On appeal from Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5947.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Graves and Koblitz.
On May 17, 2009, defendant Roberto Lopez was charged with driving while intoxicated (DWI), N.J.S.A. 39.4-50; careless driving, N.J.S.A. 39:4-97; and driving the wrong way on a oneway street, N.J.S.A. 39:4-85.1. Defendant was subsequently charged with refusing to submit to an Alcotest, N.J.S.A. 39:4-50.2. Following a trial in the Municipal Court of Elizabeth, defendant was convicted of DWI, refusing to submit to an Alcotest, and careless driving. The court dismissed the charge of driving the wrong way on a one-way street because it was "part and parcel" of careless driving.
Defendant appealed his DWI and refusal convictions, but he did not appeal his conviction for careless driving. After a trial de novo, defendant was acquitted of the refusal charge; however, he was again convicted of the DWI offense. Defendant was sentenced as a second-time DWI offender to a suspended thirty-day jail sentence, a two-year driver's license suspension, thirty days of community service, and forty-eight hours at an Intoxicated Driver Resource Center. The Law Division also imposed the statutorily mandated fines, fees and assessments, and required defendant to install an interlock device for a twelve-month period following restoration of his license. We affirm.
The facts are not complicated. Two Elizabeth police officers, Jaques Cockinos and Daniel Rivera, were in a patrol vehicle that was entering "the Bayway Circle from Edgar Road" when they observed a Lexus going in the wrong direction on the circle. To avoid a collision, Rivera testified he drove "into the BP Gas station." Rivera immediately activated his lights and sirens and pursued the Lexus. According to the officers, the Lexus "wouldn't stop. It went across the circle and made a left onto 1 and 9 going north." The vehicle continued for about "a quarter of a mile" before it "made an abrupt stop."
The officers approached the Lexus, observed defendant in the driver's seat, and Rivera asked defendant for his license, registration, and insurance. While defendant was "fumbling around, looking for his paperwork," Rivera detected a strong odor of alcohol coming from defendant. Although defendant eventually produced his license, he did not produce the registration or proof of insurance.
When Rivera asked defendant to exit the vehicle, Rivera observed defendant "was pretty much just stumbling over." Rivera also noted that defendant had an "unsteady gait" and "couldn't maintain his balance," so Rivera "grabbed him by the arm." In addition, Cockinos testified defendant was "crying," "very unsure of himself," "had to use support," "and upon exiting the vehicle, he started to fall down." Cockinos also testified that he helped defendant to stand up; however, when the officers let him go, defendant was unable to maintain his balance and started to fall again.
Because defendant was "just stumbling and sagging," the officers determined it was unsafe to conduct field sobriety tests at the scene. Defendant was then placed under arrest for DWI and transported to the police station.
Defendant did not testify at the municipal court trial, but he produced expert testimony from Herbert Leckie, who testified the Alcotest test was not administered correctly because the officers failed to read the "proper instruction" to defendant. Nevertheless, Leckie conceded that "the officers had probable cause to believe defendant was operating his vehicle while intoxicated."
Defendant also called his father, Isidoro Lopez, as a witness. Defendant's father testified that on the night in question, he was watching television and talking with his son between the hours of 10 p.m. and 2 a.m., and he did not see defendant consume any alcoholic beverages while they were together.
In an oral decision on January 28, 2012, the municipal court judge found that defendant's father "must have the time confused because his testimony as to the demeanor of his son, Roberto, is certainly in conflict with the demeanor that he displayed at the time the police officers stopped him." The municipal court judge credited the officers' testimony and, based on their observations, defendant was found guilty of "driving under the influence of alcohol . . . refusing to take a breathalyzer test . . . [and] careless driving."
Defendant appealed his DWI and refusal convictions to the Law Division, which conducted a trial de novo on the record. Following oral argument, defendant was found not guilty of the refusal charge, but the Law Division judge determined that the officers' observations were sufficient to prove defendant guilty of DWI ...