March 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM O'DRISCOLL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appear confused in any way. He appeared to understand all of the officer's questions and carried on a normal conversation.
The only defense witness was Gary Lage, Ph.D., who testified as an expert in the fields of toxicology and pharmacology. Dr. Lage's understanding of the facts was derived from reading the arrest report, the investigation report, the drinking/driving questionnaire and the drinking/driving report. Dr. Lage did not speak to defendant and did not know if defendant had consumed any alcohol or other medications that evening. He did know there was an odor of an alcoholic beverage on the defendant's breath. However, based upon defendant's statement that he had taken Ambien and the description of his behavior, Dr. Lage opined that defendant "was operating the motor vehicle at the time that he had taken [Ambien], that it was an involuntary action, that he had no knowledge at the time, which would be totally consistent with the pharmacology and toxicology of this medication." Dr. Lage acknowledged that the FDA has a label on Ambien warning against consuming alcohol or other drugs with Ambien. He testified that "there is no doubt from a pharmacological standpoint that . . . any alcohol, even a very, very small alcohol consumption would exacerbate the effects . . . of the [Ambien]."
In an extensive oral opinion, the municipal court judge found defendant guilty of DWI, refusal to submit to a breathalyzer, possessing an open container and failure to keep to the right, N.J.S.A. 39:4-82. A charge of reckless driving was dismissed. Defendant was sentenced on the DWI charge to three months' loss of his driver's license, twelve hours in I.D.R.C., six months' use of an ignition interlock device, $306 fine, $33 court costs, $50 V.C.C.B., $75 S.N.F. and $200 DWI surcharge. On the refusal, defendant was sentenced to seven months' loss of his driver's license consecutive to the three months on the DWI charge, $306 fine, $33 court costs and $100 DWI surcharge. The suspension of defendant's driving privileges was stayed pending appeal. On the open container charge, defendant was fined $206 and $33 court costs. Defendant was fined $106 and $33 court costs on the failure to keep right charge.
Defendant appealed his convictions for DWI, refusal and possessing an open container. Following a trial de novo on the record, the Law Division found defendant guilty on all three charges. The court sentenced defendant to the same periods of license suspension but ordered that they be concurrent. The court also imposed the same fines, penalties and court costs as the municipal court.
Defendant presents the following issues in this appeal:
DR. LAGE'S EXPERT TESTIMONY RAISED REASONABLE DOUBT ON THE ISSUE OF MR. O'DRISCOLL'S CONSCIOUSNESS, AND THE LAW DIVISION JUDGE FAILED TO GIVE DUE DEFERENCE TO THE MUNICIPAL COURT JUDGE'S DETERMINATION ON LAGE'S CREDIBILITY; AS A MATTER OF LAW, MR. O'DRISCOLL WAS ENTITLED TO ACQUITTAL ON ALL OF THE CHARGES.
A. APPELLATE DIVISION STANDARD OF REVIEW
B. THE UNCONSCIOUSNESS (SLEEPWALKING) DEFENSE IS WELL ESTABLISHED IN LAW; IT WAS THE STATE'S BURDEN TO DISPROVE THIS DEFENSE BEYOND A REASONABLE DOUBT
C. DR. LAGE'S CREDIBILITY AND THE BURDEN OF PROOF
D. WHEN REASONABLE DOUBT IS
ESTABLISHED, THE DEFENDANT IS ENTITLED TO ACQUITTAL; THE LOWER COURT IMPROPERLY SHIFTED THE BURDEN TO THE DEFENDANT
THE POLICE DID NOT READ THE VALID N.J.S.A. 39:4-50.2(e) STATEMENT TO MR. O'DRISCOLL; SINCE THE REFUSAL PENALTIES WERE NOT DELINEATED, THE REFUSAL CHARGE SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW
THE STATE DID NOT EVEN PRODUCE THE ALLEGED BOTTLE, LET ALONE DID THE STATE PRODUCE EVIDENCE OF ITS CONTENTS; SINCE THE STATE DID NOT PROVE THE ELEMENTS OF N.J.S.A. 39:4-51b, THE OPEN-CONTAINER CHARGE SHOULD HAVE BEEN DISMISSED
We review the action of the Law Division to determine whether its de novo findings "'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). When, as here, both the municipal court and the Superior Court enter "'concurrent judgments on purely factual issues,'" those findings should not be disturbed "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). We discern no such error here as to the DWI and open container convictions.
There were only two witnesses at the trial - Officer Gromek and Dr. Lage. As a result, Officer Gromek's testimony regarding the events was uncontested. The municipal court found him to be "an extremely credible witness[,]" a conclusion shared by the Law Division upon de novo review. Officer Gromek's description of defendant's physical appearance, slurred speech, the odor of alcohol, erratic driving and poor performance on sobriety tests all supported the conclusion that defendant was driving while No reasonable doubt was created by Dr. Lage's testimony. The municipal court judge acknowledged his credentials in the area of pharmacology and toxicology but explicitly rejected the factual basis for his opinion. While the court accepted the conclusion that defendant was under the influence of Ambien, the judge also found that defendant drank alcohol. The court found support for that conclusion in the officer's testimony that there was an odor of alcohol from defendant and from his vehicle and the recovery of the almost empty bottle of champagne. In evaluating the weight to be given to his testimony, the judge noted that Dr. Lage had "no idea if the defendant had been drinking any alcohol that evening" although he acknowledged that "even a small amount [of alcohol] would exacerbate the potential effects of Ambien." The judge further noted that Dr. Lage "indicated he cannot differentiate the difference [between] being under the influence of Ambien or . . . alcohol[.]"
The Law Division judge also noted the deficiencies in Dr. Lage's testimony and explicitly rejected his opinion:
I have to say that this Court does not put great weight or value on the testimony of the expert in this case. I just overall find that it's not believable and I reject it. I don't find that it is credible. The facts upon which it was based I find are insufficient in light of the totality of all of the facts and circumstances in the case.
We are satisfied that the Law Division's finding that defendant was operating a motor vehicle while under the influence of an intoxicating liquor was supported by sufficient credible evidence in the record.
Further, it was unrefuted that defendant told Officer Gromek that there was an open bottle of alcohol on the front passenger floor of his vehicle and that the officer recovered an open bottle of Chandon Brut Classic champagne that was almost empty from defendant's car. Defendant's argument that there was insufficient proof he possessed an open container of alcohol therefore lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We next turn to defendant's argument that his conviction for refusal must be reversed. To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a(a), the State must prove each of the following elements beyond a reasonable doubt:
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.
[State v. Marquez, 202 N.J. 485, 503 (2010).]
Defendant argues that the State failed to satisfy the third of these elements, specifically failing to inform him of the consequences of refusing to submit to the chemical breath test because the arresting officer read the January 2004 Standard Statement as opposed to the version of that Statement revised as of April 26, 2004 (the April 2004 Standard Statement). Although we do not agree that some deviation from the most current standard statement will require a reversal in every case, we are constrained to agree that a reversal is required under the circumstances here.
N.J.S.A. 39:4-50.2(a), the "Implied Consent Law," provides that any person who operates a motor vehicle on a public or quasi-public road in New Jersey "shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of the alcohol in his blood[.]" Yet, the statute also requires "that the taking of samples is made in accordance with the provisions of this act[.]" Ibid. (emphasis added). Subparagraph (e) requires the police officer to "inform the person arrested of the consequences of refusing to submit to such test . . . [and a] standard statement, prepared by the chief administrator,*fn2 shall be read by the police officer to the person under arrest."
The "'principal purpose'" of this mandate "'is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge.'" Marquez, supra, 202 N.J. at 508 (quoting State v. Badessa, 185 N.J. 303, 314 (2005)); see also State v. Widmaier, 157 N.J. 475, 489 (1999) (by requiring that a standard statement be read, the Legislature "provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent"); State v. Wright, 107 N.J. 488, 499 (1987).
The difference between the statement read to defendant and the revised statement in effect at the time of his arrest lies in the minimum license revocation period and in the minimum and maximum fines that could be imposed. The January 2004 Standard Statement read to defendant stated that if convicted of refusal, your license to operate a motor vehicle will be revoked by the court for a period of no less than six months and no more than 20 years. The Court will also fine you a sum of no less than $250 and no more than $1,000 for your refusal conviction. [(Emphasis added).]
The April 2004 Standard Statement reflected amendments to the statute, stating that, if convicted of refusal, your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months and no more than 20 years. The Court will also fine you a sum of no less than $300 and no more than $2,000 for your refusal conviction. [(Emphasis added).]
It is highly doubtful that defendant would have been more likely to feel impelled to give a breath sample if advised that the minimum penalty entailed one additional month's revocation and an additional fifty dollars for a fine and that he faced the possibility of a $2,000 fine rather than a $1,000 fine. However, we judge the adequacy of the statement read to him not based upon its likelihood to affect his actions but rather, whether it satisfied the legislative mandate.
In Marquez, supra, the Supreme Court stated that "reading the standard statement is an element of a refusal offense." 202 N.J. at 506 n.8. This conclusion is supported by the plain language of the statute. N.J.S.A. 39:4-50.4a(a) sets forth the elements that must be proven by a preponderance of the evidence to sustain a refusal conviction, which include "whether the defendant refused to submit to the test upon request of the officer[.]" The statute states explicitly, "if these elements of the violation are not established, no conviction shall issue."
In addressing the question of what "must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie[,]" the Supreme Court stated that the answer "is provided in the refusal statute itself[,]" which "explicitly provides" that the police officer inform the person arrested of the consequences of refusing to submit to the test and requires that a "'standard statement,'" now prepared by the Attorney General, "'shall be read by the police officer to the person under arrest.'" Schmidt, supra, 206 N.J. at 82 (quoting N.J.S.A. 39:4-50.2(e)). The Court concluded that, to satisfy the statutory mandate, the Standard Statement must "clearly delineate the penalties for a refusal." Id. at 82-83.
Here, the fatal flaw in the Standard Statement read to defendant was that it provided inaccurate information about the penalties he faced and therefore, did not clearly delineate the penalties for a refusal. Pursuant to Schmidt, the Standard Statement did not satisfy the statutory mandate and, consequently, this essential element of a refusal conviction was not proven.
We therefore reverse defendant's conviction for refusal to submit to a chemical breath test and affirm his convictions for DWI and possessing an open container of alcohol in an automobile.
Affirmed in part and reversed in part.