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State v. Miller

Superior Court of New Jersey, Appellate Division

May 31, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
TRACEY MILLER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued April 19, 2013

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 14-2011.

Charles A. Fiore argued the cause for appellant.

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

Before Judges Sapp-Peterson and Happas.

PER CURIAM

Following a trial de novo on the record created in the Waterford Township Municipal Court, the Law Division judge found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; and failure to stop, N.J.S.A. 39:4-144. We affirm.

The incident leading to defendant's arrest occurred on October 14, 2010, around 1:23 a.m. At that time, Patrolman Timothy Lyons observed a vehicle proceed through a stop sign without stopping. The officer pulled over the driver, who was subsequently identified as defendant. The officer observed defendant fumbling to retrieve his credentials and detected an odor of alcohol. Field sobriety tests, which included a field breathalyzer, were performed. Defendant failed these tests and was arrested for DWI and other moving violations. At the station, he refused to submit to a formal breathalyzer test, despite being advised that he had no right to refuse.

At trial before the municipal court, defendant moved for recusal of the judge because he planned to initiate litigation against the municipality, which employed the municipal judge and police officers, many of whom regularly appeared before the judge. The judge denied the motion. The judge also denied defendant's motion for disclosure of the cell phone records of the arresting officer and Sergeant Joseph McNally, who was present at the station when defendant was brought in, witnessed defendant's conduct, and also purportedly had a relationship with defendant's former wife. Defendant claimed the discovery was relevant to show that Lyons and McNally had communicated on the evening of his arrest and coordinated a pattern of harassment.

The municipal judge credited the officers' testimony and found defendant guilty of the DWI, refusal, and failure to stop. The judge acquitted defendant of careless driving. On appeal de novo, the Law Division judge once again found defendant guilty. The judge, while recognizing the fact of potential litigation against the police and municipality, noted there had been no issues involving the municipal court judge. Giving deference to the municipal judge's credibility determination, the Law Division judge found the testimony about defendant's bloodshot eyes, slurred speech, slow speech, and admission that he had been drinking, were unrefuted facts. Additionally, the judge noted that despite the considerable expert testimony offered regarding the deficiencies in the field sobriety tests administered, defendant's own expert concluded at trial that defendant clearly failed the walk-and-turn test. The judge also rejected the claims that defendant was confused when he refused to submit to the Alcotest. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I
THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S ...

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