On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 100-2009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
Defendant Emmanuel Papasavvas appeals his third conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, based on evidence provided by the arresting officer of his observations
and the results of field sobriety tests. On appeal, defendant presents the following argument:
THE LAW DIVISION'S DECISION CONVICTING EMANUEL PAPASAVVAS OF DRIVING WHILE INTOXICATED IS INTERNALLY INCONSISTENT AND NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE INDICATING THAT THE STATE FAILED TO MEET ITS [BURDEN] BEYOND A REASONABLE DOUBT.
At a suppression hearing held in the municipal court, testimony was offered by East Brunswick police officer Brian Ventura. He stated that at approximately 1:00 a.m. on July 1, 2009, he was on road patrol on Route 18 south in the area of the merge onto Cranbury Road. Because he was required to yield to traffic before merging, Officer Ventura said he looked to his left. The officer noted that there was a stop sign in that location that motorists frequently did not completely obey. As he looked in the direction of the stop sign, the officer saw a vehicle approaching at a high rate of speed that he estimated to be sixty miles per hour. When the vehicle did not slow down at the stop sign, Officer Ventura pulled behind it and activated his overhead lights, so as to make a stop.
After the vehicle had stopped, the officer approached the driver's window and requested the driver's license, registration and insurance. He then observed the driver fumbling through documents in his glove box and wallet. At that point, the driver's movements were described to be slow and lethargic; his face was flushed; and his eyes were bloodshot and watery. When conversing with the driver, Officer Ventura observed slurred speech. When asked if he had consumed alcohol, the driver denied having done so.
Documents produced by the driver identified him as defendant. Upon verifying them, Officer Ventura determined that defendant's registration was suspended. After confirming that fact, the officer returned to defendant's vehicle and ordered him to exit the car to perform road sobriety tests. The officer testified that, as he exited the vehicle, "[h]e seemed like he was off balance. He staggered a bit when he walked." After smelling alcohol on defendant's breath, Officer Ventura again asked defendant if he had been drinking, and was informed by him that he had consumed one beer.
The roadside sobriety tests were conducted on a near-by sidewalk, outside of the recording range of the officer's video camera. However, audio evidence of the testing was recorded. The first test to be performed was the one-leg stand test. Defendant commenced that test while wearing work boots, but after stating that he was having difficulty balancing with the boots on, he was permitted to sit on the curb to remove them.
Defendant then performed the test in his socks. During the course of the thirty-second, timed test, defendant was described as "continually" putting his foot down, raising his arms for balance, and swaying, but not hopping. Defendant thus exhibited three out of the four indicia designed to establish intoxication, thereby failing the test. On cross-examination, Officer Ventura admitted that ...