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State of New Jersey v. Gary W. Smith

December 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY W. SMITH, DEFENDANT-APPELLANT.



On Appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-73-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2012

Before Judges Sapp-Peterson and Nugent.

Defendant Gary W. Smith appeals from his conviction and sentence for driving while intoxicated (DWI), N.J.S.A. 39:4-50. He raises the following arguments:

1. THE STATE FAILED TO PROVE THAT DEFENDANT WAS IN VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT

A. THE LAW DIVISION JUDGE ERRED BY MISINTERPRETING THE "20 MINUTE OBSERVATION RULE" AND REVERSED THE MUNICIPAL COURT JUDGE'S RULING THAT THE BAC READING SHOULD BE SUPPRESSED

B. BECAUSE OF DEFENDANT/APPELLANT'S MEDICAL CONDITION, THE PSYCHO-PHYSICAL TESTS YIELDED NO RELIABLE INFORMATION

C. THE LAW DIVISION COURT ERRED BY ENHANCING THE DEFENDANT'S SENTENCE ON APPEAL

Having considered defendant's arguments in light of the record, we affirm the conviction and sentencing, but remand solely for the purpose of correcting a clerical mistake in the judgment of conviction.

These are the facts the parties developed during the municipal court trial. On February 1, 2006, at approximately 10:30 p.m., defendant was driving a gray Yukon SUV and traveling southbound on Erial Road in Gloucester Township. Brian McKendry, the sergeant for the Patrol Division of the Gloucester Township Police Department, was driving behind defendant's SUV. According to McKendry, as the SUV approached a traffic light, it "moved to the left over the double yellow line." A short time later, as the SUV approached another traffic light, its "right turn signal came on . . . then [it] swerved to the right shoulder," went through the green light, continued for a while "real close to the curb, and then all of a sudden . . . swerved back over towards the center line." McKendry stopped defendant and asked him for his credentials.

Defendant initially produced his driver's license and a piece of paper containing phone numbers. When McKendry asked what the numbers were, defendant said "oh" and took the numbers back. Defendant then began looking for other documents. It appeared to McKendry that defendant was having difficulty finding his credentials. McKendry smelled alcohol on defendant's breath and noticed that defendant was slurring his words. Defendant eventually handed McKendry a trailer registration, which McKendry returned. Defendant then gave McKendry two insurance cards.

McKendry asked defendant where he had been and defendant replied he was "coming from a friend's house." When McKendry asked defendant if he "had anything to drink tonight," defendant replied: "Yes, and I think I drank too much." McKendry went to his patrol car to radio for a back-up unit and when he returned to the SUV, he smelled a strong, overpowering odor of cologne. McKendry accused defendant of spraying cologne in the car. Defendant responded, "[w]ell, you know, I wear cologne."

When Patrolman Nicholas Bersani arrived with another backup officer, McKendry turned over the investigation to Bersani, who had defendant undergo field sobriety tests. Bersani noticed that defendant's eyes were red and watery, his face was flushed, and he appeared to ...


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