On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 53-09-P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and LeWinn.
James R. Cooper was convicted in the Bedminster Municipal Court, and again in the Law Division, of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. On the DWI conviction, the Law Division judge issued a written decision on October 18, 2010, and imposed the following sentence: $306 fine, $50 VCCB, $200 DWI surcharge, $75 SNSF, a seven-month suspension of driver's license, and twelve hours participation in an Intoxicated Drivers Resource Center. The driver's license suspension was stayed pending appeal.*fn1 We affirm.
The State's theory was that defendant was driving under the combined influence of alcohol and a controlled dangerous substance (CDS). Defendant moved in the municipal court to suppress evidence. This motion was denied.
Defendant also moved in the municipal court, pursuant to Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), to preclude the State from introducing the laboratory certificate as evidence in lieu of the testimony from a chemist to prove the quantity, composition and quality of any CDS detected in defendant's bloodstream after the arrest. The municipal judge denied this motion as well.
The facts are largely undisputed. Bedminister Township Police Officer Thomas Valente testified that around 7:30 p.m., on September 11, 2009, he was traveling northbound on Route 206 when he saw defendant's vehicle approach from the right and "break the plain of the intersection" as it came to a stop. The vehicle, a 1995 Ford, had approached a traffic signal and stopped quickly. Its front end protruded into the Route 206/Lamington Road intersection. Officer Valente pulled in behind the vehicle and defendant backed it out of the intersection. When the light turned green, defendant continued across Route 206. Valente activated his overhead lights and stopped the vehicle.
Valente asked defendant for his driver's license, registration and insurance card. These were in order, but Valente saw that defendant's hands were slow and fumbling while retrieving the items from the glove box. Valente asked defendant to perform sobriety tests. Defendant was able to perform the alphabet and numbers test successfully. However, he had some difficulty completing the finger dexterity test and failed the walk and turn test. Valente noticed that defendant spoke with slurred speech and had watery and bloodshot eyes with constricted pupils.
Bedminster Police Sergeant Kyle Pirog testified that he assisted Valente at the scene. At Valente's request, he performed a horizontal gaze nystagmus*fn2 (HGN) test. He also observed that defendant's breath smelled of alcohol; his eyes were bloodshot and watery; his eyelids droopy; and pupils constricted. He also concluded that defendant was under the influence of alcohol.
Bedminster Township Police Officer John A. Dapkins, Jr., testified as a Drug Recognition Expert. He had conducted an eye examination looking for horizontal, vertical and resting nystagmus. Dapkins observed only horizontal nystagmus. He also noted the following:
The subject's pupil size is actually in a normal range. Which again is consistent with what you will find with a [central nervous system] CNS depressant category. That's another check-off for that category.
Dapkins opined that based upon his assessment, defendant was under the influence of a CNS depressant as well as alcohol. On cross-examination, Officer Dapkins noted that he was "110% positive" that defendant was not under the influence of ...