STATE OF NEW JERSEY v. MARY ELLEN BARRETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0063-05-T40063-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARY ELLEN BARRETT,

Defendant-Appellant.

______________________________________

 

Argued April 5, 2006 - Decided May 24, 2006

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 04-124.

Robert M. Schechter argued the cause for appellant (Robert M. Schechter & Associates, attorneys; Mr. Schechter, on the brief).

Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mary Ellen Barrett appeals from her convictions, after a trial de novo in the Law Division, R. 3:23-8(a), for driving while intoxicated (DWI) and careless driving.

The evidence presented in municipal court, if credited, is as follows. On September 17, 2004, around 7:21 p.m., defendant was involved in a one-car accident on Meyersville Road. Patrolman John Kiseli of the Long Hill Township Police Department responded to the scene of the accident. When he arrived, he observed a woman, who he later identified as defendant, walking around a vehicle with heavy front-end damage. The driver's side air bags had deployed and the front windshield was blown out. Debris from the vehicle was in the roadway. It appeared to Officer Kiseli the vehicle had struck a utility pole, which he observed was snapped in half. Defendant reportedly struck her head on the windshield. She sustained facial lacerations, including a small abrasion on her nose, as well as an injury to her shoulder and hand. Kiseli called the first aid squad, which arrived shortly thereafter and treated defendant at the scene. The fire department and duty wrecker were also called to the scene.

Officer Kiseli asked defendant what happened. She told him that she either reached for or dropped a lit cigarette. She stated that as she reached for the lit cigarette, she crashed into the utility pole. While defendant was talking, Officer Kiseli noticed her breath smelled of alcohol and her eyes were bloodshot and watery. He asked defendant whether she had been drinking. Defendant told him she had consumed two glasses of wine over several hours. Defendant also informed Officer Kiseli that she had prescriptions for Zoloft, Xanax, Nexium, and Lipitor.

Officer Kiseli then administered various roadside sobriety tests that were captured on video by the camera in the patrol car. First, he asked defendant to recite the alphabet, which she did properly. Second, he asked defendant to perform the finger dexterity test, which requires the touching of the thumb to the other four fingers while counting the fingers. Defendant did not follow Kiseli's instructions for performing this test and was unable to perform this test well. However, it was only after defendant attempted to perform this test that Officer Kiseli then noticed defendant had sustained an injury to her hand. Third, the officer asked defendant to walk heel-to-toe in a straight line. Before conducting the test, Officer Kiseli asked defendant if she had any injuries or conditions that would hinder her ability to perform the test. Defendant informed the officer she had an equilibrium problem. Defendant did not perform well and slipped off the pavement on occasion. Next, Kiseli asked defendant to stand on one leg while counting to thirty. She swayed and at one point almost fell. After standing on one leg for about sixteen seconds, she put her foot back on the ground. Finally, Kiseli asked defendant to arch her back with her eyes closed. As she did so, she swayed from side to side.

At that point, Officer Kiseli arrested defendant and charged her with driving while intoxicated, N.J.S.A. 39:4-50(a); careless driving, N.J.S.A. 39:4-97; reckless driving, N.J.S.A. 39:4-96; and knowingly operating a motor vehicle without insurance, N.J.S.A. 39:6B-2. Defendant was transported to police headquarters where a breathalyzer test was administered. Defendant was processed and released.

Defendant pled not guilty to the charges. Trial proceeded in Long Hill Township Municipal Court on May 19, 2005. The municipal judge found defendant guilty of careless driving and driving while intoxicated, but not guilty of reckless driving. The uninsured motorist charge was dismissed after defendant produced proof of insurance. The judge merged the two convictions for sentencing purposes, suspended defendant's license for two years, and imposed mandatory fines and penalties.

Defendant filed an appeal, which was heard de novo in the Law Division on August 25, 2005, before Judge Harper. The judge found defendant guilty of careless driving and driving while intoxicated and memorialized his decision in a written opinion.

On appeal, defendant raises the following arguments:

POINT I

THE STATE FAILED TO PROVE ITS CASE ON THE CHARGE OF CARELESS DRIVING BEYOND A REASONABLE DOUBT.

POINT II

THERE WAS NO EVIDENCE THAT DEFENDANT INGESTED MEDICATION THAT WHEN COMBINED WITH ALCOHOLIC BEVERAGE WOULD RENDER HER IN VIOLATION OF N.J.S.A. 39:4-50.

POINT III

THE STATE HAS FAILED TO PROVE ITS CASE ON THE CHARGE OF DRIVING WHILE INTOXICATED BEYOND A REASONABLE DOUBT.

Based upon our review of the record, we are satisfied that the findings of the Law Division judge are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with those findings. See State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We add only the following.

Defendant contends that her conviction for careless driving was based solely upon the fact of the accident itself, a basis for a careless driving conviction we squarely rejected in State v. Lutz, 309 N.J. Super. 317, 326-27 (App. Div. 1998).

In Lutz, supra, the defendant's vehicle collided with another vehicle traveling in the opposite direction. Id. at 321. The defendant told the investigating officer that just before the impact, his vehicle had slid on the wet pavement. Ibid. The Law Division judge stated the defendant "quite clearly operated his vehicle carelessly" and failed to operate his vehicle with due caution. Id. at 326. We reversed the defendant's conviction, concluding that aside from the accident itself, the State only presented the defendant's statement that his vehicle slid on the wet highway before the accident occurred. Id. at 326-27.

Likewise, defendant in the instant matter contends the only evidence the State presented about the alleged careless driving was the mere fact that defendant's vehicle struck a utility pole. Consequently, defendant alleges the courts below mistakenly used the doctrine of res ipsa loquitur. We disagree. Defendant admitted she momentarily shifted her attention to a lit cigarette that fell to the floor. There was no indication that defendant was unable to briefly pull the vehicle to the side of the roadway so she could stop and then pick up the cigarette. N.J.S.A. 39:4-97 states, "A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving."

Defendant's admission that she reached for the cigarette while driving indicates she did not operate her vehicle with due caution, but rather was careless. Thus, there was more than simply the fact of the accident to support defendant's conviction. Lutz, supra, 309 N.J. Super. at 326-27.

We also reject defendant's contention that expert testimony was required to establish the ingestion of medication, when combined with the ingestion of alcohol, would render defendant intoxicated while operating her vehicle within the meaning of N.J.S.A. 39:4-50. The trial court found:

[P]ursuant to State v. Hudes, [ 128 N.J. Super. 589 (Cty. Ct. 1974),] even in the absence of any breathalyzer results, it is sufficient evidence that the defendant is intoxicated to a prohibited degree which could impair his ability to operate his vehicle, and thus sustain the conviction, based upon: the cumulative effect of the driving observed by the arresting officer, the inability of the defendant to promptly produce his operator's license and vehicle registration, his confused mental state, his performance on the several physical coordination tests, the strong odor of alcohol on defendant's breath, his admitted consumption of alcoholic beverages and the observations of several other experienced police officers. Most of these factors are present in this case. Defendant drove her vehicle off the road and into a telephone pole. She emitted an odor of alcohol, failed to perform successfully the psycho-physical tests and was observed by an experienced police officer. Further, she admitted that she was taking numerous medications, in combination with the alcohol she also admitted consuming. Additionally, as can be seen on the video recording, the Officer discussed with Defendant the dangers of mixing alcohol and certain prescription medications, specifically Zoloft and Xanax.

It is quite evident from these findings that the trial court's decision was based upon defendant's operation of her motor vehicle, her admission that she had ingested alcohol, and the officer's observations of the defendant at the scene. A conviction for drunk driving may be based solely upon the fact of operation, a defendant's admission of alcohol consumption, and an officer's observation of the driver at the scene. State v. Nemesh, 228 N.J. Super. 587, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). Thus, even assuming defendant, in addition to consuming alcohol, also ingested prescription medication, the effect of the combination of alcohol and prescription medication upon defendant's driving was irrelevant and was not, in light of the other evidence, an element of the charge the State was required to prove. See State v. Snyder, 337 N.J. Super. 59, 65 (App. Div. 2001); see also State v. Cleverly, 348 N.J. Super. 455, 465 (App. Div. 2002); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001); State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991).

 
Affirmed substantially for the reasons set forth in Judge Harper's written decision of August 30, 2005.

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A-0063-05T5

May 24, 2006