On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2010-036.
FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 17, 2012
Before Judges Parrillo and Alvarez.
Defendant Heriberto Valedon 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 4:10 a.m. on November 6, 2009, Officer Dean Berardi of the Montclair Police Department was dispatched to Valley Road on a report of a suspicious vehicle parked there for over an hour with its hazard lights on. Upon arrival, Berardi observed a red Acura parked facing north on Valley Road with keys in the ignition, engine running and hazard lights flashing. Valley Road is a relative busy thoroughfare where overnight parking is prohibited by Montclair ordinance.
Defendant was observed reclined in the driver's seat, apparently asleep and unresponsive. Debris was strewn inside the car, including on defendant's chest and lap. Concerned for defendant's safety, Berardi knocked on the window several times, but unable to rouse defendant, he opened the unlocked car door and shook defendant's shoulder. Defendant awoke, but was minimally responsive, unable to explain his presence in a running car parked illegally on the side of the road.
Defendant's speech was "slurred" and "mumbling[,]" and he smelled of alcohol. His eyes were bloodshot and glazed. Defendant's condition prompted Berardi to ask him if he had been drinking, to which defendant gave an incomprehensible response. Defendant eventually admitted he had been drinking a few beers, but also mentioned that he had been taking cold medicine, although no bottles were found inside or in the immediate vicinity of the vehicle. Defendant, who lived in a nearby town, denied having any friends or family in the area. Defendant also ignored Berardi's repeated request to turn off the ignition, prompting the officer to reach in and turn the vehicle off himself for safety reasons. Berardi noticed the car was warm when he touched it.
Suspecting that defendant was intoxicated, Berardi ordered him to exit the vehicle to perform two standard field sobriety tests - the walk and turn test and the one-leg stand test - which he proceeded to fail "pretty badly."*fn1 On the basis of his observations to this point, Berardi concluded that defendant was intoxicated. Upon his arrest, defendant was transported to police headquarters where he was administered an Alcotest exam, the results of which were suppressed in the municipal court because the State failed to produce certain documents relating to the device's calculation. Nevertheless, on May 11, 2010, the court found defendant guilty of DWI based on the police officer's observations of defendant:
I do find the State has established beyond a reasonable doubt that [defendant] did operate the vehicle to the place of rest, that he had consumed alcohol, that he was clearly under the influence of alcohol at the time he stopped, even though the operation took place sometime earlier. Now, so, because we have no Alcotest reading [defendant] is subject only to the penalty that's applicable under the first tier of [N.J.S.A.] 39:4-50.
Defendant was sentenced pursuant to N.J.S.A. 39:4-50(a)(2) as a second time offender to a two-year suspension of his driver's license, a $500 fine, a $200 DWI surcharge, two days jail time to be served at the Intoxicated Driver Resource Center program, thirty days of community service, and other costs and assessments.
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, finding the observational evidence alone sufficient to support the conviction. In so concluding, the judge noted "[t]here is nothing in the record to permit a reasonable inference that [defendant] did not drive his car while intoxicated to Valley Road, at which point, sometime prior to Berardi's arrival, [defendant] pulled over and passed out or fell asleep with his vehicle still running and with the hazard lights on."
On appeal, defendant raises the following issues:
I. THE COURT ERRED IN IGNORING THE FACT THAT THE STATE COULD NOT ESTABLISH WHEN THE APPELLANT DROVE HIS CAR SINCE THE ANONYMOUS CALLER PLACED HIM AT THE SCENE AT ...