NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2012
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 11-11.
Peter J. Bonfiglio, III, argued the cause for appellant (Law Offices of Hoffman DiMuzio, attorneys; Mr. Bonfiglio and Joseph J. Hoffman, III, of counsel and on the brief).
Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).
Before Alvarez and St. John Judges.
Defendant Edmund Moore appeals from a judgment of conviction after his trial de novo for two motor vehicle violations: driving while intoxicated (DWI), N.J.S.A. 39:4-50; and maintenance of lamps, N.J.S.A. 39:3-66. Defendant was sentenced to 180 days of imprisonment; referral to an Intoxicated Driver Resource Center (IDRC); a ten-year revocation of his driver's license; and fines, penalties and assessments totaling $1453. We affirm.
The record discloses the following facts adduced from the municipal court trial and the trial de novo in the Law Division. On April 24, 2010, at approximately 1:41 a.m., Officer Jason Neely of the Township of Woodbury Heights Police Department observed a vehicle being operated by defendant with its tail lights not illuminated. Based upon this observation, Officer Neely stopped the vehicle. Officer Neely asked defendant for his credentials, but defendant was unable to produce his license. When defendant turned and answered, Officer Neely noticed that defendant's eyes were bloodshot. He also detected an odor of alcohol coming from within the vehicle. Defendant admitted he was coming from the Southwood Bar and that he had ingested a six-pack of beer. It is not contested that the front seat passenger had also been drinking.
Defendant was then asked to state the alphabet without singing it, which the officer asserted was done incorrectly. The officer stated that while administering the alphabet test to defendant, he detected an odor of alcohol beverage coming from defendant's breath. He asked defendant to exit the vehicle. The officer testified that, "when he stepped out, he kind of staggered and I asked him to walk to the rear of the vehicle." The officer stated that when defendant got to the rear of the vehicle, he placed his hand on the trunk lid and the officer had to ask him several times to step up onto the sidewalk before he actually did it. After the officer demonstrated the one-leg stand test, defendant advised the officer that he had knee injuries. The officer then requested that defendant perform a test where he would touch the tip of his nose, but defendant instead touched the side of his nose. He was then asked to count from one to thirty, leaving out the number thirteen. While doing this, defendant omitted the number eight and began to say the number thirteen, but stopped himself after saying "THIR." Defendant was placed under arrest. The police vehicle was equipped with a video system which captured the incident. Both the municipal judge and the Law Division judge reviewed the video.
At the police station, Officer Neely removed his portable radio and cell phone and placed them in the police locker room. That locker area is separate from the room containing the Alcotest equipment. Defendant was asked if he would be willing to provide a breath sample, and he consented. The proceedings were captured on video. Neely administered the breathalyzer twice and completed an Alcohol Influence Report (AIR).
At the municipal trial, the State moved to admit the AIR into evidence. Defendant objected to its admission on the grounds that the State did not comply with the protocol for the admission of the AIR. Defendant stated that there was no evidence that the officer changed the mouthpiece between the two breath samples as required. The video did not disclose whether or not it was changed. At this point in the trial, the State had not rested. The municipal judge allowed the question to be asked and Officer Neely responded that he had changed the mouthpiece. The officer then stated that the AIR demonstrated a .18 blood alcohol content. As to certain electronic equipment present in the room containing the Alcotest equipment, Neely stated that they were either off or in hibernation mode.
In response to questioning by Neely, defendant stated he had been drinking Budweiser beer at the Southwood Bar and that he had seven beers. He also gave a timeframe of 8:30 p.m. to 1:45 a.m. when he ingested the alcohol. He did not give a timeframe for his drinking during the initial stop. Neely further testified that, based on his training and ...