August 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELINA P. TIRADO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4759.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Graves and J.N. Harris.
Defendant Elina Tirado appeals from her conviction for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4- 50, following a trial de novo in the Law Division.*fn1 After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
On May 26, 2006, Butler Police Officer Keith Soules responded to a motor vehicle accident on State Highway Route 23 South at approximately 4:00 p.m. It was a clear day, the roadway was dry, and the speed limit at the location of the accident was fifty miles per hour. Soules testified he observed defendant's "heavily damaged" car positioned "in the center divider . . . with the front wheel missing." He determined the accident actually occurred in a neighboring municipality and advised the dispatcher to notify the West Milford Police Department of the accident. Soules testified defendant was the sole occupant of the damaged vehicle and there were no other vehicles in the vicinity of the accident. As Soules approached defendant's vehicle, he noticed the engine was still running and defendant was attempting to drive away, but the vehicle was not moving.
Officer Soules testified he told defendant to shut the engine off. However, she failed to do so. Soules then reached through an open window and turned the engine off himself. When Soules asked defendant to produce her driving credentials, she handed him a "stack of . . . P.B.A. cards." The officer did not observe any visible injuries to defendant, and she responded she was not injured when he questioned her.
Soules then asked defendant to exit the vehicle. After she did so, Soules observed "she was having a very hard time standing up," she was "off balance," and "swaying," and she used the vehicle for support. According to Soules, defendant "had a very strong odor of an alcoholic beverage on her breath," "her clothes were just disarranged," and her speech was slurred. Based on his training and experience as a police officer for twelve years and his observations of defendant, Soules concluded she had been driving while intoxicated.
Officer Frank Elia of the West Milford Police Department testified that when he arrived at the location of the accident, he did not observe any conditions in the roadway that could have caused or contributed to the accident. After speaking with defendant, he detected an odor of alcohol on her breath and testified plaintiff "needed to lean against the barrier, then part of her front car for balance." Based on his observations, Elia concluded that defendant was intoxicated and arrested her for DWI. Due to the high volume of traffic on Route 23, Elia decided to transport defendant to police headquarters "to perform field sobriety tests."
Officer Elia's police vehicle was equipped with a video camera, which recorded the events from the time he arrived at the location of the accident until he parked the vehicle at West Milford Police Headquarters and escorted defendant into the building. The video was played in court and admitted into evidence. The video did not record audio. Based on the videotape, there is no dispute that the time between defendant's arrest and her arrival at the police station was approximately seventeen minutes.
At police headquarters, Officer Elia asked defendant to perform a standing balance test and a walking test. The officer demonstrated the standing balance test for defendant, advising her to raise her left foot six inches off the ground and count aloud backwards from thirty while standing with her hands at her sides. Elia testified he asked defendant if she understood him and she responded in the affirmative. He also testified defendant failed to count aloud and placed her foot on the ground three times during the test.
The walking test required defendant to take nine steps in a heel to toe manner, three short steps to turn around, and nine steps backward, while counting every step out loud. Officer Elia testified defendant attempted the test but did not walk in a straight line and placed her hands on the wall to maintain her balance. According to Elia, defendant's inability to successfully perform these tests provided further proof she was intoxicated.
A third officer administered two breathalyzer tests to defendant and testified at length regarding the procedures he followed. The breathalyzer tests revealed a blood alcohol concentration of .30 and .31 percent.
Defendant did not testify, but she presented the testimony of Gilbert Snowden, who was qualified as an expert witness. Snowden criticized the manner in which the field sobriety and breathalyzer tests were administered to defendant.
Following Snowden's testimony, defendant objected to the admissibility of the breathalyzer test results, and both sides were allowed to brief the issue. Defense counsel subsequently objected to the disclosure of the breath test results, which were included in the prosecutor's brief, arguing that the disclosure violated the parties' agreement and unduly prejudiced defendant's right to a fair trial. The court rejected that argument, however, and ruled the breathalyzer test results were admissible.
Based on the breath test results, the municipal court judge found defendant guilty of a per se violation of the DWI statute. In addition, the court found the testimony provided by Officers Soules and Elia was credible and sufficient to establish defendant's guilt beyond a reasonable doubt. The judge sentenced defendant as a third-time offender to serve 180 days in the Passaic County Jail, and to forfeit her driving privileges for ten years. The court allowed defendant to spend ninety days of her jail sentence at an inpatient rehabilitation center approved by the Intoxicated Driver Resource Center and imposed all mandatory fines, fees, assessments, and penalties.
Defendant's de novo appeal to the Law Division was argued on October 24, 2008, and decided on November 12, 2008. In a written decision, the Law Division detailed its reasons for rejecting defendant's claims that: (1) the police did not have probable cause to arrest her for DWI; (2) the breathalyzer test results were unreliable and inadmissible; (3) the trial court's findings were tainted because the municipal prosecutor advised the court of the breathalyzer readings prior to the court's determination that the breath test results were admissible; and (4) the proofs were insufficient to convict because there were other possible explanations for the observations made by Officers Soules and Elia. The Law Division found defendant guilty of violating N.J.S.A. 39:40-50 and imposed the same penalties as the municipal court.
On appeal to this court, defendant presents the following arguments:
THE POLICE LACKED PROBABLE CAUSE TO ARREST MS. TIRADO FOR DRIVING WHILE INTOXICATED.
BECAUSE THE BREATHALYZER OPERATOR FAILED TO OBSERVE THE DEFENDANT FOR 20 MINUTES PRIOR TO THE BREATH TEST, THE BREATHALYZER READINGS MUST BE EXCLUDED.
THE PROSECUTOR INTENTIONALLY ENGAGED IN MISCONDUCT BY SUPPLYING THE BREATHALYZER READINGS TO THE COURT DURING THE MOTION TO SUPPRESS TAINTING THE TRIER OF FACT CONSTITUTING REVERSIBLE ERROR.
THE BREATHALYZER OPERATOR FAILED TO PROPERLY ADMINISTER THE BREATHALYZER AND AS A RESULT, THE READINGS MUST BE EXCLUDED.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS INTOXICATED.
We conclude from our examination of the record that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm the order of November 12, 2008, substantially for the reasons stated by Judge Philip H. Mizzone, Jr., in his written decision, with only the following comments.
In determining whether a driver is under the influence of alcohol, field sobriety tests and breath tests are not always required. Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd, 293 N.J. Super. 535 (App. Div. 1996). For example, in State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993), we found that the evidence of intoxication, including defendant's slurred speech, loud and abusive behavior, bloodshot eyes, and disheveled appearance, together with the strong odor of alcohol, was sufficient to sustain a DWI conviction. Similarly, there was strong observational evidence to support defendant's DWI conviction, and that evidence was corroborated by defendant's inability to properly perform the balance tests and by the breathalyzer test results.
Appeals from municipal court convictions are heard first in the Law Division. The review is de novo on the record. R. 3:23-8(a). Upon further appeal to this court, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). In the present matter, we conclude from our review of the record that Judge Mizzone properly applied well-settled legal principles and his findings are supported by sufficient credible evidence. Moreover, defendant has failed to establish an "obvious and exceptional" error. See State v. Locurto, 157 N.J. 463, 474 (1999) ("Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.").