Opinion
DOCKET NO. A-5739-13T4
03-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARA J. SLATER, Defendant-Appellant.
Martine & Katz Scanlon, P.A., attorneys for appellant (Sarah Martine Belfi, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-01-14. Martine & Katz Scanlon, P.A., attorneys for appellant (Sarah Martine Belfi, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Lara J. Slater appeals from a June 26, 2014 order of the Law Division finding her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath-test, N.J.S.A. 39:4-50.4a. Defendant was sentenced to a two-day jail term, was directed to attend the Intoxicated Driver's Resource Center and install an ignition interlock device, and was ordered to pay $1603 in fines, costs, surcharges, penalties, and fees. The court suspended defendant's driving privileges for two years on each of the charges and directed that the suspensions be served consecutively. Following our review of the arguments advanced on appeal and in light of the record and applicable law, we affirm.
Defendant does not appeal her June 26, 2014 convictions or sentences in the Law Division for speeding, N.J.S.A. 39:4-98, and careless driving, N.J.S.A. 39:4-97. As a result, we do not address those convictions here. The court's June 26, 2014 order incorrectly identifies the speeding statute as N.J.S.A. 39:4-98.19.
I.
We summarize the evidence presented during the trial before the municipal court. On October 21, 2012, at 2:06 a.m., Stratford Police Department Sergeant Robert Kelly was on duty and utilizing a radar device, which measured the speed of defendant's vehicle at fifty-six miles per hour in a forty mile per hour speed zone. Kelly observed defendant's vehicle "straddling the white hash divider that separated the curb and passing lane of eastbound Route 30," and weave over the divider. Kelly followed the defendant's vehicle in his patrol car and observed defendant "continue to weave over the white hash divider and back into [her] lane of traffic."
Kelly conducted a motor vehicle stop of defendant's vehicle, stood outside of the driver's side window, and advised defendant that she was speeding and "tripping over the white hash divider." Kelly detected a "very strong odor of an alcoholic beverage emanating from [defendant's] breath" and observed that defendant's speech was slurred, her eyes were red and watery, and her hand movements were slow when she produced her credentials. Kelly also observed a male passenger, later identified as Steven Rulon, seated in the right passenger seat of the vehicle.
Kelly requested that defendant step out of the vehicle onto the adjacent sidewalk. As she exited the vehicle, defendant leaned heavily on the interior of the driver's side door for support and walked slowly and unsteadily to the sidewalk. Kelly stood face-to-face with defendant on the sidewalk and smelled a strong odor of alcohol. Kelly informed defendant that he smelled a strong odor of alcohol emanating from her breath, and asked if defendant had been drinking that evening. Defendant responded that she had one drink prior to leaving her home.
Kelly testified that he asked defendant if she had any injuries which would prevent her from performing field sobriety tests, and she stated that she did not. Kelly then had defendant perform two field sobriety tests. During defendant's performance of the walk-and-turn test, Kelly observed that defendant failed five of the test's eight requirements. Defendant failed to properly perform three of the four requirements of the one-leg stand test. Kelly requested that defendant take a portable breath-test, but she refused.
Prior to conducting the field sobriety tests, Kelly performed a horizontal gaze nystagmus (HGN) test to measure defendant's pupils for nystagmus. After defendant failed the six steps of the HGN test, Kelly concluded there was probable cause to believe defendant was intoxicated. During the performance of the HGN test, Kelly continued to smell alcohol on defendant's breath and observed defendant swaying. The Law Division judge did not consider defendant's performance on the HGN test in his determination of defendant's guilt on any of the charges. State v. Doriguzzi, 334 N.J. Super. 530, 546-47 (App. Div. 2000) (holding the HGN test is not admissible at trial as substantive evidence of a person's intoxication).
Kelly placed defendant under arrest for DWI, advised her of her Miranda rights, and transported her to the police station. Kelly detected a strong odor of alcohol in his vehicle as he drove defendant to the station.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Kelly testified that, after arriving at the station, he read to defendant the entire New Jersey Attorney General's Standard Statement for drinking and driving violations, which Kelly referred to as the Implied Consent Form. As Kelly read the form to defendant, her demeanor changed from sarcastic to crying, and she was uncooperative and indifferent. Kelly testified that he asked defendant if she was willing to provide a sample of her breath, and defendant replied with a "flat no." Kelly advised defendant that she would be charged with refusal, and then processed defendant's arrest, which included completion of the Stratford Police Department Drinking Driver Questionnaire.
Kelly testified that he asked defendant if she was ill, and she indicated that she had an immune deficiency disorder. Kelly asked defendant if she suffered from any condition that would prevent her from providing a breath sample, and defendant responded "no." Defendant did not report any injuries and never told Kelly that she had asthma.
Kelly advised defendant of her Miranda rights a second time and asked defendant if she had any alcoholic drinks before he stopped her vehicle. Defendant responded that she had one alcoholic drink at midnight, a "7&7," which is "Seagrams 7 gin with 7-up."
As part of Kelly's investigation and processing of defendant, he prepared a New Jersey Drinking and Driving Report, which contained his observations that defendant had been swaying and had saggy knees, her feet were placed wide apart, her speech was slurred, her eyes were bloodshot and watery, her clothes were mussed, her hand movements were slow, and her demeanor was indifferent and emotional.
During cross-examination, Kelly stated that he was trained in the State Attorney General's requirements in handling domestic violence cases and had responded to many domestic violence disputes. Kelly acknowledged that a victim of domestic violence would possibly have watery eyes if she was crying, would stutter her speech, but would not slur her speech, and could possibly swerve her vehicle if the victim was having an argument with a passenger.
Kelly testified that after he requested defendant to exit her vehicle and stand on the sidewalk, defendant hinted that she was arguing with her passenger, but would not elaborate or cooperate with Kelly and provide him with any more information. Kelly did not observe defendant crying, appear fearful or have any apprehension, or ask for any assistance, and she did not indicate to Kelly that Rulon had been screaming at her. Kelly did not recall if he discussed the argument with Rulon, but stated that he was cooperative when Kelly spoke to him.
Rulon testified that on October 20, 2012, he was in a relationship with defendant, was at defendant's apartment, and that she had no more than two drinks of mixed ginger ale and Seagrams. Rulon and defendant had an argument, so he left defendant's apartment, but defendant picked him up an hour later and they continued arguing in defendant's car. Rulon did not know if defendant had anything to drink after he left her apartment.
Rulon testified that after defendant picked him up, he threw his backpack into the backseat of defendant's car, but it hit defendant's arm causing the car to swerve. Rulon said that after Kelly stopped defendant's vehicle and defendant stepped out of it, he heard defendant inform Kelly that she had asthma and had trouble breathing, and that she and Rulon were arguing. Rulon did not hear defendant ask the officer for assistance or make any other accusations. Rulon observed defendant perform the field sobriety tests and testified that defendant performed them properly.
Defendant testified that on October 20, 2012, she had one glass of "7&7." Defendant explained that she and Rulon had an argument that night, and defendant began to drive Rulon home but dropped him off in a parking lot because he was yelling in her face in the car. After ten minutes, defendant returned and picked up Rulon. He reentered her car, yelled at her, took off his sweatshirt, and put his fist close to her face, which caused defendant to swerve her car. Defendant cried during the time she was in her car and her eyeliner smeared on her face.
Defendant said that after she was stopped by Kelly, she exited her vehicle, told him she was happy he pulled her over, and described the fight she was having with Rulon. Defendant testified that Kelly ignored what she said and proceeded with the field sobriety tests. According to defendant, Kelly never asked her if she suffered from any injuries before she performed the field sobriety tests.
Defendant stated that after she completed two sets of sobriety tests, one set in the street and one set on the sidewalk, she refused to submit to a breath-test because she was having an asthma attack and Kelly handcuffed her. Defendant believed she passed all of the sobriety tests, and that Kelly's observations of her performance on the sobriety tests were inaccurate. Defendant said she was terrified during the sobriety tests because of her argument with Rulon and because the officer did not care about her situation.
Defendant testified that at the police station she told Kelly about injuries she sustained from a 2005 car accident and about an immune disorder. Defendant acknowledged Kelly asked her at the station if she would submit to a breath-test, and she refused because of her asthma condition. Defendant introduced into evidence doctor's notes and prescriptions confirming she had asthma.
Defendant denied being informed of the New Jersey Attorney General's Standard Statement for Motor Vehicle Operators and that she would be charged with refusal to take a breath-test. Defendant testified she would have taken the breath-test if she was made aware of the consequences for refusing it.
After the presentation of evidence, the municipal court judge made detailed credibility determinations and found that Kelly was credible and believable. The court found defendant's demeanor was one of laughing and dismay, that she was hostile on direct examination, and that she was sarcastic and antagonistic in her tone and demeanor on cross-examination. The court found defendant's testimony was "hostile, self-serving, and at times, sarcastic and belligerent," and Rulon's testimony was tainted, inconsistent, and not credible.
The municipal court judge found that Kelly had probable cause to stop defendant's vehicle, that defendant had consumed alcohol prior to driving the vehicle, that defendant performed poorly on the field sobriety tests, that Kelly read the Implied Consent Form in its entirety to defendant, and that defendant refused to submit to a breath-test. The municipal court found defendant guilty beyond a reasonable doubt of refusing to submit to a breath-test in violation of N.J.S.A. 39:4-50.4a and DWI in violation of N.J.S.A. 39:4-50, and imposed sentence on those offenses.
Defendant appealed her convictions to the Law Division, which conducted a de novo trial on June 25, 2014. The judge found defendant guilty of DWI and refusal to submit to a breath-test and imposed the same sentences as those imposed by the municipal court. This appeal followed.
Again, we do not address defendant's convictions in the Law Division for speeding, N.J.S.A. 39:4-98, and careless driving, N.J.S.A. 39:4-97, because defendant does not challenge those convictions on appeal.
II.
On appeal, defendant argues:
POINT I:
THIS MATTER MUST BE DISMISSED AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF GUILT BEYOND A REASONABLE DOUBT FOR BOTH THE DRIVING WHILE INTOXICATED AND REFUSAL CHARGES AGAINST THE DEFENDANT.
A. The State Failed to Prove An "Under the Influence" Violation of N.J.S.A. 39:4-50(a) Beyond A Reasonable Doubt.
i. Sergeant Kelly Ignored the Defendant's Pleas for Help And His Testimony Regarding the Defendant's Demeanor and Appearance On the Night in Question Do Not Constitute Proof Beyond a Reasonable Doubt of the Defendant's Intoxication.
ii. In Addition to the Defendant's Appearance and Demeanor, The Results of the Field Sobriety Tests Offered At Trial Do Not Constitute Proof Beyond a Reasonable Doubt of the Defendant's Intoxication.
B. The State Failed to Prove that Defendant was Guilty under N.J.S.A. 39:4-50.2, Beyond A Reasonable Doubt, As it Did Not Prove That Sergeant Kelly Read The Entire Informed Consent Form As Required.
POINT II:
IF NOT DISMISSED IN ITS ENTIRETY, THIS MATTER MUST BE REMANDED TO THE LAW DIVISION AS THE TRIAL JUDGE FAILED TO ADHERE TO THE REQUIRED DE NOVO STANDARD OF REVIEW.
Defendant was not found guilty under N.J.S.A. 39:4-50.2. She was found guilty of refusal to submit to the breath-test under N.J.S.A. 39:4-50.4a. --------
On an appeal taken from the Law Division's final decision, our review "is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). This requires "'consideration of the proofs as a whole,' and not merely those offered by the defendant." State v. Kuropchak, 221 N.J. 368, 383 (2015) (quoting Johnson, supra, 42 N.J. at 162). "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid. (alteration in original) (quoting R. 2:10-2). Like the Law Division, we defer to credibility findings made by the trial court. Id. at 382.
When the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to 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) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
We turn first to defendant's argument that the proofs presented at trial were insufficient to establish beyond a reasonable doubt that defendant committed the offenses for which she was convicted. We disagree. Based upon our review of the record, we are convinced the evidence supports the Law Division's determination that defendant committed the offenses of DWI, N.J.S.A. 39:4-50, and refusal to submit to a breath-test, N.J.S.A. 39:4-50.4a.
"A conviction for DWI requires proof beyond a reasonable doubt." Kuropchak, supra, 221 N.J. at 382. A violation of N.J.S.A. 39:4-50 can be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Howard, 383 N.J. Super. 538, 548 (App. Div.) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004)), certif. denied, 187 N.J. 80 (2006). "[B]ecause sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication." State v. Bealor, 187 N.J. 574, 585 (2006).
It is well established that an officer's subjective observations of a defendant provide sufficient grounds to sustain a DWI conviction. See, e.g., State v. Cryan, 363 N.J. Super. 442, 454-56 (App. Div. 2003) (sustaining DWI conviction on officer's observation of bloodshot eyes, strong odor of alcohol, hostile demeanor, failed field sobriety tests, and inconsistent statements); State v. Cleverley, 348 N.J. Super. 455, 457, 465 (App. Div. 2002) (sustaining DWI conviction on defendant's operation of a motor vehicle without headlights on, the police officer's detection of an alcoholic odor on defendant's breath, defendant's inability to perform field sobriety tests, combativeness, slurred speech, and swaying); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction on officer's observations of defendant's watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and admission to drinking alcohol earlier in the day); State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993) (sustaining DWI conviction based on officer's observations of defendant's slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes, and strong odor of alcohol on defendant's breath).
Here, the evidence showed that defendant operated her vehicle in an erratic manner. She does not contest that there were sufficient proofs establishing she committed the offenses of speeding, N.J.S.A. 39:4-98, and careless driving, N.J.S.A. 39:4-97. She admitted drinking alcohol prior to driving. Kelly detected the strong odor of alcohol from defendant's breath and observed defendant's watery and red eyes, slurred speech, swaying, slow hand movements, and poor performance on the field sobriety tests. We are therefore convinced there was sufficient credible evidence in the record supporting the Law Division's finding that defendant was guilty of DWI beyond a reasonable doubt.
We are also convinced there was sufficient evidence supporting the Law Division's finding that defendant refused to submit to a breath-test. To sustain a conviction for refusal under N.J.S.A. 39:4-50.4a, the State must prove beyond a reasonable doubt that
(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.Defendant argues the State failed to prove defendant refused to take a breath-test because she was not read the entire New Jersey Attorney General's Standard Statement for Motor Vehicle Operators, specifically the provision that advises a driver of the consequences for refusing to take a breath-test. She testified at trial that the form was not read to her.
[State v. Marquez, 202 N.J. 485, 503, (2010) (citing N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a(a)).]
We reject defendant's argument because there was sufficient credible evidence supporting the Law Division's determination that Kelly read the New Jersey Attorney General's Standard Statement for Motor Vehicle Operators prior to defendant's refusal to take the breath-test. Kelly testified he read the statement in its entirety to defendant, and the municipal court and Law Division found Kelly's testimony was credible. Under the two-court rule, we will not disturb the courts' credibility determinations here because defendant has not demonstrated a "very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474.
The evidence also showed that after Kelly read the form to defendant, she refused to take the breath-test. "[A]nything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the [breath] test constitutes a refusal to do so." Marquez, supra, 202 N.J. at 504 (quoting State v. Widmaier, 157 N.J. 475, 497 (1999)). We are therefore satisfied there was sufficient credible evidence supporting the Law Division's finding that defendant was guilty beyond a reasonable doubt of the offense of refusal to submit to a breath-test. N.J.S.A. 39:4-50.4a.
Defendant last contends that the Law Division judge failed to conduct a de novo review of the matter and failed to "determine the case completely anew on the record made in the Municipal Court." Johnson, supra, 42 N.J. at 157. We disagree.
Under Rule 3:23-8(a)(2), an appeal from a municipal court requires the Law Division to make independent findings of fact and conclusions of law de novo, based on the record from the municipal court. Due to the municipal court's unique opportunity to judge live testimony, deference is given to credibility findings of the municipal court. Clarksburg Inn, supra, 375 N.J. Super. at 639. This is especially true when a municipal court's "credibility findings . . . are . . . influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Similarly, appellate courts are to defer to the municipal court's credibility findings. Kuropchak, supra, 221 N.J. at 382.
Here, the determination of defendant's guilt turned solely upon the credibility of the witnesses. The Law Division judge expressly and properly deferred to the municipal court judge's extensive and detailed credibility findings and made sufficient findings that the odor of alcohol, slurred speech, watery eyes, and failure to perform the field sobriety tests supported defendant's conviction for DWI. The court also found that defendant was given the warnings regarding refusal but refused to submit to the breath-test. While the court couched its final determinations in terms of "sustain[ing]" the municipal court convictions, we are convinced its credibility determinations and factual findings provided defendant with a de novo finding of guilt of DWI and refusal beyond a reasonable doubt.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION