On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 27-09-A-T-13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Cuff and Lihotz.
Defendant Cynthia Sorrentino appeals from a Law Division judgment, following a trial de novo, affirming her municipal court convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving while her privileges were suspended, N.J.S.A. 39:3-40.*fn1 This was defendant's third DWI conviction within the last ten years, for which she was sentenced to 180 days in the county jail and her driving privileges were forfeited for ten years. N.J.S.A. 39:4-50(a)(3). We affirm.
According to the State's proofs adduced at the municipal court trial, the Hillsborough Township Police Department dispatch received a 9-1-1 citizen call of an erratic driver on Duke's Parkway in Bridgewater, at 3:47 p.m. on January 9, 2007. The caller provided "a specific plate" and "a specific vehicle." Patrolman Joseph Paschall responded to the call by initially driving to the area identified by the caller, but he could not locate the described vehicle. After running a motor vehicle check on the license plate, Patrolman Paschall obtained the owner's address and proceeded to a residence on Roycefield Road. There he encountered the described pick-up truck in the driveway with its motor running and defendant behind the wheel.
Patrolman Paschall asked defendant how she was doing. She responded with complaints regarding her vehicle's operation. He noted her speech was slow and slurred. Patrolman Paschall asked defendant to produce her license, insurance card and registration. Patrolman Paschall observed defendant's hand movements, which were "slow," and she was "not able to hold [her credentials], grasp them and go through them without fumbling through them." She produced an insurance card and registration but not a driver's license. A subsequent record's check revealed defendant's driving privileges had been suspended.
Patrolman Paschall asked defendant to exit the vehicle "several times" but "[i]t was almost as if she didn't understand what I was asking her at the time." He did not detect an odor of alcohol on defendant's breath and she asserted she had not had any alcohol to drink.
Once the roadway was blocked for safety and defendant was out of the car, Patrolman Paschall requested her to perform various field sobriety tests. First, he issued instructions for the horizontal gaze nystagmus test (HGN).*fn2 In conducting each phase of the test, he noticed defendant's eyes lacked a "smooth pursuit [of the stimulus] in the left and right eye" and "were jerking." Second, she was asked to recite the alphabet beginning with the letter "D" and ending with "T." Defendant started with "A" then stopped, began again with "D" and proceeded to "Z." Patrolman Paschall noted defendant's speech was "slow and slurred." Third, defendant was asked to count backward beginning with 99 and ending with 69. In doing so, defendant missed 88, 79 through 71, and continued passed 69 to 68 when she was stopped by the officer. Next, she was asked to perform the one-leg stand and the walk-and-turn test. Defendant had difficulty following the given instructions. Before proceeding, Patrolman Paschall radioed for back-up.
Patrolman Sencher arrived and the field sobriety tests resumed. Defendant acknowledged she understood the instructions and stated she had no conditions precluding her performance. During the walk-and-turn test, defendant was observed "swaying left to right[,]" she "stepped off the line[,]" she "staggered[,]" and "had her arm raised for balance[.]" When performing the one-leg stand, defendant dropped her foot several times, miscounted, swayed left to right, and raised her arms for balance. As a result of all of these facts, Patrolman Paschall concluded defendant was intoxicated and arrested her for DWI.
At police headquarters, defendant was advised of her Miranda*fn3 rights and given a breathalyzer test, which returned a blood alcohol concentration reading of zero. Patrolman Paschall then inquired whether defendant was taking any medications. Defendant stated she had been prescribed medications for depression and pain resulting from a prior motor vehicle accident, including Wellbutrin (300 milligrams) which she took at 6:30 a.m., two Fioricet taken at 10 a.m. and 3 p.m., Percocet (five milligrams) taken at 9 a.m. and 1 p.m. and Ambien (twelve and one-half milligrams) taken the night before.*fn4 In a subsequent interview with a different officer, defendant admitted she took one Fioricet at 10 a.m. and one at 1 p.m. and took Zanex (one milligram).
In completing his report, Patrolman Paschall included the following additional observations of defendant's physical condition:
Her ability to walk I have that she was swaying and staggering.
Her ability to stand I had her as swaying and her sagging at her knees.
Her speech was slurred, slow and at times she was crying.
Her demeanor was indifferent, cooperative, polite, ...