July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CRISTIN A. LUCENA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 defendant had committed a DWI offense and to arrest her. Hence the fruits of the ensuing blood testing were admissible.
The matter then proceeded to trial. The State presented testimony from the phlebotomist who had extracted defendant's blood at the local emergency room, the police sergeant who had transported defendant's blood to the State Police laboratory, and the forensic scientist who had tested the sample at the laboratory.
In the defense case, the municipal judge heard testimony from defendant's father, who had come to the accident scene, observed his daughter perform the field sobriety tests, and accompanied her to the hospital. According to the father, who is a police officer from another jurisdiction, his daughter had not exhibited sufficient signs of intoxication and she adequately completed the field sobriety tests. The defense also called as an adverse witness the police officer who had first responded to the accident.
After considering these proofs, the municipal judge found defendant guilty of DWI beyond a reasonable doubt. Among other things, Judge McGeady rejected defendant's contention that her blood samples had been compromised at the State Police laboratory. Although the municipal judge noted the defense's claim that the blood samples had been left unattended at the hospital for about five minutes, he found this did not affect the admissibility of the samples.
Upon de novo review, the Law Division judge, Hon. Eugene H. Austin, J.S.C., likewise denied the suppression motion and found defendant guilty as charged.
On appeal, defendant raises the following points:
THE COURT BELOW ERRED IN FINDING CRISTIN LUCENA GUILTY OF DRIVING WHILE INTOXICATED UNDER THE OBJECTIVE PRONG OF N.J.S.A. 39:4-50 DESPITE AMPLE REASONABLE DOUBT REGARDNG THE STERILITY OF THE BLOOD SAMPLE DUE TO THE DEFICIENCIES IN THE DRAWING, STORING AND TESTING OF THE SAMPLE
A. The Blood Test Results Must Not Be Deemed Reliable Since The State's Witnesses Failed To Establish That The Syringe, Blood Vials And Anticoagulants Therein Were Sterile, Contaminant-Free And Properly Constituted.
1. The State Failed To Prove That The Disinfectant Used to Clean Ms. Lucena's Arm Did Not Contain Any Alcohol.
2. The State Failed To Prove That The Instruments Used By The Technicians Were Sterile.
3. The State Failed To Prove That The Blood Sample And Its Additives Were Properly Measured And Constituted.
4. The State Failed To Prove That The Blood Was Properly Mixed With The Additives In The Vial, Even If Such Additives Were Present.
5. The Blood Alcohol Content Cannot Be Deemed Reliable Because It May Have Been Affected By Hemolysis That Could Have Occurred During The Drawing Of The Blood.
B. The Blood Test Results Cannot Be Deemed Reliable Because Of An Actual Breach In The Chain Of Custody.
THE COURT BELOW ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE SINCE THE OFFICERS LACKED PROBABLE CAUSE OF INTOXICATION TO ARREST MS. LUCENA AFTER MS. LUCENA PASSED ALL OF THE FIELD SOBRIETY TESTS AND WAS LUCID, COHERENT AND STEADY
These arguments are without merit. We add only a few comments to amplify the reasoning of Judge McGeady and Judge Austin.
The suppression motion was justifiably denied because there is ample proof that the police had probable cause to arrest defendant for DWI and to have her blood taken for testing. The officers' observations of defendant's breath and bloodshot eyes, the significant damage produced by the collision, the bystander's estimate of defendant's driving speed, and other surrounding circumstances supported the officers' belief that defendant had been under the influence of alcohol.
Even accepting defendant's contention that she essentially completed the field sobriety tests properly, the mere passage of such tests does not foreclose a finding that the circumstances as a whole were indicative of a DWI violation. There is no per se rule that hinges a finding of probable cause solely upon the results of field sobriety tests. See, e.g., State v. George, 257 N.J.Super. 493, 496-97 (App. Div. 1992) (upholding a finding of probable cause in a DWI case, despite the defendant performing field sobriety tests "without error, " because of the "heavy odor of alcohol" on his breath while he was sitting behind the wheel of his parked truck with its lights on and engine running). Moreover, as a reviewing court we must defer considerably to the trier of fact's assessment of the credibility of the testifying officers. State v. Locurto, 157 N.J. 463, 474 (1999).
We need not address with specificity defendant's assorted challenges to the reliability of the blood testing results. Her contentions were amply considered and rejected in Judge McGeady's comprehensive oral opinion. The judge reasonably credited the testimony of the hospital's phlebotomist describing the blood extraction procedures, including how she prepared defendant and used the vials and needle. Her testimony was properly based upon her personal knowledge. State v. Berezansky, 386 N.J.Super. 84, 100 (App. Div. 2006), appeal dismissed, 196 N.J. 82 (2008). Although the vials were not on the phlebotomist's person at all times, they were within her work space and there is no evidence of tampering. The chain of custody of the samples was adequately established by a series of three witnesses who handled the blood samples The State Police laboratory technician corroborated that the integrity of the BAC had been observed and that there was no evidence of micro-clotting fermentation or salting-out.
The municipal judge did acknowledge that defendant's father seemed to be "very candid and credible despite having a natural bias" which led the judge to reject the State's alternative claim of guilt based upon subjective proofs Even so the judge reasonably determined that the elevated BAC level established a per se objective basis for conviction See NJSA 39:4-50.