On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal Nos. 07-09 and 11-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Fisher and Baxter.
Following a trial de novo in the Law Division, defendant Barbara Salkewicz appeals from her August 16, 2010 conviction on a charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50.
Defendant was sentenced as a second DWI offender, and the judge imposed a two-year drivers license suspension, thirty days of community service, forty-eight hours in the Intoxicated Drivers Resource Center, a two-year revocation of defendant's motor vehicle registration, and appropriate fines and penalties. We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance on the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt. For reasons that we shall explain, the judge lacked the authority to additionally conclude that the police satisfied all of the Alcotest requirements imposed by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). We affirm defendant's conviction, based solely on her erratic driving and poor performance on the field sobriety tests.
On the night of October 3, 2008, Manchester Township police officer Adam Emmons was on patrol on Route 70 in the area of Buckingham Drive, when he noticed a blue Saab with unilluminated license plates. Officer Emmons continued to observe the vehicle, which was being operated by defendant, as the vehicle made a right turn onto County Road 571 eastbound.
The officer described defendant's erratic operation of the vehicle as follows:
When [the vehicle] made the right turn, it . . . made a wide right turn, it went into the left-hand lane, and then went to the right-hand lane without using a turn signal. While traveling in the right-hand lane eastbound, the vehicle turned back into the left-hand lane without using a turn signal. And while in the left-hand lane, the vehicle began to drive over the center line. . . . [T]he driver's side front [and] rear tire[s] crossed the center line and was in the westbound lane of 571 with half the vehicle.
After observing defendant's vehicle swerving, making improper lane changes, and crossing over the center line, Officer Emmons activated his overhead lights and effectuated a motor vehicle stop. He administered a field sobriety test. In light of his observations of defendant, and her poor performance on the roadside sobriety tests, Officer Emmons arrested defendant for DWI and transported her to police headquarters where Sergeant James Delane administered the Alcotest examination. Defendant's blood-alcohol content (BAC) as shown on the Alcotest was .15%.
Defendant thereafter filed a motion to suppress the Alcotest results, based on a claim that Sergeant Delane failed to continuously visually observe her for the twenty-minute period required by Chun, supra, 194 N.J. at 79. Defendant's suppression motion was heard before the Manchester Township Municipal Court on February 4, 2009. Because the suppression motion was confined to the issue of the twenty-minute Chun observation period, the State limited the testimony of Officer Emmons and Sergeant Delane accordingly. At the conclusion of the hearing, the municipal court judge concluded that Sergeant Delane was able to, and did, in fact, observe defendant for at least twenty minutes prior to the administration of the first Alcotest, and the judge consequently denied the suppression motion.
As soon as the judge denied her suppression motion, defendant entered a conditional guilty plea on the basis of a per se violation of N.J.S.A. 39:4-50, stemming from the Alcotest reading of .15%. Defendant's conditional guilty plea specifically reserved her right to file an appeal in the Law Division challenging the municipal court judge's determination that Sergeant Delane had waited the twenty minutes required by Chun before administering the Alcotest. The judge imposed sentence, but agreed to stay the sentence pending the Law Division's review of the denial of defendant's motion to suppress the Alcotest results.
On October 2, 2009, rather reach a decision on the suppression motion, the Law Division ordered the matter remanded to the municipal court, concluding that defendant's appeal to the Law Division was interlocutory in light of the municipal court judge's failure to have addressed the question of whether defendant's guilt could also be established based upon defendant's erratic driving and poor performance on the field sobriety test. The judge's October 2, 2009 order "remanded [the matter] back to the Manchester Township Municipal Court for disposition on the observational prong of the [DWI] charge[.]"
On March 5, 2010, before the municipal court, the municipal prosecutor reversed course and conceded that the State could not prove the State v. Chun "20-minute issue" beyond a reasonable doubt. The municipal prosecutor explained that the State would be proceeding solely on the basis of the observational evidence, namely, defendant's erratic driving and her performance on the field sobriety tests. At that point, the parties reached a stipulation that Officer Emmons had probable cause to stop defendant's vehicle; and that if the officer were to testify before the municipal court, he would testify that based upon his experience and training, he believed defendant was driving ...