On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5942.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2011
Before Judges Parrillo and Alvarez.
Defendant William Voll appeals from his driving while intoxicated (DWI) conviction, N.J.S.A. 39:4-50, in the municipal court, and again on appeal in the Law Division after a trial de novo. We affirm.
According to the State's proofs, at approximately 3:00 a.m. on August 1, 2009, defendant struck an SUV parked on Elmore Avenue in Elizabeth with such force to push it onto the sidewalk. The EMS and fire department were first on the scene, followed by police Officers Joseph Aliseo and Daniel Rivera. Defendant complained of chest and shoulder pain, but refused medical attention, had no visible signs of injury, and did not appear to be in discomfort.
Upon their arrival, Officers Aliseo and Rivera observed defendant standing unsteadily on the lawn, "swaying back and forth." As Aliseo approached, he detected a strong odor of alcohol on defendant's breath. When asked about the accident, defendant replied "what does it look like happened," or words to that effect. When questioned further by Aliseo, defendant admitted being the driver of the car with the front-end damage and that he was driving too far to the right to avoid hitting the parked SUV. Defendant also admitted drinking a few shots about one hour earlier. He then refused to submit to field sobriety tests.
Defendant was arrested, handcuffed, and placed in the patrol car. Upon arrival at police headquarters at 4:11 a.m., defendant became belligerent and began screaming and cursing. Officer Aliseo had to forcibly escort defendant into the building as he was resisting and continuing to scream and curse in the officer's face. Eventually, the officers were able to get defendant into the cell block. During processing, defendant remained calm for the most part. At 4:21 a.m., Sergeant Meola administered the Alcotest, gathering two samples from defendant.*fn1
At the close of evidence, the municipal court judge found defendant guilty of DWI, N.J.S.A. 39:4-50, reasoning:
We have the belligerent activity on the part of the defendant. . . . [T]he smell of alcohol, the swaying and the . . . [r]efusal to take the field test.
And coupled with his behavior and his attitude towards police officers, I'm satisfied that the State has shown beyond a reasonable doubt that the defendant was under the influence of alcohol, and I find him guilty.
As a third-time DWI offender, defendant was sentenced to six months in jail, a $1000 fine, a $200 surcharge, $33 court costs, a $50 VCCB penalty, and a $75 SNSF fee. Defendant's driving privileges were also suspended for ten years.
On a de novo review of the record, the Law Division judge adjudicated defendant guilty of DWI and imposed the same sentence as the municipal court. Specifically, the judge concluded:
What we have to consider is a number of pieces of evidence in this case. The time of day is certainly a factor, it's 3 a.m. Is it a strong factor? ...