On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2008-022.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 - Decided Before Judges Carchman and Graves.
Following a trial in the municipal court, defendant Scott Thomas was found guilty of driving while intoxicated, N.J.S.A. 39:4-50. He appealed to the Law Division and following a de novo hearing, he was again found guilty and sentenced as a second offender to a two-year suspension of his license as well as a fine of $765 together with statutory surcharges, assessments and costs. He appeals, and we affirm.
These are the facts adduced at the hearing. Detective Theodore Brown stated that on March 1, 2009, at approximately midnight, he and his partner responded to a report of an accident and arrived on the scene to find defendant's car smashed into the divider on the southbound side of the Pulaski Skyway. When he arrived on the scene, an EMS vehicle was there and EMS workers were talking to defendant. Detective Brown lit flares for precaution and placed them near defendant's vehicle. Defendant refused medical treatment and the EMS crew left. Detective Brown further testified that the defendant and his car smelled of alcohol, that defendant had a slight stagger when he exited the vehicle, and that overall defendant was cooperative with the police.
Officer Gonzalez received training to conduct field sobriety tests and to recognize the symptoms an intoxicated person displays while they are under the influence of alcohol. He had made over fifty DWI arrests during the course of his career. He was dispatched to the southbound lane of the Pulaski Skyway on March 1, 2009 at around midnight with Detective Brown because of a motor vehicle accident. Defendant was still inside the car when he arrived and refused medical attention. According to Gonzalez, the smell of alcohol emanating from the car and defendant was immediately apparent to him. Gonzalez asked defendant if he had been drinking that night, and defendant acknowledged that he had had a couple of drinks.
Field sobriety tests were administered at this point by Officer Gonzales. The walk-and-turn test was demonstrated by Gonzalez for defendant but defendant never completed this test because he stumbled and Officer Gonzalez had to stop him from continuing. Defendant was then asked to perform the one-leg-stand test and failed that test as well. Officer Gonzalez asked defendant if he would mind taking a Breathalyzer test and defendant stated he would not have a problem with doing that. Defendant continued to cooperate with police and was placed unhandcuffed in the back of the police car. Officer Gonzalez also decided at this point that, regardless of the results of any breathalyzer test, defendant would be arrested for driving while intoxicated based on defendant's odor of alcohol, his failure to complete the field sobriety tests, and his admission that he had been drinking.
The defense presented two witnesses, defendant and his girlfriend, Maria Flores. Defendant testified that he spent the majority of the time leading up to the accident in Jersey City with his girlfriend at her bar. He stated that he had four shots of tequila during the day, from about 1 p.m. to 4 p.m., and then went upstairs to her residence. At about 11 p.m., defendant went back down to his girlfriend's bar and consumed a beer. He then went back upstairs for about forty-five minutes before leaving to go home at approximately 12:30 a.m. Defendant stated that his home is in Union and that he takes the Pulaski Skyway to get home from Jersey City. As he approached the Raymond Boulevard exit, defendant observed something in the left-hand side of the right lane and tried to maneuver around it but clipped the back passenger side of his car along the railing until vehicle came to a sliding stop along the left rail of the highway. As he was driving that evening, he did not feel that he was intoxicated or that his ability to operate a motor vehicle was impaired.
Maria Flores' testimony consisted of corroborating defendant's account of spending time with her at her bar on the afternoon of March 1, 2009. She stated that defendant consumed some shots of tequila during the afternoon hours, retired to the upstairs apartment for several hours before returning to the bar around 11 p.m. to consume a beer, before eventually leaving to drive home around 12:30 a.m. Ms. Flores also stated that defendant did not appear to be intoxicated when he left to drive home at 12:30 a.m.
On appeal, defendant raises the following issues:
POINT I. THE DE NOVO TRIAL COURT EMPLOYED AN ERRONEOUS STANDARD OF REVIEW BY "AFFIRMING" THE MUNICIPAL COURT'S JUDGMENT RATHER THAN MAKING THEIR OWN FACTUAL FINDINGS.
POINT II. THE RESULT BELOW WAS NOT REASONABLY REACHED - THE STATE DID NOT PROVE THE ELEMENT OF JURISDICTION.
POINT III. THE RESULT BELOW WAS NOT REASONABLY REACHED - THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT, THAT THOMAS WAS UNDER THE INFLUENCE.
We have carefully reviewed defendant's submissions and considered his arguments and we conclude that they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Cassini's thorough and thoughtful ...