Opinion
DOCKET NO. A-5540-12T4
06-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL J. DAVIS, Defendant-Appellant.
Thatcher, Passarella & Thatcher, P.C., attorneys for appellant (David A. Thatcher, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Municipal Appeal No. 02-04-2013.
Thatcher, Passarella & Thatcher, P.C., attorneys for appellant (David A. Thatcher, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Daniel J. Davis appeals the Law Division's July 3, 2013 judgment of conviction after a trial de novo for refusal to submit to a breath analysis, N.J.S.A. 39:4-50.4a. The judge reimposed the municipal court penalties of seven months loss of driver's license, a $300 fine, a drunk driving enforcement surcharge of $100, court costs of $33, and the use of an interlock device for six months upon the resumption of defendant's driving privileges. For the reasons that follow, we affirm.
Prior to the municipal trial, the judge denied defendant's motion to suppress, in which he claimed that the officer lacked probable cause for the arrest because adequate proof of operation was wanting.
All the charges resulted from defendant's single-vehicle accident, which occurred at 2:30 a.m. on September 14, 2012, in the City of Wildwood. When Police Officer Donald Boice arrived at the scene, he saw a car "on a curb planted against two planted trees." Defendant was seated a few feet away on the curb on the driver's side of the vehicle. Defendant told Boice that he was not injured and refused medical attention, although the officer observed a minor abrasion or laceration on his left forearm. Both airbags deployed during the accident.
While speaking to defendant, the officer detected the odor of an alcoholic beverage on defendant's breath. Defendant admitted that he had been drinking. He also said that he left a friend's house a few minutes earlier. The officer decided not to conduct field tests at the scene because "[i]t was a safety issue at [that] point" as debris was being cleared away.
Once at the station, after "the required [twenty]-minute observation period," defendant refused to perform any "divided attention tests." The officer then read defendant the Attorney General's Standard Statement for Motor Vehicle Operators (Standard Statement) pursuant to N.J.S.A. 39:4-50.2(e), as revised July 1, 2012.
When defendant was asked if he would provide samples of his breath, he said "yes." The officer testified that he was caught off-guard by that response; he anticipated that defendant would say "no" because he had so clearly stated that he would not participate in any tests regarding his sobriety. As a result, Boice reread the paragraph — this time defendant responded "no."
The officer did not read defendant the next, supplementary paragraph on the form. Defendant argued at trial, and now reiterates on appeal, that the officer was required to do so on the theory that, because the first response was unclear to the officer, it was less than an unequivocal yes. Although not included in defendant's appendix, we assume that the language on the Standard Statement, which the officer omitted, read: "Your answer is not acceptable. The law requires that you submit samples of your breath for breath testing. If you do not answer, or answer with anything other than 'yes,' I will charge you with refusal. Now, I ask again, will you submit to breath testing?" New Jersey Attorney General's Standard Statement for Motor Vehicle Operators -- N.J.S.A. 39:4-50.2(e) (rev. & eff. July 1, 2012) (Additional Statement).
On appeal, defendant raises the following point of error:
I. THE STATE HAS FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS REQUIRED TO SUSTAIN A CONVICTION OF N.J.S.A. 39:4-50.2.
A. The arresting officer lacked probable cause that Defendant Davis had been driving and was under the influence of alcohol.
B. The arresting officer improperly read to the Defendant the New Jersey Attorney General's Standard Statement for operators of a motor vehicle.
C. Defendant Davis did, in fact, agree to submit samples of his breath for testing.
In order to establish the proofs necessary to secure a conviction for refusal, the State must prove:
(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.On appeal, defendant alleges that the State failed to meet its burden of proof with regard to the first, third, and fourth elements.
[State v. Marquez, 202 N.J. 485, 503 (2010) (citing N.J.S.A. 39:4-50.2(e) and -50.4a(a); State v. Wright, 107 N.J. 488, 490 (1987)).]
We review the judgment of conviction mindful that we uphold trial de novo decisions of the Law Division that are supported by sufficient credible evidence in the record. See State v. Stas, 212 N.J. 37, 48-49 (2012). Furthermore, we employ the "two-court rule," under which "appellate courts ordinarily should not . . . alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). Only where the Law Division's findings are so clearly mistaken or unwarranted "that the interests of justice demand intervention and correction" do we review the record anew, drawing our own findings and conclusions. State v. Johnson, 42 N.J. 146, 162 (1964). Finally, "our review of purely legal issues is plenary." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011).
The Law Division judge reiterated the proofs that the State presented regarding probable cause as to operability: that defendant was the only person present at the scene, was found sitting a few feet away from the driver's side of the vehicle, lived at the address at which the vehicle was registered, appeared to have been injured in the accident, was angry with himself, and told the officer that "he had just left a friend's house." Although the judge found some of these facts to be "irrelevant," she considered the following facts sufficient to establish defendant's operation: his immediate presence in the area, residence at the address where the vehicle was registered, and statement about having just left a friend's house. She added that there was adequate probable cause as to operability because of the following circumstances: the one-car accident, odor of an alcoholic beverage, watery and bloodshot condition of defendant's eyes, and admission to drinking. We agree that these proofs were sufficient.
In assessing probable cause, a judge considers the totality of the circumstances. State v. Moore, 181 N.J. 40, 46 (2004). They are viewed "from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J. 570, 585 (2010) (internal quotation marks omitted). Probable cause for driving while under the influence will be found where an officer "had reasonable grounds to believe that the driver was operating a motor vehicle in violation" of the DWI statute. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (internal quotation marks omitted).
The Law Division judge's conclusions were well supported by the record. Defendant smelled of alcoholic beverages, had bloodshot eyes, was upset at what had just occurred, admitted to drinking, and had just been involved during early morning hours in a single-vehicle accident. These facts support the conclusion that he was the operator of the vehicle and had operated it while under the influence. No other reasonable, common sense conclusion could be under the circumstances present when the officer arrived at the scene. See State v. O'Neal, 190 N.J. 601, 612 (2007).
As to defendant's next point, he contends that by virtue of his first response to the Standard Statement confusing Boice, it was less than an unequivocal "yes," thereby necessitating that the officer read him the additional statement. In support of his contention, defendant relies on State v. O'Driscoll, 215 N.J. 461 (2013), where the Court said that, when a defendant challenges an impropriety in the reading of the Standard Statement, the issue is whether the discrepancy is "minor" or one that "reasonably could have affected [the] defendant's choice." Id. at 479. From that premise, defendant asserts that the manner in which the officer read the form materially deviated from a proper reading and affected his choice.
We disagree. The point calls for unwarranted speculation. Up to that point, defendant had refused to submit to any testing. The question that the officer repeated to defendant from the Standard Statement after defendant initially answered "yes" is abundantly clear. The text reads: "I repeat, the law requires you to submit samples of your breath for testing. Will you submit the samples of your breath?" New Jersey Attorney General's Standard Statement for Motor Vehicle Operators -- N.J.S.A. 39:4-50.2(e) (rev. & eff. July 1, 2012) (¶ 9).
Nothing in that paragraph was misleading. The officer's reading in no way could have caused defendant to mistake his choices. To read that paragraph twice was not an error, and the officer was not obliged to read the next and final paragraph unless an ambiguous answer was given. The officer heard "yes," not an ambiguous reply. That the officer went no further is simply immaterial. In this case, the officer correctly interpreted defendant's response as a mistake.
Lastly, defendant contends that, since he first said "yes," he did, in fact, agree to submit samples for analysis and that the officer erred by repeating the question and accepting "no" as his final answer. We find that argument to lack sufficient merit to warrant discussion in a written opinion R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION