On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Yannotti and Espinosa.
Defendant appeals from his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a and N.J.S.A. 39:4-50.2; and possessing an open container of alcohol in an automobile, N.J.S.A. 39:4-51b. We reverse the refusal conviction and affirm the remaining convictions.
The essential facts are set forth in detail in the oral opinion of the Law Division judge and need not be repeated here. We note the following salient facts:
At approximately 12:20 a.m. on November 15, 2009, Harding Township Police Officer Michael Gromek stopped defendant's SUV after observing it travel over the center lines of the road for several seconds and later straddle the center lines for about two-tenths of a mile. When Officer Gromek approached the vehicle, defendant opened the wrong car window at first and slurred his words in conversation with the officer.
Officer Gromek observed that defendant's eyes were "very" watery, "quite" bloodshot, and his eyelids were "very" droopy. He detected an odor of alcohol coming from the car. The officer asked defendant to perform certain tests while he was still in his automobile, including reciting the alphabet from the letter "E" to the letter "P" without singing. Officer Gromek also asked defendant to count backwards, starting with number forty-five (45) and ending with number twenty-three (23). Defendant failed to correctly perform either task and, in each case, spoke very slowly, slurring his words. After defendant was unable to satisfactorily perform a finger dexterity test, Officer Gromek asked defendant to exit his vehicle to perform field sobriety tests.
Defendant grasped the driver's side of the vehicle to maintain his balance and, when instructed to walk between his vehicle and the officer's, he swayed, staggered and kept his feet wide apart for balance. Officer Gromek instructed defendant on how to perform two field sobriety tests, the oneleg stand test and the walk-and-turn test. Officer Gromek asked defendant if he understood the instructions and defendant replied that he did. In each case, defendant was unable to perform the test satisfactorily, manifesting difficulty in maintaining his balance in the one-leg stand test and in following instructions.
Defendant repeatedly denied drinking any alcohol that evening. However, when he gave permission to Officer Gromek to move his vehicle, defendant told him there was an open bottle of alcohol on the front passenger floor. Officer Gromek observed an open bottle of Chandon California Brut Classic champagne that was almost empty. Officer Gromek smelled the bottle and believed it to be champagne.
Defendant was placed under arrest and transported back to police headquarters. Officer Gromek smelled a strong odor of an alcoholic beverage from defendant.
Defendant was taken to the processing room where Officer Gromek began a twenty-minute observation of defendant. Officer Gromek read the Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e), revised effective January 21, 2004 (the January 2004 Standard Statement), and asked defendant to submit samples of his breath. Defendant responded by stating, in slurred speech, "I don't know what to do." The officer proceeded to read defendant the additional statement on the bottom of the form and again asked defendant if he would submit samples of his breath. Defendant again stated, "I don't know what to do."
Officer Gromek advised defendant of his Miranda warnings.*fn1
Defendant replied, "I don't know what to do[,]" and refused to sign a copy of the Miranda form.
Officer Gromek then prepared a drinking/driving questionnaire with defendant. Defendant stated he suffered from anxiety and depression, that he was taking several prescription medications, including Ambien, and that he had last taken Ambien at 11:30 p.m., shortly before he left his house. When asked if he needed medical attention, defendant declined an ambulance or doctor. Although Officer Gromek testified that defendant continually slurred his words, he stated defendant did not ...