which was to take a deep breath and blow into the machine with one continuous breath and not stop until told to do so."
Tucker testified that on her first attempt, defendant failed to provide the minimum volume of air necessary for a reading. Tucker again advised defendant on the proper way to provide a breath sample. He said that he "even demonstrated" the process for her. Defendant again failed to provide the minimum volume necessary for a reading.
Tucker told defendant that he would give her one more chance to provide an adequate breath sample. He said that if she failed to do so, she would be charged with refusal to take the test. Tucker again instructed defendant on the manner in which to provide the sample. She provided a sufficient sample on her third attempt.
Tucker told defendant that she had to provide a second sample to complete the test. Defendant stated she knew her rights and refused. Tucker advised defendant that she would be charged with refusal. Defendant agreed to provide the second sample. Tucker again instructed her on the manner in which to provide the sample. She failed to do so. Tucker then concluded that defendant would not provide an adequate breath sample. She was charged with refusal.
The municipal court judge found defendant guilty of DWI, contrary to N.J.S.A. 39:4-50(a), and refusal to submit to a breath test, contrary to N.J.S.A. 39:4-50.4(a). The charges for obstruction of the administration of the law, reckless driving, and failure to maintain a lane were dismissed.
Defendant appealed to the Law Division. Judge John B. Dangler considered the matter on June 16, 2009, and on that date placed his decision on the record. The judge found defendant guilty of DWI and refusal to take the breath test. The judge sentenced defendant to a seven-month suspension of her driving privileges for the refusal and a concurrent three-month suspension of his driving privileges for DWI. The judge ordered defendant to ...