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State of New Jersey v. Gerard L. Mcginn

June 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERARD L. MCGINN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 04-03-2010.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 24, 2011 -- Decided

Before Judges Yannotti, Espinosa and Skillman.

Defendant Gerard L. McGinn appeals from an order of the Law Division dated October 8, 2010, which denied his motion to suppress the results of an Alcotest and affirmed his conviction for operating a motor vehicle under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4-50(a), and failing to signal before turning, contrary to N.J.S.A. 39:4-126. We affirm.

I. Summonses were issued to defendant for driving under the influence of alcohol or drugs, contrary to N.J.S.A. 39:4-50; speeding, contrary to N.J.S.A. 39:4-98; and failing to signal when turning, contrary to N.J.S.A. 39:4-126. Thereafter, defendant filed a motion in the municipal court to suppress the results of the Alcotest. The municipal court conducted a hearing on the motion.

At the hearing, Sergeant Shawn Austin (Austin) of the Cape May Police Department (CMPD) testified that around 2:00 a.m. on May 3, 2009, he was stationed in a marked patrol vehicle on Beach Drive in Cape May. Austin observed a black Mercedes, which was later identified as defendant's car, driving in his direction "at a high rate of speed." Austin turned on his radar, which indicated that the vehicle was going forty-one miles per hour.

Austin activated his lights and turned around to follow the car. He saw the vehicle "make a wide left-hand turn onto Madison Avenue" without signaling. The vehicle moved into the oncoming lane while making its turn. The vehicle then made a right-hand turn onto New Jersey Avenue, but signaled before making the turn. Austin followed the car and observed it turn into a driveway on New Jersey Avenue.

Austin parked his vehicle and saw a passenger stumble out of the car. Defendant was the driver. He exited the car from the left. Austin approached defendant and requested his driver's license and registration. Defendant complied but Austin testified that it took defendant "some time" to get his license out of his pocket and he stared at his registration for "some time" before handing it over.

According to Austin's police report, defendant was "swaying," "sagging," "grasping for support," and "continually leaning for balance[.]" His eyes were "bloodshot" and "watery," his face was "flushed" and his feet were "wide apart for balance[.]" Austin observed the odor of alcohol coming from defendant's mouth and asked defendant whether he had been drinking. Defendant said that he drank earlier in the day, but did not state how much alcohol he had consumed.

Officer Walters of the CMPD arrived on the scene. Austin asked defendant to step to the rear of his car, went to his patrol car to retrieve the audio recorder and returned to administer certain psychophysical tests, including the alphabet test, the count-backward test, the one-legged stand test and the walk and turn test.

Austin asked defendant to recite the alphabet from A to Z slowly and without singing. Defendant recited the alphabet twice. The first time, he missed the letter N and repeated certain letters. The second time, Austin could not understand the last few letters of the alphabet, even though he was within one or two feet of defendant. When Austin asked defendant to count backward from seventy-seven to forty-nine, defendant missed numbers sixty-eight and fifty-six, and counted down to forty-two instead of stopping at forty-nine.

Next, Austin explained and demonstrated the one-legged stand test, which required that defendant keep his arms at his sides, lift his right or left leg six to ten inches from the ground, and count from one to thirty in thousands. When defendant first attempted to perform the test, he raised his arms to maintain his balance, failed to count in thousands as instructed, and put his foot down on the ground. His second attempt produced similar results.

Austin then explained and demonstrated the walk and turn test, which required defendant to face the patrol car and walk forward nine steps, placing his heel directly in front of his toe. When defendant tried to perform this test, he did not place his heels directly ...


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