On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2009-042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Grall.
Defendant David Schlossman was convicted in Millburn Municipal Court of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and failing to exhibit required credentials, N.J.S.A.
This is a summary of the State's proofs. Millburn Township Officer Lorenzo Graham testified that during the early morning hours of November 15, 2008, he was traveling on Parsonage Hill Road. He noticed a tow truck preparing to remove a Mercedes, which had struck a utility pole on the eastbound side of the road. It was a cool night. There was a light drizzle, and the road was wet.
As Graham approached the scene of the accident, he saw defendant standing next to the Mercedes. Based on the position of the vehicle, it appeared to Graham that defendant was traveling westbound, crossed the middle lane, and struck the utility pole.
Graham spoke to defendant. In doing so, Graham noticed that defendant's breath smelled of alcohol, his speech was slurred, and his eyes were watery and red. In addition, defendant's clothes were "a little bit disheveled." Defendant stated to Graham that the accident occurred because his vehicle slipped on wet leaves. However, Graham saw no leaves on the side of the road that defendant was traversing.
Defendant admitted that the accident occurred as he was driving home from a tavern, where he had a few martinis.
Because Graham suspected that defendant was intoxicated, he administered field sobriety tests, specifically, the one-legged standing test, the walk-and-turn test and the horizontal gaze nystagmus (HGN) test. Defendant was unable to perform these tests successfully.
At trial, a video from Graham's police car dashboard camera was played. It captured the field sobriety tests. Graham placed defendant under arrest and took him to the police station.
Millburn Township Officer Gilbert Tavares conducted a breathalyzer test around 5:00 a.m., which defendant did not pass. Tavares testified that at the time of the test, defendant's eyes were bloodshot and watery, his clothes were "messed up", and he spoke and moved slowly. Tavares could smell alcohol on defendant's breath.
Herbert Leckie testified as an expert witness for the defense. He asserted that according to the curriculum developed by the National Highway Traffic Safety Administration (NHTSA), defendant should have been instructed to look down at his feet as he executed the walk-and-turn test. Leckie also testified that the NHTSA standards require that the field sobriety tests be conducted on a flat, non-slippery and dry surface in order to be reliable. Leckie opined that the conditions present when the field sobriety tests were administered to defendant could have diminished their reliability. He also testified about deficiencies in the administration of and equipment used for the breathalyzer test.
After a trial de novo, based on the trial record, Judge Ramona Santiago found defendant guilty of both charges. She did not rely on the results of a breathalyzer test administered to defendant, but based her decision on the observation of two police witnesses. She imposed the same sanctions as the municipal court, i.e., payment of a $400 fine; $33 court costs; $75 SNSF assessment; a $50 VCCB penalty; and a $200 DWI surcharge. The judge also imposed completion of twelve hours at an Intoxicated Driver Resource Center and a ...