On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-19-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
Defendant Blair Creed appeals from an order entered by the Law Division on February 8, 2012, denying his motion to suppress Alcotest results. We affirm.
This appeal arises from the following facts. On October 28, 2010, Officer Douglas McDowell (McDowell) of the Montvale Police Department was traveling east on Grand Avenue. He observed defendant's car traveling west. The car crossed over the double yellow lines in the roadway and entered his lane of travel. McDowell turned his vehicle around and followed the car. The car again crossed over the double yellow lines in the road and almost struck a curb.
McDowell called for assistance and stopped the car. He approached the driver's side of the vehicle and asked defendant for his license and the paperwork for the vehicle. The officer detected the odor of an alcoholic beverage emanating from defendant and from the interior of the car. McDowell asked defendant if he had been drinking any alcoholic beverages. Defendant admitted he had four drinks.
McDowell then asked defendant to perform certain field sobriety tests.
Thereafter, McDowell arrested defendant, charged him with driving
while intoxicated (DWI) and transported him to the Montvale police
headquarters. Defendant was informed of his Miranda rights.*fn1
He did not, however, sign the waiver-of-rights form.
McDowell read the DWI Standard Refusal Statement to defendant. He signed the form, and indicated he would provide the requested breath samples. Officer Deak (Deak) observed defendant for twenty minutes, and Officer Earl Cruise (Cruise) began the test. The Alcotest machine aborted during the first control test, and the machine indicated a solution test change was required. The machine generated a report which stated that the test was aborted because the "control test failed."*fn2
Cruise and Deak then transported defendant to the headquarters of the Park Ridge police headquarters. There, an officer observed defendant for twenty minutes, after which Cruise took defendant's breath samples. Defendant's first and third samples were acceptable. Defendant's blood alcohol content (BAC) was 0.16%.
Defendant was charged with DWI, N.J.S.A. 39:4-50; crossing over a double yellow line, N.J.S.A. 39:4-86; careless driving, N.J.S.A. 39:4-97; and failure to keep to the right side of the roadway, N.J.S.A. 39:4-82. Defendant subsequently filed a motion in the municipal court to suppress the Alcotest results.
At the hearing on the motion, defendant presented testimony from Mary McMurray (McMurray), who was qualified as an expert in alcohol testing, toxicology, and forensic science related to chemical breath tests. Among other things, McMurray testified that defendant provided two breath samples in Montvale, which she said was sufficient to determine his BAC.
The municipal court judge denied defendant's motion. The judge found that the Montvale police did not violate defendant's rights by transporting him to the Park Ridge police headquarters after the Alcotest machine in Montvale experienced a control test failure. The judge later determined that the police officers were not required to repeat the standard DWI refusal statement before defendant was tested in Park Ridge. The judge noted that defendant never refused to provide a breath sample, and found that the testing involved constituted "one continuous action."
Defendant thereafter entered a conditional plea of guilty to DWI, reserving his right to appeal from the denial of his motion to suppress on two grounds: (1) the police were not permitted to take defendant from Montvale to Park Ridge to administer the breath test after the control test failure of the Montvale Alcotest; and (2) the police were required to read the standard DWI refusal statement a second time when ...