On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 010-07-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and St. John.
Defendant, Jermaine Burns, appeals, pro se,*fn1 from a judgment of conviction, finding him guilty of refusal to submit a breath sample. N.J.S.A. 39:4-50.2 The court imposed a seven-month suspension of his driving privileges. N.J.S.A. 39:4-50.4(a). We affirm.
At the motion to suppress hearing, Officer Michael Koval of the Port Authority Police testified that while traveling westbound behind defendant's vehicle on the upper level of the George Washington Bridge, he observed defendant fail to maintain his lane, swaying from lane to lane and crossing over the lane dividing lines, causing other vehicles to move out of defendant's way. After stopping defendant's vehicle, Koval detected an odor of alcohol as he spoke to defendant while defendant remained in his car. Koval's observations of defendant included "bloodshot eyes; slurring; and hand movement slow, shaky- getting his driver's license out." Koval directed defendant to go to the rear of defendant's vehicle to perform field sobriety tests. Koval observed defendant to be unsteady, swaying from side to side, leaning on his car for support, as he walked to the rear. Defendant failed the walk-and-turn test and twice failed the finger dexterity test. At that point, defendant was placed under arrest for driving while intoxicated. Defendant testified, as explanation, that he is a diabetic and that all of the above physical manifestations were a result of that condition.
Defendant was charged in Fort Lee with driving while intoxicated, N.J.S.A. 39:4-50 (DWI); refusal to submit a breath sample, N.J.S.A. 39:4-50.2 (refusal statute); and careless driving, N.J.S.A. 39:4-97. He entered a conditional plea to refusal to submit a breath sample, subject to his right to appeal from the denial of his suppression motion. That right of appeal was explained to defendant by the municipal court judge as follows:
Now, the entry of a plea of guilty to refusing to take the breathalyzer test is a conditional plea, and that is - what that means is if you decide to appeal the earlier part of my case that there was no probable cause to stop the car or to request that you take the breathalyzer test, then, obviously, if there is no probable cause to stop you and ask you to take the test, then the plea of guilty to not taking the test, if a higher court judge decides that, that plea of guilty will be set aside. Do you understand that?
Upon the State's motion, the municipal court judge dismissed the careless driving and the DWI, based upon an independent blood test obtained by defendant.
Defendant appealed, contending, among other things, that the arresting officers did not have probable cause to stop him and to request that he submit to a breath test. Following a de novo hearing in the Law Division, the judge found defendant guilty of violating the refusal statute, but stayed the imposition of sentence pending the outcome of this appeal.
On appeal, defendant raises the following arguments:
1- THE CANADIAN AMPOULE TESTING CERTIFICATES ARE NOT SELF-AUTHENTICATING, AND THE STATE CANNOT MEET ITS BURDEN OF ESTABLISHING THE SCIENTIFIC RELIABILITY OF THE BREATHALYZER, THEREFORE, MR. BURNS CANNOT BE CHARGED WITH REFUSAL. 2- MR. BURNS MUST BE FOUND NOT GUILTY DE NOVO OF THE REFUSAL CHARGE BECAUSE THE STATE FAILED TO ESTABLISH THAT MR. BURNS WAS READ THE STANDARD STATEMENT AS MANDATED BY THE OFFICE OF THE ATTORNEY ...