On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Fasciale.
Defendant, Paul Kleim, appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50; refusal to take a breath test, N.J.S.A. 39:4-50.4a; failure to exhibit his registration card, N.J.S.A. 39:3-29; and failure to exhibit his insurance card, N.J.S.A. 39:3-29. On appeal, he raises the following issues for our consideration:
POINT I THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD OPERATED HIS VEHICLE OR HAD THE INTENT TO OPERATE HIS VEHICLE AT THE TIME OF ARREST.
POINT II THE STATE FAILED TO PROVE THAT DEFENDANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT AND IN FACT IGNORED SUBSTANTIAL EVIDENCE THAT DEFENDANT WAS NOT INTOXICATED AT THE TIME OF HIS ARREST.
POINT III THE STATE DID NOT PROVE DEFENDANT'S REFUSAL TO SUBMIT TO A BREATHALYZER TEST BEYOND A REASONABLE DOUBT.
POINT IV THE STATE'S RELIANCE ON THE HGN TEST TO ESTABLISH DEFENDANT'S INTOXICATION REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.
POINT V THE STATE FAILED TO PROVE THAT DEFENDANT WAS GUILTY OF FAILING TO PRODUCE HIS REGISTRATION AND/OR INSURANCE CARD BECAUSE THE POLICE DID NOT HAVE THE RIGHT TO ENTER DEFENDANT'S AUTOMOBILE AND SEARCH FOR HIS REGISTRATION AND INSURANCE CARD WITHOUT A WARRANT.
At the trial of this matter, to avoid repetition, the parties relied on testimony provided at a prior unsuccessful motion to suppress evidence in order to establish the police's version of events up to the time of defendant's arrest. Our summary of the facts of this matter is therefore similarly derived both from the suppression hearing and from the trial.
Patrolman Albert Chibookian testified for the State. He stated that on October 22, 2008, at approximately 8:30 in the evening, defendant came to the Jefferson Township Municipal Building to obtain an emergency responder identification card. He was informed by the police dispatcher, located at a "police window" in the lobby of the building, that the police computer that could generate such a card was broken and that the officer in charge of identification cards was ...