NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-061.
Paul B. Brickfield argued the cause for appellant (Brickfield & Donahue, attorneys; Mr. Brickfield, on the briefs).
Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Frederic M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
Before Judges Fisher and St. John.
Defendant Hector Rojas 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 unclear plates, N.J.S.A. 39:3-33. Defendant was sentenced to three-months license suspension, attendance at an Intoxicated Driver Resource Center (IDRC) for twelve hours, and appropriate fines and penalties. We affirm.
The record discloses the following facts adduced from the trial de novo in the Law Division on the record developed in the municipal court. On December 16, 2011, at approximately 2:31 a.m., Officer Eric Hollenstein of the Riverdale Police Department observed a black SUV with both its front and rear license plates obstructed by EZ Pass brackets and tags. Officer Hollenstein followed the SUV and noticed that the vehicle was traveling at a low rate of speed, approximately 50 miles-per-hour (mph) in a 65 mph zone. Officer Hollenstein then effectuated a motor vehicle stop.
When Officer Hollenstein approached the driver's side window he detected an odor of alcohol. The officer also noticed that defendant's eyes were bloodshot and glassy. Officer Hollenstein asked defendant to exit the vehicle and perform a field sobriety test. Officer Hollenstein first conducted a horizontal gaze nystagmus (HGN) test. During this test, defendant was swaying.
He then administered a walk-and-turn test. While Officer Hollenstein gave instructions, defendant was unable to maintain the starting position, and was staggering, swaying, and having trouble standing up straight. When defendant attempted the test, he took one too many steps and did not touch heel-to-toe on any step as instructed. Defendant's second attempt of the test had to be stopped because his hands were in his pockets. On defendant's third attempt, defendant took two additional steps, failed to count out loud, and did not touch heel-to-toe on every step as instructed. Defendant was also confused on how many steps he had taken and had to ask the officer.
Officer Hollenstein also administered a one-leg-stand test. While the officer was giving the instructions, defendant had difficulty listening and understanding both verbal instructions and physical demonstrations of the test. Defendant's balance was very poor, he did not accurately count during the test, and the officer had to end the test for defendant's safety.
Based on all these observations, Officer Hollenstein believed defendant was operating his vehicle while under the influence of alcohol and he placed him under arrest. Defendant was transported to the Riverdale Police Department for administration of an Alcotest. After being read the Standard Statement of the Implied Consent Statute, defendant was asked if he would provide breath samples and he responded, "No." Defendant was asked a second time and again he responded ...