On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-084.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued March 23, 2011
Before Judges Parrillo and Roe.
Defendant Jennifer Muller was found guilty in the Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50. On appeal to the Law Division, R. 3:23-2, she was again found guilty of the same offense after a trial de novo. R. 3:23-8(a). Defendant appeals, and we affirm.
At 6:54 p.m. on March 14, 2009, Sergeant Joseph Johnson of the Jefferson Township Police Department responded to the scene of a single-car accident at 2 Ress Road in Jefferson, where he observed a Chevrolet Camaro "hung up" or lodged on a stone retaining wall on the side of a residential driveway. Upon pulling up to the scene, Sergeant Johnson noticed defendant coming out of the vehicle on the driver's side and a male underneath the vehicle trying to pull rocks out from its undercarriage.
Patrolman Robert Bush arrived soon after Sergeant Johnson. After parking his patrol car on Ridge Road, a paved road with a speed limit of forty miles per hour, the officer walked approximately fifty feet to where the accident had taken place on Ress Road, a dead-end dirt road connected to Ridge Road. Officer Bush spoke with defendant, who was standing next to the vehicle. Even before she spoke, Officer Bush detected the odor of alcohol on her from one to two feet away. Defendant identified herself as the driver of the vehicle and said that she had been drinking earlier that day. When asked to produce her credentials, her hands began fumbling.
At this point, Officer Bush walked with defendant to the front of his patrol car on Ridge Road to conduct field sobriety testing. As she walked by Officer Bush's patrol car, she put her hand on it for balance and leaned against the vehicle. While she was walking with Officer Bush, defendant explained that she was a dancer at a go-go bar called Smiles, where she had been earlier that day. Defendant admitted having had a few drinks while working, along with a few shots of Bailey's Irish Cream. She then had traveled to another bar called the Daily Planet, where she had a few drinks and met a friend whom she brought to the Ress Road residence. The accident happened as defendant was leaving the home on Ress Road when she backed out of the driveway and onto the wall.
Officer Bush then conducted a series of sobriety tests in front of his patrol car, which was parked in the roadway because there was no shoulder.*fn1 Defendant first performed the alphabet test and she recited the alphabet A to Z without any error. Next, Officer Bush conducted a counting test, instructing defendant to count backwards from 100 to 70. During this test, defendant failed to follow instructions, continually forgot what number she was supposed to stop at, and skipped the number 80. The third test conducted was the walk and turn test. Officer Bush demonstrated and explained that defendant was to take nine heel-to-toe steps away from his patrol car, turn, and take an additional nine heel-to-toe steps back to successfully complete the test. Officer Bush used his flashlight to illuminate defendant's feet and the path where defendant was expected to complete the test. During her performance of this test, defendant staggered and continually put her feet out for balance instead of walking heel-to-toe as instructed. When defendant tripped while taking only the first step of the test, Officer Bush decided to terminate the test for her safety.*fn2
During this time, Officer Bush also observed that defendant's eyes were watery, her face flushed, her hair mussed, her clothes dirty and disheveled, and her emotions "erratic," fluctuating between crying and cursing on the one hand, and polite and calm on the other. He also noticed defendant staggering while walking. At the conclusion of field sobriety testing, Officer Bush arrested defendant and transported her to police headquarters.
Upon arrival at 8:05 p.m., Officer Bush brought defendant into the interrogation room, removed her handcuffs, and began twenty minutes of observation for an accurate Alcotest reading. During this entire observation period, Officer Bush and Alcotest Officer Albert Chibookian monitored defendant. Officer Chibookian observed that defendant's eyes were bloodshot and that her speech was slurred.
According to Officer Bush, while at the Jefferson police station, defendant began exhibiting more bizarre behavior. After reiterating she was a dancer at Smiles, she proceeded to demonstrate her skills by climbing up on a desk and rocking her pelvic area back and forth in a sexual manner. When she started gyrating, the officers removed her from the top of the desk.*fn3
In the process of filling out the Breathalyzer Question/Answer Form, the officers advised defendant of her Miranda*fn4 rights, then asked her how many drinks she had consumed that day. Defendant responded that she had two Southern Comfort and lime drinks at Smiles, one at 11:00 a.m. and the second at 2:00 p.m. After it was determined that the Jefferson Police Department's Alcotest machine had malfunctioned and could not be used, Officers Bush and Chibookian transported her to the Sparta Police Department, where there was another Alcotest machine.
At Sparta police headquarters, Officers Bush and Chibookian were joined by a Sparta police officer to monitor defendant for a new twenty-minute observation period. During this observation period, Officers Bush and Chibookian observed defendant straddle the chair she was sitting on and start gyrating her hips. She volunteered that she was a stripper for a living and made about $1,000 a week in cash. She also told ...