June 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTIN OLECH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2010-28.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2012
Before Judges Ashrafi and Fasciale.
Defendant appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50. Defendant argues (1) that the State produced insufficient evidence to convict him based on the officers' observations; (2) that the Municipal Court judge erred by denying his request for an adjournment to permit his AlcoTest expert to testify; and (3) that the Law Division judge erred by failing to conduct a de novo review and by deferring to credibility findings. We affirm.
On September 22, 2009, at approximately 1:35 a.m., Officers Christopher Van Ness and Jason Jones were patrolling in a police vehicle. Officer Van Ness merged onto Route 1 and observed from behind him that defendant was operating a two-door Mazda traveling slowly in a fifty-five mile per hour zone. Officer Van Ness reduced his rate of speed to approximately thirty miles per hour, allowed defendant to pass him, and noticed that the rear license plate light on the Mazda was inoperable. He then activated his overhead lights and spotlight and conducted a lawful automobile stop.*fn1
Officer Van Ness approached the driver's side of the Mazda and detected a very strong odor of alcohol. He noticed that defendant's eyes were bloodshot and watery, his speech slurred, and his face flushed. At the same time, Officer Jones, acting as the back-up officer, approached the passenger side of the Mazda. Officer Jones also detected an odor of alcohol.
Defendant admitted to Van Ness that he had been coming from Hooters and had consumed two alcoholic drinks. Officer Van Ness asked defendant to exit the Mazda and then conducted field sobriety tests at the scene.*fn2 During a walk and turn test, defendant "failed to touch heel-to-toe numerous times, he stepped off line numerous times, and he raised his hands for balance [and] turned incorrectly." During a one-leg stand test, defendant "swayed while balancing from side to side and front to back[,] and he raised his hands over six inches to balance himself." Officer Van Ness also observed defendant generally "swaying while he walked" and "swaying while he was standing." Officer Jones made similar observations; he watched defendant perform the tests, and concluded that defendant's "coordination and balance were poor." The officers determined that defendant was intoxicated, arrested and charged defendant with DWI, and transported him to the police station. On the ride to headquarters, the officers detected a strong odor of alcohol in the police vehicle. Officer Van Ness testified that defendant's demeanor at the police station was "very antagonistic."
The matter was tried in Municipal Court before Judge Mary S. Brennan, J.M.C. Judge Brennan listened to the testimony from Officers Van Ness and Jones, and viewed three videotapes: S-1, a video tape recorded from the police vehicle, and S-13 and S-14, two separate videotapes taken at police headquarters. Judge Brennan found the officers "credible" and rendered an eighteen-page oral opinion. Based on the officers' observations, Judge Brennan found defendant guilty of DWI.*fn3 She suspended defendant's license for three months, and imposed the appropriate fines and penalties. Defendant appealed his DWI conviction to the Law Division.
Judge Pedro J. Jimenez, J.S.C., conducted a trial de novo in the Law Division and issued a nine-page written opinion. Judge Jimenez deferred to Judge Brennan's credibility findings, concluded that "[t]he officers' observations adequately supported [d]efendant's conviction[s], beyond a reasonable doubt," and found defendant guilty of DWI. Judge Jimenez then imposed the same sentence issued by Judge Brennan. This appeal followed.
On appeal, defendant raises the following points:
JUDGE BRENNAN COMMITTED REVERSIBLE ERROR WHEN SHE DENIED DEFENDANT'S APPLICATION TO ADJOURN THE TRIAL SO THAT DEFENDANT'S EXPERT COULD BE PRODUCED TO TESTIFY.
JUDGE JIMENEZ ERRED BY NOT CONDUCTING A FULL DE NOVO HEARING BUT INSTEAD SUMMARILY RELYING SOLELY ON JUDGE BRENNAN'S FINDINGS OF CREDIBILITY AND FACTS.
JUDGE JIMENEZ AND JUDGE BRENNAN ERRED IN FINDING THAT THE OFFICER'S OBSERVATIONS PROVED BEYOND A REASONABLE DOUBT THAT OLECH WAS DRIVING WHILE INTOXICATED.
In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See, e.g., State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8(a). See, e.g., State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), 209 N.J. 430 (2012). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); see also Adubato, supra, 420 N.J. Super. at 176. In our review, we must likewise give deference to the findings of the trial judge who was influenced by his opportunity to hear and see the witnesses. Johnson, supra, 42 N.J. at 161. We then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Our review of the law is de novo. Id. at 158-59.
Because there was sufficient credible evidence to convict defendant of DWI based on the officers' observations, we conclude that defendant's first point is without merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2).*fn4 Likewise, we are satisfied that Judge Jimenez conducted a de novo review of the record and properly deferred to Judge Brennan's credibility findings. We focus, instead, on defendant's remaining contention that the officers' observations were inadequate to sustain a DWI conviction.
In determining whether a driver is under the influence of alcohol, field sobriety tests and breathalyzer tests are not always required. See State v. Ravotto, 169 N.J. 227, 242 (2001) (noting that proof of blood alcohol levels to convict drunk drivers is not required). Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd, 293 N.J. Super. 535 (App. Div. 1996); see also State v. Nemesh, 228 N.J. Super. 597 (App. Div. 1988) (concluding that defendant's admissions, police observations, and videotape of defendant's behavior were sufficient to support DWI conviction), certif. denied, 114 N.J. 473 (1989). Physical manifestations of intoxication have been held to include: slurred speech, the smell of alcohol on defendant's breath, fumbling for credentials, staggering or swaying while standing or walking, and belligerent behavior. See Ravotto, supra, 169 N.J. at 242; Johnson, supra, 42 N.J. at 153; State v. Hammond, 118 N.J. 306, 308 (1990).
Here, the State submitted credible evidence that defendant failed two field sobriety tests, and the officers observed slurred speech, bloodshot and watery eyes, a strong odor of alcohol, and an antagonistic demeanor. Additionally, defendant admitted to the officers that he had consumed two drinks before leaving Hooters. We are therefore satisfied that the record contains sufficient credible evidence that defendant is guilty of DWI beyond a reasonable doubt, Johnson, supra, 42 N.J. at 162, and we affirm substantially for the reasons expressed in Judge Jimenez's written opinion.