NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 12-04-12.
Laura L. Nazzaro, Assistant Prosecutor, argued the cause for appellant (David J. Weaver, Sussex County Prosecutor, attorney; Ms. Nazzaro, of counsel and on the brief).
Daniel G.P. Marchese argued the cause for respondent.
Before Judges Ashrafi and Espinosa.
The State appeals from an order entered in the Law Division after a de novo trial that found defendant not guilty of refusing to take a breath test. Because the State's appeal is barred by double jeopardy principles, we affirm.
On August 9, 2010, defendant was arrested by Sparta Township Police Department officers for driving while intoxicated (D.W.I.). After being transported to the police station, defendant refused to submit to a breathalyzer test. She was charged with D.W.I., N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; resisting arrest, N.J.S.A. 2C:29-2(a)(1); and disorderly conduct, N.J.S.A. 2C:33-2(a)(1). She was convicted of all charges in municipal court and sentenced as follows: On the D.W.I. charge, the court imposed a $1000 fine, a ten-year loss of her driver's license, a three-year interlock ignition device on her vehicle, forty-eight hours at the Intoxicated Driver Resource Center (the IDRC), six months in county jail, and other fines and surcharges. On the refusal charge, the court imposed a two-year suspension of defendant's driver's license and forty-eight hours at the IDRC to run concurrent with the D.W.I. sentence, as well as fines and surcharges. The court merged fines and penalties for the resisting arrest conviction with those for the disorderly conduct conviction.
Defendant filed an appeal to the Law Division, which conducted a trial de novo. The Law Division judge reviewed the transcripts of the municipal court trial, watched the videotape of defendant's field sobriety tests and arrest, and listened to the 9-1-1 call. He then made his findings based upon his assessment of the evidence:
I carefully listened to the audiotape, and despite what the police say, it is very clear that on the audiotape her speech is coherent. It is appropriate. There is no slurred speech. . . . She was coherent, I understood every word she said. There was no indication whatsoever on the 9-1-1 tape that she was intoxicated.
We then move to the videotape of her arrest, and when I look at that videotape, I'm struck by the fact that over the 18 or so minutes that she was being questioned by the police, she was coherent. She was standing still. . . . [The officers] looked more like they were agitated or nervous [than] she did. . . . She was standing erect, both feet on the ground. Her clothes were not a mess. Her hair was not out of place. She had all of the appearance of someone who was not drinking, and certainly someone who was not intoxicated.
Now, the test is administered in front of . . . a liquor store, and there are people going back and forth passing her. So to the extent that there is any movement of her when she is performing the objective tests, I'm satisfied that it was . . . just as likely caused by the passage of pedestrian traffic as anything else. . . . [P]eople were walking past her and it is only natural when you are standing on one foot trying to balance yourself that you would be aware . . . of the circumstances that you are in and the people walking past you. The performance of those tests by her on the video don't [sic] indicate to me that she was intoxicated at all.
The Law Division judge discounted the officers' claims that defendant had the smell of alcohol on her breath, finding it was likely that defendant "had the one glass of wine that she admitted to and that she was not intoxicated at the ...