On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 69-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Grall and Alvarez.
Following a trial de novo in the Law Division on appeal from convictions entered by the Hamilton Township Municipal Court, Delores Y. Randall was convicted of driving while intoxicated, N.J.S.A. 39:4-50 (DWI); refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2; and failing to maintain a single lane of travel, N.J.S.A. 39:4-88. Previously, defendant had been tried on criminal charges arising from the traffic stop and found guilty of aggravated assault against the arresting officer, N.J.S.A. 2C:12-1b(5)(a), and obstructing the administration of law, N.J.S.A. 2C:29-1a.*fn1
Defendant appeals from convictions for the motor vehicle violations, seeking reversal on three grounds: violation of her right to a speedy trial; error in the municipal court's credibility findings; and inadequacy of the evidence supporting her convictions for violating N.J.S.A. 39:4-50 and 39:4-50.2. We affirm.
At about 5:00 a.m. on September 24, 2005, defendant was driving from Atlantic City to her home in Maryland on the Atlantic City Expressway. Trooper Roger Nicholson heard a report of a car being driven erratically that included a description of the car and its Maryland license plate number. The trooper waited for the car to pass and followed it. Twice, he saw the car cross over the center line and the shoulder line to the right of the lane. According to defendant, she was using her cell phone, which was not illegal in 2005, and did not know that the trooper was following her until she saw the flashing lights. She stopped on the side of the road. By activating the lights, the trooper had also turned on the car's video-audio system. Consequently, the actions and words of defendant and the trooper that were within the range of the camera and its sound recording device were recorded.*fn2
When the trooper reached the car, he detected the odor of alcohol. Defendant told him she was coming from a casino, where she had a couple of drinks. The trooper directed defendant to end her phone call, produce her license and registration, and get out of the car. She did not get out of the car on the first request, but she attempted to perform field sobriety tests as directed. She was unable to recite the alphabet from the letter B to the letter Y; on her third attempt, she recited the letter letters R, S and T before reciting the letter Q. Defendant was also unable to complete the "one-leg-stand test" and during the "walk-and-turn test," she used her arms to balance herself.*fn3 She had told the trooper that she had a problem with one of her legs but did not say which one.
Based on all of his observations, the trooper told defendant she was under arrest and handcuffed her. Defendant then struggled with the trooper, kicking and grabbing him. She also demanded he call a female officer and thwarted his efforts to place her in the troop car by alternating between resisting and going limp. Defendant was also yelling, telling the trooper to kill her. He used Mace to subdue her and called for assistance when that effort failed. With the help of other officers, defendant was placed in the troop car.
When the trooper and defendant reached the station, she urged him to shoot her and attempted to run away. Sergeant Mertis had been monitoring the radio transmissions, and assisted the arresting trooper in bringing defendant into the station and placing her in a cell. He recalled helping the trooper but his recollection was "very vague." Although he did not remember any "specifics," he explained that the arresting officer generally handles a case from the arrest until trial and said he had not assigned another officer to this case.
According to the trooper, while defendant was in the cell, he read her the standard form to advise her of the consequences of refusing to submit to a breath test. He did that from outside the cell and through its glass door. By the trooper's account he asked defendant to take the test twice, and both times she responded by cursing at him. At that point he wrote a ticket for the motor vehicle violations he had observed and refusal to submit to a breath test. The trooper did not know whether defendant was suffering from a physical, mental or emotional condition "consistent with her behavior" on the morning of September 25, 2005.
By defendant's account, she did not see the arresting officer after he took her to the cell. He never asked her to take a breath test or read her any information about it.
Defendant also testified about her behavior following the traffic stop. She described it as "very irrational," "not appropriate" and "disorderly." Explaining that the trooper had frightened her by leaning into her car when he asked for her credentials, she said she did not want to be arrested. She admitted she "lost it" but denied that she was intoxicated. She testified that she been in Atlantic City for a week before this incident and on the night before this incident she had two drinks with dinner, went to bed at 10:00 p.m. and got up at 4:00 a.m. to return to Maryland.
The municipal court considered the recording of the traffic stop and the subsequent events, found the trooper's testimony more credible than defendant's and determined that she was guilty of DWI, refusing a breath test and failing to maintain a lane. On the appeal to the Law Division, the judge reviewed the recording and the transcript, agreed with the ...