On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 2A2010K23.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2011
Before Judges Cuff and Waugh.
Defendant John E. Hennessy appeals his conviction, following a conditional guilty plea, for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50.
We discern the following facts and procedural history from the record on appeal.
Shortly before midnight on April 29, 2009, Readington Township Police Officer Gregory Wester was patrolling Route 523 in Readington. He observed a black Ford Explorer drift over both the fog line and the double yellow line. There was between one-eighth and one-sixteenth of a mile between those two incidents. Wester observed the vehicle cross marked lines three or four additional times. He then activated his overhead lights to stop the vehicle. The vehicle pulled over promptly after Wester's emergency lights came on. The distance between the first observation and the stop was approximately one-and-one-half miles.
When Wester activated the overhead lights, the video recorder in his vehicle was also activated. He testified that he did not manually turn the recorder on earlier because he did not want to divert his attention from the roadway. Wester wanted to keep his eyes on the road and his hands on the steering wheel because there were several curves and changes of elevation on that part of the road, which he described as "twisty," "narrow," and "dark." Wester conceded that it was standard operating procedure to turn the video recorder on if there was an observation of erratic driving.
When Wester approached the vehicle, he observed the driver, who was identified as Hennessy. Wester testified that Hennessy's "eyes were bloodshot and watery and his face was flushed." He also detected the "odor of alcohol emitting from inside the vehicle." However, Hennessy had no difficulty producing his driving credentials and his speech was not slurred. At some point, Hennessy told Wester that he had consumed three glasses of wine over approximately four hours while attending a Phillies game.
Wester directed Hennessy to get out of the vehicle, which he was able to do without difficulty. Wester smelled the odor of alcohol directly from Hennessy after he had gotten out of his vehicle.
Wester administered three field sobriety tests. The first, known as the Horizontal Gaze Nystagmus (HGN) test, is not admissible in New Jersey courts, State v. Doriguzzi, 334 N.J. Super. 530, 533 (App. Div. 2000), and was not considered by either the municipal court judge or the Law Division judge. According to Wester's testimony, Hennessy failed the one-leg-stand test and the walk-and-turn test. Hennessy also refused to complete those tests after his initial failure in each, based upon what he maintained was a physical disability. Wester did not attempt any additional, non-physical tests.
Based upon his observations of Hennessy's driving, the odor of alcohol, the bloodshot and watery eyes, the flushed face, the failed field sobriety tests, and the admission to having consumed alcohol, Wester placed Hennessy under ...