On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 10-055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Reisner and Hoffman.
Following a trial de novo in the Law Division, defendant Anthony Gummerson appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. For the reasons that follow, we affirm.
On May 2, 2010, at approximately 1:30 a.m., Corporal Brian Bigham of the Washington Township Police Department witnessed defendant's vehicle drift over the right fog line and the center passing line several times on U.S. Highway 46 for approximately two miles.
While speaking to defendant after pulling him over, Corporal Bigham noticed an odor of alcohol and that defendant appeared sleepy with bloodshot and watery eyes. Based on these observations and defendant's erratic driving, Corporal Bigham administered six field sobriety tests.
Prior to performing the field sobriety tests, Corporal Bigham asked defendant if he had any impairments that would prevent him from performing the tests. Defendant indicated that he had a club foot, which Corporal Bigham said he would take into account.
On the alphabet test, defendant incorrectly recited the letters out of order - "T, U, R, V". Additionally, he failed to complete the counting test correctly by not stopping at eleven on the way back to one from twenty-one, per Corporal Bigham's instructions.
Defendant also had difficulty performing the physical tests. During the walk-and-turn test, he had trouble maintaining his balance and kept separating his feet. During the one-leg stand test, defendant put his foot back to the ground within a few seconds and swayed back and forth. Finally, when performing the Romberg balance test, defendant swayed front to back approximately two inches.
At the conclusion of the field sobriety testing, defendant admitted to having consumed three or four beers, an increase from his original claim of two or three when first pulled over.
Based upon defendant's erratic driving, his appearance, and the results of the field sobriety tests, Corporal Bigham concluded that defendant was under the influence of alcohol and was over the legal limit allowed for driving. Defendant was then placed under arrest and transported to the police station where he provided breath samples for the Alcotest. The test resulted in a Blood Alcohol Content (BAC) reading of 0.12%.*fn1
The case proceeded to trial in the Washington Township Municipal Court on August 12, 2010, September 30, 2010, and October 28, 2010. On October 13, 2010, near the conclusion of trial, defendant filed a discovery motion requesting the police department's standard operating procedure and ...