On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant William Meyer appeals from the Law Division order of September 28, 2009, finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; careless driving, N.J.S.A. 39:4-97; and failure to maintain lane, N.J.S.A. 39:4-88.
On appeal, defendant raises the following issues:
THE ISSUE OF DEFENDANT'S ALLEGED INTOXICATION IS SHROUDED WITH REASONABLE DOUBT, REQUIRING REVERSAL OF HIS CONVICTION FOR DWI.
THE COURT IGNORED UNCHALLENGED EXPERT TESTIMONY REGARDING THE DIMINISHED RELIABILITY OF FIELD SOBRIETY TESTS IN DETERMINING INTOXICATION.
At the municipal court trial, the State presented the testimony of a police officer for the Borough of Lincoln Park. The officer testified that at about 4:10 a.m. on the morning of May 5, 2006, he observed a vehicle stopped in the middle of the road and then slowly make a turn. As the officer followed the vehicle, he saw it drift across the fog line numerous times, coming close to going off the road. The officer stopped the vehicle.
Defendant was the driver of the vehicle. The officer observed that defendant's eyes were "extremely bloodshot," his breath smelled of alcohol, and his speech was slurred. When asked to recite the alphabet, defendant slurred the letters together. The officer administered field sobriety tests, namely, the walk-and-turn test and the one legged stand. Defendant performed the tests poorly, having difficulty maintaining his balance, and at the end of the walk-and-turn test, he fell onto the hood of his vehicle. Based on these circumstances, the officer concluded that defendant was intoxicated above the legal limit and arrested defendant. At police headquarters, the breath test was administered to defendant. The reading from the breath test showed a blood alcohol concentration of .09 percent.
The defense presented the testimony of an expert who testified about the breath test and the field sobriety tests administered in this case. He testified about problems with the reliability of the alphabet test and the field sobriety tests in general and in particular about the manner that the field sobriety tests were administered to defendant. He stated that the field sobriety tests should not be administered to a person fifty pounds or more overweight and suggested that defendant met that criterion on the date of the arrest.
Because State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008), was pending, the municipal judge did not rest his decision on the breath test, and thus, made no finding on the question of a per se violation under N.J.S.A. 39:4-50. However, the municipal judge concluded, based on the police officer's observations, that defendant was guilty of DWI. The sentencing hearing date was adjourned pending the Court's decision in State v. Chun. After State v. Chun was decided, the case was rescheduled before the municipal judge. On June 29, 2009, the municipal judge sentenced defendant on the DWI charge to a three month license suspension, twelve hours in the Intoxicated ...