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State of New Jersey v. William G. Wright

November 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM G. WRIGHT, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. A-15-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued October 5, 2012

Before Judges Lihotz, Ostrer, and Kennedy.

Following an unsuccessful pre-trial motion to suppress, defendant William Wright, Jr., was tried in the Stow Creek Township Municipal Court on June 3, 2011. The municipal court judge (MCJ) found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, driving while suspended, N.J.S.A. 39:3-40, accessing a state wildlife management area during unauthorized hours, N.J.A.C. 7:25-2.5(a), and possession of alcoholic beverages in a state wildlife management area, N.J.A.C. 7:25-2.4. Following a trial de novo, the Law Division likewise found defendant guilty on all charges. Defendant appeals from the conviction for DWI, arguing:

POINT I

THE COURT BELOW FAILED TO APPLY THE TOTALITY OF THE CIRCUMSTANCES TEST WHICH, WHEN APPLIED, REVEALS THE OFFICER DID NOT HAVE PROBABLE CAUSE TO STOP OR ARREST DEFENDANT.

A. No [r]easonable [a]rticulable suspicion to stop.

[1]. Lawfully parked.

[2]. Fits within an exception in the regulations.

[3]. Community Caretaking.

B. No probable cause to arrest.

[1]. Authority.

[2]. No operation of a Motor Vehicle.

[3]. Field Sobriety Tests were Improperly Administered.

i. HGN.

ii. Walk and Turn Test and One Legged Stand.

POINT II

THE DEFENDANT'S DWI CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

A. The state did not prove operation beyond a reasonable doubt and the DWI summons should have been dismissed because there is not intent to operate.

B. The blood alcohol results ("BAC") readings are inadmissible against Wright because the Alcotest was not administered within a reasonable time period of time [sic] after he last his [sic] drove his vehicle; and thus the state can offer no credible evidence that he drove his vehicle while intoxicated.

[1]. Observation Prong.

[2]. Per Se Prong.

C. The state cannot prove a per se violation of the statute because the Alcotest evidence is inadmissible.

[1]. Failure to observe specific protocols.

[2]. The State failed to prove compliance with the twenty minute observation/deprivation period.

[3]. Ertco Hart/Control Company Certificates.

D. The State cannot prove [DWI] based on observation beyond a reasonable doubt.

We ...


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