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State v. Tirado

August 16, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ELINA P. TIRADO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4759.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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