STATE OF NEW JERSEY v. WILLIAM A. WARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3967-04T33967-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. WARD,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex

County, Indictment No. MA-2004-118.

Thomas J. Morgan, attorney for

appellant.

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Joan E. Love,

Assistant Prosecutor, on the brief).

PER CURIAM

The Bloomfield Township Municipal Court convicted defendant William Ward of driving while intoxicated. N.J.S.A. 39:4-50. Defendant's conviction was reviewed de novo by the Law Division and affirmed. Defendant now appeals to this court, arguing: (1) Judge John Kennedy erred when he considered the breathalyzer results "because the Trooper failed to follow the required procedures in operating the machine;" (2) the field sobriety tests were not properly conducted and the trooper's testimony was vague and does not support a finding of intoxication; (3) the State failed to prove operation of, or intent to operate, the vehicle; and (4) the Law Division should have drawn an inference against the State for its failure to have both troopers who were at the scene testify. We affirm.

We summarize the following circumstances which led to defendant's arrest. At approximately 11:30 p.m. on an evening in early May, two State troopers patrolling the Garden State Parkway saw defendant's car parked on the side of the Parkway near Bloomfield Township. Defendant was asleep at the wheel with the engine running. The officers awoke defendant and asked some preliminary questions. Defendant's speech was slurred and his answers unintelligible. Defendant's breath smelled of alcohol, he was flushed, and had a runny nose and red watery eyes. Later, defendant explained that he had taken a decongestant earlier in the day, but he was not sick and had no injuries. At trial, however, defendant claimed he had taken the decongestant because he had a cold and felt feverish. Defendant also later admitted that he had consumed three vodka drinks with dinner that evening at a restaurant in Paramus between 6:30 and 9:45 p.m.

When directed to step outside and move to the front of his vehicle, defendant leaned with his right hand on the car as he walked slowly forward. Defendant stood swaying at the front of his vehicle. Three field sobriety tests were conducted. In the first, the Horizontal Gaze Nystagmus Test, an officer observed defendant's visual ability to track the movement of the officer's finger. In the second test, the trooper asked defendant to walk nine paces heel to toe in a straight line, and then turn and retrace his steps. Defendant leaned against the vehicle while the officer explained the test. Defendant then staggered, raised his arms for balance, failed to touch heel to toe on six of the nine steps, turned improperly, and after turning failed to touch heel to toe on every subsequent step. In the third test, the trooper asked defendant to raise one foot and stand stationary on the other for thirty seconds. After two attempts, defendant was unable to perform this task and told the trooper, "I can't do this." At trial, defendant claimed he could not do this test because he suffered from sciatica. After defendant's poor performance of the three field sobriety tests, he was arrested and taken to police barracks where two breathalyzer tests were administered, resulting in .09 readings.

Defendant's first argument on appeal is that the breathalyzer results were unreliable because the trooper did not gauge the volume of the test ampoule after he snapped it open, thus violating step three of the breathalyzer check list, N.J.A.C. 13:51-3.6(a)(2). Defendant's expert explained at trial that this was a critical error because liquid may have been lost when the trooper opened the ampoule, which would have produced an inaccurate result.

We need not address defendant's breathalyzer contention because, in our view, the trooper's observations alone were sufficient to sustain defendant's drunken driving conviction. We recognize, as did the Municipal Court and Law Division, that the Horizontal Gaze Nystagmus test has not been shown to be scientifically reliable, and alone could not support a finding of intoxication. See State v. Doriguzzi, 334 N.J. Super. 530, 533 (App. Div. 2000); but see State v. Maida, 332 N.J. Super. 564, 571-74 (Law Div. 2000). Nevertheless, to prove intoxication, the testimony of an arresting officer indicating defendant's "physical coordination or mental faculties" were impaired, if believed, would be sufficient. State v. Emery, 27 N.J. 348, 355 (1958).

Although the trooper may not have been able to recall minute details with particularity, the officer's testimony provided a sufficiently complete and vivid account of defendant's behavior and performance during the tests and at the scene. The detail provided regarding the tests, along with the additional factors highlighted in the trooper's decision to arrest defendant, is "adequate evidence of deleterious effect upon physical coordination attributable to liquor." See State v. Johnson, 42 N.J. 146, 166 (1964). Thus, we agree with Judge Kennedy who found that "even if the breathalyzer tests were to be thrown out, an alternative finding which would support intoxication in this case is the officer's observations."

Defendant's argument that the State failed to prove operation of the vehicle is frivolous. Unlike State v. Daly, 64 N.J. 122, 124 (1973), where defendant was found asleep in his car outside a tavern, with the engine running, in this case defendant was found on the shoulder of the Garden State Parkway, which is a limited access roadway. That circumstance alone, without any admission by defendant, is sufficient to infer operation.

Finally, defendant argues that the State's failure to have the second trooper testify should be construed against the State. This is another frivolous argument. State v. Clawans, 38 N.J. 162, 171 (1962), only applies when the omitted "testimony would have been superior to that already utilized." That is not the case here.

 
Affirmed.

Defendant was also convicted of improper parking on a highway, N.J.S.A. 39:4-138, which conviction was merged with the drunken driving conviction.

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A-3967-04T3

December 15, 2005