NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 003-05-11.
Cillick & Smith, attorneys for appellant (Edward W. Cillick, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (William P. Miller, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Following a trial de novo in the Law Division, defendant Campo Araque was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50. He appeals. As this was, at least, his fourth such conviction, defendant was sentenced to 180 days' jail time, to be served in the Bergen County Jail, and a ten-year suspension of his driver's license. In addition, the judge imposed a $1006 fine, a $100 surcharge, a $50 VCCB assessment, a $75 SNSF penalty, a $100 payment to the DDE Fund, $33 in costs and installation of an interlock device during his suspension and for three years upon reinstatement.
The municipal court judge credited the arresting officer's testimony that he was traveling east on Madison Avenue in Cresskill when he saw defendant, who was traveling west, partially cross the double yellow lines and enter into the eastbound lane and then return to the westbound lane of travel. The officer turned to follow defendant and observed him enter the Knickerbocker Road traffic circle. The officer watched as defendant traveled once around the circle before exiting northbound on Knickerbocker Road. The officer pulled defendant over and requested backup. The time was 2:27 a.m.
Upon speaking to defendant, the officer immediately noticed the smell of alcohol on his breath. Defendant told the officer he had come from Union City and was going to Rochelle Park. The officer noted defendant's watery, bloodshot eyes and watched as he slowly and fumblingly produced his license and multiple insurance cards. Defendant did not produce his registration and the officer asked for it again. Defendant rummaged through his glove box for the document. Although the officer could clearly see the registration among the items in the glove box, defendant told the officer he could not find it.
Back-up arrived as the arresting officer was asking defendant to get out of the car. The second officer also testified to events at the scene and police headquarters. The municipal judge found both officers credible and coherent. The second officer testified that he noticed an odor of alcohol emanating from defendant. The officers testified that they had spoken English to defendant, who responded in English. The arresting officer could speak Spanish, a fact known to the backup officer. Although both officers noticed defendant's accent, neither had any difficulty communicating with him. Defendant's words were slurred, but he answered questions in English and readily followed their instructions.
Both officers testified that defendant used the roof of the car to steady himself as he got out of the vehicle, and leaned on the officers as he crossed the street at their request. Both officers testified to the arresting officer's instructions to defendant as to how to perform the field sobriety tests and his demonstration of those maneuvers. Although defendant attempted to perform the tests, he could not do so. As defendant bungled the one-legged stand, he apologized to the arresting officer, saying in English, "Sorry, Officer, I made a big mistake tonight."
Defendant was arrested and transported to police headquarters. As the officers were conducting an inventory of the contents of defendant's wallet, they discovered a second driver's license and other cards in a different name. The license defendant had produced at roadside was a false one. Defendant's own license had been suspended on a prior conviction for DWI.
A third officer testified to his attempts to administer the Alcotest to defendant. The municipal court judge likewise found this officer forthright and credible. The officer testified that he filled out several forms with defendant over which they conversed in English. The officer testified that defendant answered "no" to whether he was on alcohol or drugs and made no response to the officer's question about medication. The officer stated that defendant repeatedly grabbed his arm to steady himself as the officer escorted defendant to the ...