September 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEBASTIAN VOLTARELLI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 5, 2012
Before Judges A. A. Rodriguez and Fasciale.
Defendant Sebastian Voltarelli was convicted in the Law Division, after a trial de novo based on the record developed in the Hanover Township Municipal Court, of driving while intoxicated, N.J.S.A. 39:4-50. This was defendant's third DWI conviction.*fn1 The Law Division judge imposed the following sanctions: payment of fines and assessments totaled $1,414; revocation of driving privileges for ten years; and incarceration for 180 days. The custodial sentence and license revocation were stayed by the Law Division. We affirm.
The following is a summary of the testimony by the State's sole witness, Hanover Township Patrolman John Schauder. He testified that on October 9, 2009, he stopped defendant's vehicle because it was swerving and failing to stay in the lane. Specifically, on two occasions, Schauder saw the driver's side tires cross the double-yellow lines and the passenger side tires cross over the dashed line.
While Schauder requested defendant's license, insurance and registration, he detected alcohol on defendant's breath and noticed that defendant's eyes were watery and bloodshot. Defendant's speech was slurred. Schauder asked defendant to exit the vehicle and saw that defendant "seemed to sway a little bit, stagger, stumble [and] had to lean on the vehicle to maintain his balance."
Schauder then asked defendant to perform three field sobriety tests. First, defendant performed a horizontal gaze nystagmus (HGN) test. Then, defendant was asked to perform the one-legged stand test. Schauder noticed that while defendant performed the one-legged stand test, defendant had difficulty maintaining his balance, had to raise his arms at least twelve inches from his body on three occasions and had to put his foot down while counting in order to maintain his balance. After the count of four on the first attempt, defendant placed his foot down. Defendant raised his leg again and was able to maintain his balance for a period of thirty seconds. However, defendant also raised his hands for balance.
Finally, Schauder asked defendant to perform the walk-turn (or heel-to-toe) test while looking forward. Schauder admitted this last instruction was a mistake. The interaction between defendant and the officer at the scene of the stop was videotaped, and the videotape was admitted into evidence as S-9.
Based on defendant's performance of these tests, Schauder concluded that defendant was intoxicated.
Schauder handcuffed defendant and transported him to police headquarters. At headquarters, after a twenty-minute period of observation, defendant was read the Standardized Statement for Drivers and agreed to provide samples of his breath. He was instructed on the Alcotest. The Alcotest instrument went through a cycle of initial tests, and the officer entered the required information into the system. Schauder then followed the required prompts and read a statement to defendant with regards to providing breath samples. On defendant's first attempt to provide breath samples, a "minimum volume not achieved" message appeared on the Alcotest, as defendant did not provide a sufficient volume for the instrument to analyze. Schauder then replaced the mouthpiece and re-read the instructions to defendant. Thereafter, defendant provided two adequate breath samples. This resulted in .20 percent readings.
At trial, defendant presented Gary Aramini as an expert on the procedures for conducting a DWI arrest. He qualified and testified that the results of the Alcotest were compromised due to Schauder's acknowledgment that he could have secured various items during the twenty-minute observation period. Aramini also opined that the HGN test was not properly administered. According to Aramini, Schauder did not properly instruct defendant on how to perform the heel-to-toe test. Upon reviewing S-9, Aramini testified that he could clearly hear and understand defendant's responses to Schauder's questions.
The Law Division judge found the testimony of Schauder credible. Specifically, the judge said:
[B]ased upon my reading of the transcript of the patrolman's testimony as it relates to what occurred at the roadside -- and I did have the opportunity to view S-9 in evidence personally -- and his testimony is not inconsistent at all. As a matter of fact, it's entirely consistent with what occurred on the videotape. I find that [Schauder's] testimony before the Court was truthful as it related to what happened at the roadside, and the deference I must give to municipal court is properly placed. The officer testified the continuous 20-minute time was -- was spent in the observation of the defendant during the administration of the Alcotest.
On appeal, defendant contends:
THE STATE LACKS SUFFICIENT CREDIBLE EVIDENCE OF INTOXICATION TO PROVE A REASONABLE DOUBT THAT [DEFENDANT] OPERATED HIS MOTOR VEHICLE WHILE INTOXICATED.
The State Did Not Prove [Defendant] Was Intoxicated Beyond A Reasonable Doubt Based Upon The Observations Of The Arresting Officer.
When we review the fact-finding of a judge sitting without a jury, our scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "substantial" credible evidence present in the record, considering the proof as a whole. In re Phillips, 117 N.J. 567, 579 (1990). We are not "permitted to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
Applying that standard here, and after a careful review of the arguments and the proofs, we determine that the judge's decision is supported by substantial credible evidence on the record as a whole. In re Phillips, supra, 117 N.J. at 579. The observations by Schauder, which the Law Division judge credited after reviewing S-9, are sufficient to support the conviction.
For that reason, we do not address the following challenge to the Alcotest evidence raised by defendant:
The Alcotest Readings Cannot Be Deemed Reliable Due To The State's Failure To Establish By Clear And Convincing Evidence That [Defendant] Was Properly Observed For The Twenty Minutes Immediately Preceding The Alcotest Being Administered.
The conviction and sentence are affirmed. Defendant is directed to appear no later than October 3, 2012, at the Office of the Criminal Case Manager, Morris County to arrange for the service of the custodial sentence and license revocation.