On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-049.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2011 - Decided
Before Judges Fisher and Simonelli.
In the early morning hours of June 3, 2008, defendant's vehicle was stopped by police in Morris Township because she was exceeding the posted speed limit and thereafter failed to make a left turn from a left-turn-only lane. In speaking with defendant, the officer detected an odor of alcohol and noticed she had watery eyes. The officer received a non sequitur to one question,*fn1 and defendant admitted having had two drinks that evening at a Morristown restaurant.
The officer conducted a field sobriety test. He stopped the one-legged-stand test because defendant had trouble keeping her balance; defendant's speech was also slurred when she counted out loud. In addition, the officer asked defendant to perform the walk-and-turn test; she was unable to touch heel to toe or maintain a straight line. Defendant was arrested and taken to the police station.
Another officer was called to administer the Alcotest. He later testified that after waiting the required twenty-minute observation period, see State v. Chun, 194 N.J. 54, 79, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), defendant provided two adequate breath samples, resulting in a detected blood alcohol content of .12%. Defendant was issued a summons for driving while intoxicated (DWI), N.J.S.A. 39:4-50, speeding, N.J.S.A. 39:4-98, and failure to exhibit an insurance card, N.J.S.A. 39:3-29.
After hearing testimony regarding defendant's motion to suppress evidence, which was denied, the municipal judge conducted a trial. At the trial's conclusion, the municipal judge found defendant guilty of DWI based upon the result of the Alcotest but found the State's case insufficient insofar as it was based on the officers' observations. This was defendant's second DWI conviction.
The judge imposed a $506 fine, a $100 surcharge, and other penalties and assessments. In addition, defendant's driving privileges were suspended for two years. She was also sentenced to forty-eight hours in jail and directed to complete thirty days of community service.*fn2
Defendant appealed, and the Law Division judge conducted a de novo review. He found defendant guilty of DWI based on both the Alcotest results and the officers' observations. The Law Division judge imposed a $506, a $200 surcharge, and other monetary penalties and assessments. In addition, defendant's driving and registration privileges were suspended for two years, she was directed to provide thirty days of community service, and she was sentenced to a forty-eight hour jail term, which the judge permitted to be served at the Intoxicated Drivers' Resource Center. The judge also convicted defendant of failing to produce proof of insurance and imposed a $155 fine plus costs on that violation.
Defendant appealed to this court, arguing:
I. THE STATE DID NOT PROVE THAT THE MANDATORY TWENTY-MINUTE OBSERVATION PERIOD WAS OBSERVED PRIOR TO ADMINISTERING THE ALCO-TEST.
II. THE COURT ERRED IN REFUSING TO TAKE JUDICIAL NOTICE THAT A PERSON CANNOT EXHALE FOR THE EXCESSIVE AMOUNT OF TIME INDICATED BY THE ALCOTEST RESULTS.
III. THE LAW DIVISION ERRED IN FAILING TO DEFER TO THE MUNICIPAL COURT'S CREDIBILITY FINDINGS WITH ...