On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 0104-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Defendant John Enright appeals from the judgment of the Law Division dated April 15, 2009 convicting him of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and sentencing him as a third offender. We affirm defendant's conviction and sentence.
Defendant was first convicted of DWI in 1994. On June 28, 2005, he entered a plea of guilty to a second charge of DWI in the Municipal Court of Gloucester Township. Because more than ten years had elapsed since his first DWI conviction, defendant was sentenced as a first offender pursuant to N.J.S.A. 39:4-50.
On July 1, 2008, defendant was again arrested and charged with DWI, this time in Hamilton Township. He was also charged with careless driving, reckless driving, failure to maintain his lane, and operating an unregistered vehicle.
The following facts were developed at trial and at a suppression hearing. At approximately 9:15 p.m. on July 1, 2008, Officer Eric Bittman of the Hamilton Township Police Department was dispatched to investigate a tip received by telephone that there was an erratic driver on the road. The tipster was an off-duty law enforcement officer for the Camden County Prosecutor's Office. Bittman located the vehicle, a Ford pickup, traveling eastbound on Route 322. Bittman observed the vehicle "straddling the fog line... drift to the shoulder... and cross the - the two lane dividing lanes." Bittman activated his lights and sirens. The vehicle "drifted over towards the shoulder, slowly drifted back, it did put its left-hand turn signal on and then it slowly drifted across both lanes, across the painted median, across both westbound lanes of travel and the shoulder, and finally turned into the parking lot of a restaurant along 322."
Bittman approached the vehicle and asked defendant for his credentials. Defendant's "face appeared to be flush, his eyes were watery.... His speech appeared to be slurred." Although the two had never met, defendant said to Bittman: "You know who I am. You know where I'm coming from." Bittman smelled a strong odor of alcohol coming from the vehicle. He asked defendant if he had consumed any alcoholic beverages. Defendant answered that he had "a few." Sergeant Greg Ciambron arrived as backup, and the officers ordered defendant out of his vehicle to administer field sobriety tests. While stepping out, defendant grabbed the door of his truck for support and was "staggering, he had a very spread stance. It appeared he had a hard time just standing up."
Bittman asked defendant if he had any injuries or anything that would prevent him from performing the field sobriety tests, and defendant replied no. Defendant was unable to complete the one-leg stand test, dropping his foot after only a few moments on both attempts. Bittman then administered the walk-and-turn test, instructing defendant to take nine steps forward and nine steps back in a straight line in heel to toe fashion with his arms at his sides. Defendant did not walk heel to toe and raised his arms to gain balance several times. He was unable to walk in a straight line.
Defendant was then arrested. Bittman could smell the odor of alcohol "filling" his police car on the way to the station. Defendant was given an Alcotest, but the State did not present the test results in evidence at trial because the officer did not observe defendant for twenty minutes before administering the test, as required by State v. Chun, 194 N.J. 54, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008).
Russell Dorris testified for the defense as a fact witness. Dorris worked with defendant and was with him on the night of the arrest. Dorris and defendant had gone to a bar named Platinum Playground at approximately 6:00 p.m. to fix a gas line and install a propane tank. They finished the job at 7:15 and went inside and had "a couple drinks." The two left at about 9:00 p.m. Dorris did not have concerns about defendant driving because "he looked normal." He did not believe defendant was under the influence of alcohol. Dorris had been driving behind defendant when defendant was pulled over by Officer Bittman.
Defendant testified that, while at the Platinum Playground, he had three bottles of Budweiser and then three bottles of O'Doul's, a non-alcoholic beverage. He said he was not drunk. Defendant admitted he could not perform the walk-and-turn test.
He claimed he suffered from arthritis and psoriasis. He said when Bittman asked him if he had any injuries he answered no because he did not "have any broken legs or sprained ankles or anything like that."
The municipal court found defendant guilty of DWI and failure to maintain his lane. Defendant was sentenced as a third offender on the DWI charge to serve 180 days in county jail, his driver's license was suspended for ten years, and he was ordered to have an alcohol ignition interlock for one year. Fines and penalties were also imposed.
Defendant filed for a trial de novo in the Law Division pursuant to Rule 3:23. Judge Robert Neustadter of the Superior Court heard the case on April 2, 2009. Judge Neustadter also found defendant guilty of DWI, and he reimposed the same sentence as the municipal court on April 15, 2009, except that the lane violation was merged into the DWI charge. The custodial portion of defendant's sentence was stayed pending appeal. Defendant filed a timely notice of appeal to this court.
On January 21, 2009, after his conviction in the municipal court but before the proceedings in the Law Division, defendant filed a petition for post-conviction relief (PCR) from his 2005 conviction in the Gloucester Township Municipal Court. That conviction had not been appealed, ...