On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 28-09-R-T13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Following a trial de novo on the record created in the Hillsborough Township Municipal Court, the Law Division judge found defendant guilty of refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. On appeal, defendant contends the State failed to establish with proof beyond a reasonable doubt that there was probable cause to believe she was operating her motor vehicle under the influence. As a consequence, there was no basis to request that she submit to a breathalyzer test and, consequently, her refusal conviction must be reversed. We disagree and therefore affirm the judgment of conviction.
The incident leading to defendant's arrest occurred shortly after midnight on January 1, 2009. At that time, Hillsborough Police Officer Joseph Paschall stopped defendant for speeding. Following a roadside investigation that included another Hillsborough police officer, Kevin Kearney, defendant was placed under arrest and transported to police headquarters where she refused to submit to a breathalyzer test. In addition to the refusal offense, defendant was also charged with driving while under the influence (DWI), N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. She subsequently pled not guilty to all charges.
On January 9, defendant's attorney requested copies of any and all discovery materials. Some discovery was provided approximately one month later. Defense counsel, upon receipt of that discovery, sought additional discovery and confirmation, as had been earlier represented by the municipal prosecutor, that neither patrol vehicle at the scene of defendant's arrest was equipped with a mobile video recorder (MVR). During a March 9 pretrial conference, however, the municipal prosecutor, for the first time, advised defense counsel that Officer Kearney's vehicle was equipped with an MVR but it was not working the night of defendant's arrest. Further, he indicated that Officer Paschall's vehicle was also equipped with an MVR, which was working properly that night, but for reasons unknown to him at the time, the incident was either not recorded or, if recorded, the footage was not preserved.
At trial, during Officer Paschall's testimony, it was stipulated that the weather conditions were cold, approximately nineteen degrees, with sustained winds of 20 m.p.h. and gusts to 30 m.p.h. Officer Paschall testified that he observed defendant traveling at what appeared to be a high rate of speed southbound on Route 206 and activated his radar, clocking defendant's vehicle as traveling 56 m.p.h. in a 45 m.p.h. speed zone. After defendant's vehicle passed him, he made a U-turn and proceeded to travel directly behind defendant's vehicle, which stopped for a red traffic signal at an intersection. When the light turned green, the officer activated his lights, signaling defendant to pull over. Other than the initial speeding that he observed, the officer did not witness any erratic driving as he followed defendant.
Officer Paschall approached the driver's side of defendant's vehicle and asked for her credentials, which she did not have because she normally kept her driver's license in her privately owned vehicle, which was being repaired. At the time, she was operating a rental car and presented the paperwork for that vehicle. Officer Paschall detected an odor of alcohol emanating from her breath. He asked defendant whether she had been drinking and she told him no. The officer went to his patrol car and contacted Officer Kearney, who was assigned to DWI enforcement that evening.
Officer Paschall then returned to defendant's vehicle and noticed that she had a piece of candy in her mouth. When he first approached defendant's vehicle and engaged in his initial questioning, she did not have any candy in her mouth. Officer Paschall suspected defendant of attempting to mask the odor of alcohol and conveyed this information to Officer Kearney, who arrived shortly thereafter.
Under cross-examination, Officer Paschall acknowledged that under General Order 2005-59 (General Order), which sets forth the standard operating procedures for the MVR, arrests involving DWI are to be recorded, and that in all likelihood, defendant's stop and subsequent arrest were recorded on the MVR attached to his patrol car. He also acknowledged that the General Order directs that the MVR footage of the incident is to be logged in and then locked. He did not follow this protocol because he believed he was not responsible for preserving the evidence since he "wasn't the arresting [o]fficer" and he "wasn't [the one] putting her through the field sobriety tests."
Officer Kearney, an eleven-year veteran of the Hillsborough Police Department, testified that when he approached defendant's vehicle, he asked her whether she had been drinking, and defendant responded that she had not been drinking. He observed that defendant had candy in her mouth and requested that she remove it. Defendant refused to remove the candy, became uncooperative, and initially refused to exit her vehicle. She told him that she was fine to drive, the situation was ridiculous, and questioned why he would not let her just leave. Officer Kearney indicated that "[t]he one thing [he] did notice was that her eyes were red and watery." He did not detect an odor of alcohol.
Defendant eventually exited her vehicle. She was wearing black pants, a red sweater, scarf, a long, heavy, knee-length, wool coat that was fitted at the top but "belled-out" at the bottom, and three or four-inch high-heeled boots. Officer Kearney testified that defendant had no difficulty exiting the vehicle or walking to the area where he planned to administer field sobriety tests. He administered three tests, which defendant failed to perform satisfactorily. The first test was the horizontal gaze nystagmus test (HGN), which measures involuntary eye spasm. See State v. Maida, 332 N.J. Super. 564, 567-68 n.1 (Law Div. 2000). He explained that "neither her right or left eye was able to smoothly pursue the stimulus showing nystagmus as it[']s going across laterally" and that she also showed nystagmus "in both eyes when held at maximum side deviation[,] which is a wobbling on the side."
The officer next administered the "walk and turn" test. He instructed her to take nine steps forward, touching her heel to her toe, and then turn and repeat, taking nine steps back. According to Officer Kearney, defendant did not walk heel-totoe, "side[-]stepped to the right on the [seventh] step and then immediately started to take her small steps to turn around and go back, not completing the [nine] steps forward."
The last test administered was the one-leg stand. Officer Kearney testified that defendant did not keep her foot raised until told to place it down, as he had instructed her to do. During this test, defendant argued with him and swayed at one point. After her second attempt to perform the test, she became "wobbly" and Officer Kearney instructed her to stop. He testified that "[i]t was at that time I . . . determined that she was going to be placed under arrest and brought back to Headquarters for the breathalyzer." He subsequently charged defendant with DWI, N.J.S.A. 39:4-50, and refusal to take the breathalyzer test, N.J.S.A. 39:4-50.2.
Defendant testified on her own behalf. She admitted that she had been drinking. She indicated that she had two or three sips of champagne just after midnight. She also admitted to having candy in her mouth. She first testified that she did not remember when she put the candy in her mouth but then immediately stated that it was "[b]efore, when I was at the party." She also testified that she had the candy in her mouth through the entire time of the stop until Officer Kearney arrived. Additionally, she admitted that she initially refused to exit her vehicle when requested to do so. Further, in response to the question whether she could think of "any reason why the two . . . [o]fficers would intentionally say they smelled alcohol on [her,]" defendant stated that ...