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State of New Jersey v. Frederic D. Smith

June 27, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FREDERIC D. SMITH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 76-2010.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2012 --

Before Judges Messano and Yannotti.

Defendant Frederic D. Smith appeals from a final judgment of conviction entered by the Law Division on April 6, 2011, following a municipal court appeal in the Law Division finding him guilty of driving under the influence of intoxicating liquor and other offenses. For the reasons that follow, we affirm.

I.

On February 11, 2010, a police officer from the Spotswood Police Department (SPD) issued five motor vehicle summonses to defendant. He was charged with driving under the influence of intoxicating liquor, N.J.S.A. 39:4-50; driving under the influence of intoxicating liquor in a school zone, N.J.S.A. 39:4-50(g); reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; and driving without insurance, N.J.S.A. 39:6B-2. The matter was thereafter tried in the municipal court. *fn1

At trial, Officer Nicholas Mayo (Officer Mayo) of the SPD testified that on the morning of February 11, 2010, he was on patrol and stationed his vehicle on Devoe Avenue because of snowy and icy conditions. At around 9:20 a.m., Officer Mayo witnessed defendant's vehicle collide with the rear end of another vehicle. Officer Mayo observed defendant attempt to exit his vehicle, stumble into the roadway, and almost fall to the ground. As he escorted defendant to the sidewalk, Officer Mayo smelled alcohol emanating from defendant.

According to Officer Mayo, defendant spoke in a slurred and slobbering manner. Officer Mayo said that defendant's eyes were bloodshot, watery, and constricted. He had dried, runny yellow mucous between his upper lip and nose.

While still at the scene of the accident, defendant told Officer Mayo that he had taken Percocet and consumed two alcoholic beverages that morning. Because of the icy conditions on the road, Officer Mayo was only able to administer the horizontal gaze nystagmus test (HGN test)*fn2 to defendant. Based on the results of that test and his observations of defendant, Officer Mayo concluded that defendant had operated a motor vehicle while under the influence of intoxicating liquor. Officer Mayo placed defendant under arrest.

Officers then transported defendant to the Spotswood police headquarters and brought him into a processing room. Officer Mayo advised defendant of his Miranda*fn3 rights and the consequences of refusing to submit to a breath test, as required by N.J.S.A. 39:4-50.2(e). Officer Mayo also read to defendant a standard statement describing the Alcotest. After defendant agreed to submit to the breath test, Officer Mayo administered several sobriety tests to defendant.

Officer Mayo first administered the finger-to-nose test. Officer Mayo instructed defendant on how to perform that test. Defendant missed two attempts to touch his nose with his left hand. He also missed all three attempts to do the same with his right hand. Officer Mayo next instructed defendant on how to perform the heel-to-toe test. As he instructed defendant on how to perform this test, Officer Mayo observed that defendant had a difficult time maintaining his balance. Defendant missed four of his first nine steps. He did not turn around as instructed, and during the nine return steps, he missed six steps.

Officer Mayo then instructed defendant on how to perform the next test, which required defendant to tilt his head back, close his eyes and estimate the passage of thirty seconds. Defendant exhibited leg and eyelid tremors while attempting to accomplish this test. He also estimated that thirty seconds elapsed when only twenty-four seconds had elapsed, and he swayed side to side during the test. Officer Mayo thereafter instructed defendant on how to complete the walk-straight-and-turn test.

Defendant leaned towards his left side from the waist up during this test.

After administering these sobriety tests, Officer Mayo interviewed defendant. Defendant stated he was driving to South River when the accident occurred. Defendant had last eaten at 8:00 p.m. the night before and he slept for only approximately three hours. He claimed that he had two glasses of rum and coke at his residence. He had his first drink at 10:00 p.m. the night ...


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