On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-06-0254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 1, 2011 -- Decided
Before Judges Parrillo and Yannotti.
Defendant David J. Coursen appeals from his conviction, after a jury trial, of second-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5, and the sentence imposed. We affirm.
Defendant and Lynette Decker (Decker) worked together at the Wantage Citco. On February 6, 2005, between 11:00 p.m. and 11:30 p.m., Decker picked up defendant at his home and drove to a bar. Decker played a game with a friend, while defendant sat at the bar and had a few drinks. After around forty-five minutes to an hour, Decker and defendant left the bar and drove to Decker's home so that she could retrieve her purse.
Decker changed cars and she and defendant went back to the pub. Decker spoke with a fellow patron, John Rude (Rude), while defendant sat at the bar and had a few more drinks. When the bartender announced "last call," Rude ordered a round of drinks for himself, defendant and Decker. The bartender asked defendant if he would be driving. Defendant replied that they had come in Decker's car, thereby leaving the impression he would not be driving.
Defendant, Decker and Rude left the bar. In the parking lot, Decker told defendant that she was too intoxicated to drive. She offered to call her sister for a ride home; however, defendant grabbed Decker's keys and said, "I'm driving. Get in the back." Rude apparently realized he also was too drunk to drive and asked if he could ride with defendant and Decker. They agreed. Decker testified that she did not notice any visual sign of defendant's intoxication because she "was drunk."
Rude sat in the front passenger seat and Decker sat in the back, as defendant drove Decker's car out of the bar's parking lot. Rude gave defendant directions. They drove along, smoking cigarettes, listening to music and singing. Decker and Rude each consumed a beer.
At around 2:07 a.m., defendant approached a curve in the road. He was traveling between forty-one and forty-seven miles per hour on a road with a posted speed limit of thirty-five miles per hour. Defendant said that he did not see a sign which cautioned that vehicles should only travel at twenty miles per hour on an upcoming curve. Decker testified that she thought defendant was driving too fast.
As Decker and Rude told defendant to slow down, the car began to slide and skid. The vehicle ran down an embankment on the right side of the road, became airborne, flipped and landed on its passenger side, slid fifteen feet and then came to rest on the driver's side. Defendant never applied the brakes as he lost control of the vehicle. Rude was not wearing a seatbelt. He hit his head on the front windshield and then was ejected from the vehicle.
Decker and defendant climbed out of the car. Rude was lying in the road about thirty feet from the car. At around 5:10 a.m., Rude was pronounced dead. He had received multiple, blunt traumatic injuries in the accident. State Trooper Rebecca Velez (Velez) arrived on the scene at around 2:22 a.m. She asked defendant what happened. He replied, "I lost control in the gravel and that was it . . . I came over the hill. I guess the car rolled, and we lost the passenger."
Defendant told Velez that he had consumed four or five drinks over five hours. Velez noticed that defendant's eyes were bloodshot and watery, his speech was slow and he lacked proper balance. Velez observed the odor of alcohol on defendant's breath. Based on her training and experience, Velez thought that defendant had been driving under the influence of alcohol and placed him under arrest. She issued summonses to defendant for careless driving, N.J.S.A. 39:4-97; reckless driving, N.J.S.A. 39:4-96; driving with an open container of alcohol, N.J.S.A. 39:4-51b; and driving while intoxicated, N.J.S.A. 39:4-50.
A mobile intensive care unit transported defendant to Morristown Memorial Hospital (MMH). At 4:10 a.m., a nurse took a forensic sample of defendant's blood and sealed it in a blood kit. At 4:31 a.m., hospital personnel drew a separate sample of defendant's blood for "medical management purposes." It appears that defendant had broken his collar bone in the accident.
State Trooper Marc Passarella (Passarella) questioned defendant at the hospital. Defendant made the following statement, "I was driving John home. I came over a hill. I didn't know, maybe I was speeding a little bit. I lost control completely and ran down the embankment and the car flipped over." Passarella watched the nurse draw defendant's forensic blood sample, and he transported the blood kit which contained two vials of blood to the Netcong police station. Another State Trooper transported the vials of blood to the State Police Laboratory, which tested the blood and determined that when the blood samples were taken, defendant had a blood alcohol content (BAC) level of .186.
Detective Joseph Costello (Costello) interviewed defendant the day
after the collision. Defendant was informed of his Miranda*fn1
rights. Defendant waived his rights and agreed to answer
Costello's questions. Defendant said that, on the night of the
accident, he may have consumed between seven and eight alcoholic
beverages, including beer and shots of whiskey. Defendant also said,
"I shouldn't have been driving."
Dr. John Brick (Dr. Brick), who was qualified as an expert in the field of alcohol pharmacology and the behavioral and psychological effects of alcohol intoxication, testified at trial. Dr. Brick stated that, in his opinion, defendant's BAC level at the time of the accident was at least between .16 and .20. Dr. Brick said that, in order to reach a BAC of .186, defendant would have had to consume between nine-and-a-half and eleven-and-a-half alcoholic beverages.
Dr. Brick further testified that, on the night of the accident, defendant was "highly impaired" and "at risk" of getting involved in "a fatal crash due to intoxication[.]" He said that a person at the level of defendant's intoxication has a severely impaired ability to operate a car, regardless of his visible signs of intoxication. Dr. Brick opined that "intoxication was a significant contributing factor to, if not the primary cause of, this crash."
After the State presented its case, defendant moved for a judgment of acquittal. The court denied the motion. The jury found defendant guilty of vehicular homicide. Based on the jury's finding, the court found defendant guilty of careless driving, reckless driving, driving with an open container of alcohol and driving while intoxicated, as charged in the motor vehicle summonses.
Thereafter, defendant filed a motion to set aside the jury's verdict, which the court denied. The court sentenced defendant to six years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:32-7.2 (NERA). The court also imposed a three-year period of parole ineligibility pursuant to N.J.S.A. 2C:11-5(b), to run concurrently with the NERA parole ineligibility period.
In addition, the court ordered a ten-year suspension of defendant's driving privileges, to run consecutive to the two-year suspension resulting from defendant's conviction for driving while intoxicated, and a three-year period ...