NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-17-12.
Rem Zeller Law Group, attorneys for appellant (James B. Seplowitz, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson and Sabatino.
Defendant Cristin A. Lucena appeals from her conviction for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. The conviction was based upon defendant's 0.153 blood alcohol content ("BAC") level, as shown by testing conducted on her blood following her involvement in a two-vehicle collision. Among other things, defendant challenges the denial of her pretrial motion to suppress evidence, arguing that the police lacked probable cause to arrest her after she performed field sobriety tests. Defendant further argues that her BAC level is unreliable because of alleged errors in the drawing, storing, and testing of her blood sample.
The pertinent facts, in brief, are as follows. At about 10:20 p.m. on April 2, 2011, defendant was involved in an accident with another vehicle on the Palisades Interstate Parkway. According to an eyewitness, defendant was driving an SUV approximately 85 to 90 miles per hour before she lost control of her Nissan SUV and struck the other driver's Toyota Sequoia. Although no one was seriously injured, there was extensive property damage to both vehicles.
A police officer responding to the scene of the accident detected an odor of alcohol emanating from defendant's breath. Her eyes appeared bloodshot, and she refused to speak to the officer. Based upon his experience and training, the officer suspected that defendant was intoxicated. He accordingly administered a series of field sobriety tests.
Although defendant satisfactorily performed most of the field sobriety tests, she did not follow instructions when performing the heel-to-toe test. She also was unable to hold her leg six inches off the ground while counting to thirty. When she performed the horizontal gaze nystagmus ("HGN") test, another police officer observed her eyes were involuntarily jerking.
Both officers concluded that defendant was under the influence of alcohol. She consequently was arrested and transported to a local hospital where she consented to having her blood drawn. The certified lab test results revealed, as we have already noted, a 0.153 BAC reading, well in excess of the 0.08 allowable limit under N.J.S.A. 39:4-50.
Defendant moved to suppress the laboratory results for various reasons. After considering testimony at the suppression hearing from the two officers and a defense expert on field sobriety tests, the municipal judge, Hon. Roy F. McGeady, J.M.C., denied the motion to suppress. In his extensive oral opinion, Judge McGeady found, among other things, that the totality of the circumstances supported the State's position that there was probable cause to conclude that ...