On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 43-2008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant William Powers, Jr., appeals from a judgment of conviction of driving while intoxicated (DWI), N.J.S.A. 39:4-50.
On the trial de novo, the Law Division judge affirmed the guilty finding of the municipal court. We affirm.
These are the relevant facts. Defendant was driving home from a friend's house at approximately 1:00 a.m. on December 22, 2007, when he passed Gloucester City Police Officer Joseph Eller's parked police cruiser. Officer Eller was on DWI patrol that evening. While defendant was not speeding, swerving, driving carelessly or recklessly and did not fail to use a turn signal, Officer Eller used his Mobile Data Terminal (MDT) system to conduct a random inquiry on defendant's vehicle. He determined that defendant had a suspended registration and was operating and unregistered vehicle. Officer Eller proceeded to stop defendant's vehicle.
At the vehicle stop, Officer Eller approached the vehicle and observed that defendant "had bloodshot, watery eyes, odor of an alcoholic beverage on his breath," his movement was slow and he appeared "mildly" disheveled. However, his speech was not slurred, and although he fumbled as he reached for his credentials, defendant did not drop them or have trouble locating them. Officer Eller informed defendant that he was under suspicion of driving while intoxicated and asked defendant to step out of the vehicle. As defendant did so, his physical coordination was slow and uncoordinated. Officer Eller then asked defendant to perform a series of field sobriety tests on a sidewalk, which was flat and sufficiently well-lit.
Defendant first performed the straight line walk test. Officer Eller physically demonstrated to defendant how this test was to be performed; it required defendant to take "nine steps forward, pivot, turn, [take] nine steps back in a heel-to-toe fashion counting [his] steps aloud." Defendant began the test before he was instructed to begin, failed to count his steps out loud and had trouble maintaining a heel-to-toe position. Officer Eller did not comment to defendant about his performance on the test.
Officer Eller next conducted the one-legged stand test, which required defendant to "pick a leg of [his] choice, raise [his] opposite leg six inches of the ground, pointing towards the sky, count aloud 30 seconds in a one 1,000 fashion while maintaining his balance." Again, Officer Eller demonstrated this test to defendant. Defendant counted out loud, did not let his foot touch the ground and did not raise his arms for balance during the test, but defendant "had great difficulty maintaining balance. He flailed his arms out to the sides, which [the police] instruct against."*fn1
Based on his observations, training and experience, Officer Eller concluded that defendant was under the influence of alcohol.*fn2
At the station, Officer Eller requested that defendant take an Alcotest, but defendant refused. Defendant claimed that he was willing to take the test but requested that another officer be present, because defendant feared that the test results would be "doctored." Defendant was initially calm and polite, but became mildly antagonistic when he learned the identity of Officer Eller's brother. Apparently there was a pre-existing family dispute between Officer Eller's brother and defendant's sister. According to Officer Eller, however, he had never previously met defendant or defendant's sister, and he did not know what type of car defendant drove. Defendant claimed that he knew who Officer Eller was during the entire stop, even though they had never previously met.
At the police station, Officer Eller administered a drinking and driving questionnaire to defendant. Defendant did not answer the questions about alcohol consumption, but Officer Eller reported defendant had consumed seven or eight beers. Defendant was then released to his mother.
At trial, defendant disputed the nature of the various tests that he performed. He claims that he performed the one-legged stand test first. He also stated that Officer Eller yelled at him for beginning this test before instructed. He explained that Officer Eller never instructed him to wait for instructions to begin the test, so he began once Officer Eller finished his demonstration. Defendant further stated that he performed the walk and turn test second. He claimed that he ...