On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 06-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Sabatino and Ashrafi.
Defendant James Mertz appeals from a judgment of conviction after trial de novo in the Law Division for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusing to take a breath test, N.J.S.A. 39:4-50.2; and reckless driving, N.J.S.A. 39:4-96. We affirm.
At about 9:20 p.m. on February 5, 2008, in Point Pleasant Beach, defendant lost control of his car and drove down a railroad embankment and into a tree. The police responded immediately to the scene. They did not see any visible signs of injury to defendant, and he declined emergency medical services. When questioning defendant about the cause of the accident, the police smelled alcohol. They conducted roadside sobriety testing, which was recorded by the dashboard camera of a police car. Because defendant performed poorly on the physical tests and showed other signs of being under the influence of alcohol, the police arrested and transported him to the police station for an Alcotest to measure his blood alcohol content. Defendant refused to submit to the breath test after the police provided all the proper advice and warnings. He was then charged with the three listed offenses.
Defendant was tried in the municipal court of Point Pleasant Beach over four dates from July 21, 2008, through January 16, 2009. Witnesses at trial were two police officers who testified for the State and an eyewitness to the accident and a doctor who testified for the defense. The video recording from the police car was also admitted in evidence. Defendant elected not to testify.
The municipal court judge found defendant guilty of all three charges. Defendant, who was fifty-three years old at the time of sentencing, had no prior similar violations and a clean driving record. On the charge of DWI, the municipal court sentenced defendant to a fine of $306, ninety-day suspension of driving privileges, twelve hours at the Intoxicated Driver Resource Center (IDRC), $200 surcharge, $33 costs, $50 payable to the Violent Crime Compensation Board (VCCB), and $75 payable to the Safe Neighborhood Fund. On the refusal charge, defendant was sentenced to another fine of $306, seven months' revocation of driving privileges consecutive to the revocation for DWI, twelve hours IDRC concurrent with the DWI sentence, $100 surcharge, and $33 costs. The conviction for reckless driving was merged into the DWI for purposes of sentencing.
Defendant appealed his conviction to the Superior Court, Law Division, under Rule 3:23. After reviewing the record of the municipal court proceedings and viewing the video evidence, the Law Division judge also found defendant guilty of all three charges and re-imposed the same sentences. Both the municipal court and the Law Division stayed defendant's sentences pending appeal.
Defendant raises the following arguments in this appeal:
POINT I THE STATE FAILED TO MEET ITS BURDEN OF PROOF ON THE CHARGE OF DWI (N.J.S.A. 39:4-50).
POINT II THE STATE FAILED TO PROVE DEFENDANT'S GUILT OF REFUSAL TO SUBMIT TO A CHEMICAL TEST BEYOND A REASONABLE DOUBT.
Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 148, 162 (1964)). We do not attempt to determine how we would have decided the matter but "give deference to those findings of the trial judge which are substantially ...