On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2008-048.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Nugent and Kestin.
The opinion of the court was delivered by ASHRAFI, J.A.D.
Defendant Corey Misurella appeals from a judgment of conviction dated October 22, 2010, for driving while intoxicated (DWI), N.J.S.A. 39:4-50, after a trial de novo in the Superior Court. We affirm.
The relevant facts are that at 2:46 a.m. on September 23, 2007, State Police troopers were dispatched to the Garden State Parkway in East Orange to investigate a motor vehicle accident and to provide assistance. When they arrived, the troopers saw three damaged vehicles in the left and center lanes. Trooper Walsh testified at defendant's trial he believed a BMW had struck a black car that had stopped in the left lane of the Parkway, and then, a gray Honda driven by defendant had struck one of those cars.
The troopers observed a person lying in the shoulder of the roadway and other people standing or walking near the damaged cars. Defendant was "running around in the lanes and back and forth." Trooper Walsh made the following observations as he spoke to defendant about the accident:
There was an odor of an alcoholic beverage. His eyes were bloodshot. He was - - his demeanor seemed very excited. He used excessive profanity. He seemed nervous. He was inattentive to my questions. His eyes - - his attention was bouncing from one - -
He was . . . rambling on. He was, as I said, not answering direct questions initially, not - - when I would ask him questions he wasn't necessarily listening to what I was saying. After initially speaking with him we had asked him to sit on the embankment adjacent to the roadway. I had to ask him repeatedly to sit down, because he would get up and walk away from where we had told him to sit.
At one point he was running around the accident scene, literally running around the accident scene. I don't know what he was doing, but he was maybe conversing with other people who were there or his brother.
I'm not - - I don't recall what he was doing specifically. But that's the level of agitation or excitement that he displayed.
For safety reasons, the troopers did not conduct roadside sobriety testing. The scene of the accident was at a curve down a hill on the Parkway and rescue personnel were helping the injured and removing the vehicles. The troopers arrested defendant and the driver of the black vehicle and transported them in one police car to State Police barracks. According to Trooper Walsh, "the troop car smelled of the odor of a consumed alcoholic beverage." Breathalyzer testing shortly after 5:00 ...