STATE OF NEW JERSEY v. WILLIAM G. SWEET

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0091-05T10091-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM G. SWEET,

Defendant-Appellant.

____________________________________

 

Submitted March 1, 2006 - Decided May 4, 2006

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

No. BMA-003-05-05.

Rem Zeller, attorneys for appellant

(James B. Seplowitz, of counsel and

on the brief).

John L. Molinelli, Bergen County

Prosecutor, attorney for respondent

(Brandy Brentari Galler, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment entered following a trial de novo in the Superior Court, Law Division, at which he was convicted of driving while intoxicated, N.J.S.A. 39:4-50. For driving while intoxicated, the trial court suspended defendant's driving privileges for seven months and imposed the appropriate fines, penalties and surcharges. The trial court granted a stay of defendant's sentence pending his appeal to this court. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Officer Carty of the Hillsdale Police Department testified that in the early morning hours of November 12, 2004, he saw a car heading northbound on Kinderkamack Road in Hillsdale at a high rate of speed. According to the record, Kinderkamack Road is a two-lane road; Officer Carty said that when he first observed the car, it was straddling the double yellow line. He agreed that the car did not swerve back and forth. Officer Carty followed the car at a distance and saw it go through an intersection in the face of a red light. Later, the car came to the intersection of Kinderkamack Road and Piermont Avenue, at which there are signs posted that a right turn is not permitted on a red traffic signal. The car nonetheless made such a right turn. Officer Carty followed the car, which had turned onto a side street and then turned around. The driver, later identified as defendant, had pulled the car to the side and turned off its lights, keeping the ignition on. After Officer Carty had driven past and was turning around further down the block, the car pulled away and headed back up to Kinderkamack Road. Officer Carty followed and then put on his overhead lights. Defendant responded by pulling over to the side of the road.

Officer Carty approached the car; when he reached the driver's side window defendant was turned away, evidently going through the glove box. Defendant did not acknowledge the officer's presence for nearly one-half minute. When he did turn to Officer Carty and opened the window, Officer Carty detected a strong odor of alcohol on his breath and saw that his eyes were bloodshot and watery. Defendant produced his driver's license and insurance card. Officer Carty asked defendant whether he had anything to drink; defendant responded that he had had three beers around 6:00 p.m.

Officer Carty then returned to his patrol car; defendant, without being asked to do so, then got out of his car and headed toward the patrol car, carrying a document in his hand. Officer Carty instructed defendant to return to his car. As defendant did so, he stumbled and dropped what he had been carrying.

Officer Carty then approached defendant's car again and asked defendant to recite the alphabet through the letter Q. Defendant did so without difficulty. He then asked defendant to step out of his car, and Officer Carty performed three roadside checks for intoxication: the horizontal gaze nystagmus test, walking heel to toe in a straight line, and balancing on one foot. Defendant's performance on each was unsatisfactory.

Officer Carty placed defendant under arrest, advised him of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and transported defendant to the police station, where Officer McLaughlin administered a breathalyzer test. Officer McLaughlin performed the test twice; defendant had a .10 reading on the first test, a .11 on the second.

Defendant was first tried in Hillsdale Municipal Court and was found guilty both on the basis of the breathalyzer readings and on defendant's performance on the roadside tests. Defendant obtained the same result when he sought a trial de novo in the Law Division. As we noted at the outset, it is that judgment from which defendant has appealed.

Officer McLaughlin, who was certified to perform breathalyzer tests, testified as to the method he employed to administer the test to defendant. In his testimony, he reviewed the steps he took prior to administering the test. He testified that, after verifying that the machine was turned on and was within the proper temperature range, his next steps were to gauge the reference ampule and the test ampule. The following colloquy occurred:

Q. All right. Let's go on to the next item, item number two. What's the next thing you did?

A. Reference ampule. Reference ampule gauged and inserted into the left-hand holder.

Q. And what does it mean that you gauge the reference ampule?

A. I used our Go -- Go/No-Go Gauge. The ampule will only fit in one way. It seated at the bottom of the gauge. I held it up to the light to verify the line of meniscus was at or above the top of the gauge.

Q. Did you so verify?

A. Yes, I did. I verified the volume in the --

Q. Okay. And then after you gauge it, what do you do with that reference ampule?

A. I placed it in the left-hand holder.

Q. Okay. Did you drop it in?

A. No. I placed it in until it was seated firmly in the bottom.

Q. Okay. And what is the next thing you do? Item number three.

A. It's the test ampule. I gauged --

Q. Gauged --

A. I gauged it, verified the volume, opened it, re-verified the volume. I inserted it into the right -- opened it and inserted it into the right-hand holder.

Q. Okay. Let's talk about that. Now, you said you gauged it. Do you gauge it in the same way you gauge the reference ampule?

A. Correct.

Defendant presented as an expert witness Herbert Leckie, a retired member of the New Jersey State Police who had been a member of the Alcohol Drug Test Unit and who had served as the Breath Test Coordinator-Instructor. Mr. Leckie testified that, in his opinion, Officer McLaughlin had administered the test improperly because he had not gauged the ampules properly.

Mr. Leckie testified in the following manner:

Based upon questioning from the Prosecutor, he was asked specifically how he gauged that reference ampule. And his testimony was that he placed the ampule in, as he properly referred to it, the Go/No-Go Gauge.

However, he failed to indicate that he used the small side of the gauge. The gauge is given that name, Go/No-Go Gauge, because the ampule is supposed to fit in one side of the gauge. The gauge is to be turned over and the ampule is to be checked to see if -- if it would fit into the opposite side of the gauge which it should not.

His testimony was that he placed it into the big side of the gauge, if you will, and seated it in the gauge, held it up at eye level to check the -- the amount of fluid that was contained within the ampule, and he properly did that.

However, there was no testimony that he turned the gauge over and checked the opposite side of the gauge, therefore not checking the outside diameter of the glass of the ampule which is proper, according to training. So, therefore, he did not comply with the proper operating procedure and training that is provided to breathalyzer operators.

That testimony continued for step number three which deals with the test ampule. The same testimony was provided regarding the test ampule for test number one. However, he properly testified that after gauging it in the big side of the gauge, he opened the ampule and then verified the volume, which again is proper.

However, once again, there was no testimony that he utilized the small side of the gauge to check the outside diameter of the glass to confirm that it, in fact, was proper.

In addition to presenting the expert testimony of Mr. Leckie, defendant also testified on his own behalf. He outlined his activities during the day, which had commenced when he got up around 5:00 a.m. and took a three-mile run. He said that he had eaten lunch around noon and not eaten thereafter. He admitted that he had consumed more alcohol than he had told Officer Carty. He played racquetball from about 4:00 p.m. to 6:00 p.m. in Bogota, after which he had one and one-half glasses of wine. He then went to another establishment near the border of Hackensack and River Edge and had a number of beers, perhaps up to five. He said he was then tired and took a nap in his car before heading to his home in Rockland County.

Defendant testified that when he saw the headlights of Officer Carty's car behind him on Kinderkamack Road, he became anxious because he had, over the past three years, had a number of incidents of someone following him, making threatening phone calls and, in one incident, trying to run him off the road. He said he had consulted with the police in his municipality who advised him when such an incident occurred to try to get the license plate number of the pursuing car. He said that was what he was trying to do when he pulled off onto the side street and sat there with his lights off. He admitted that he made no attempt to call 911 or to signal the police car and request assistance even though he thought he was being pursued.

The municipal court judge rejected defendant's explanation of his behavior. He concluded that defendant had purposely pulled off to a side street to avoid being stopped. According to the record before us, defendant did not renew that assertion on the trial de novo.

The municipal court judge and the Law Division judge both rejected defendant's argument that Officer McLaughlin improperly administered the breathalyzer test. They both cited to Officer McLaughlin's extensive experience administering breathalyzer tests and the failure of the accompanying checklist to separate the steps involved in the gauging process, and they inferred from the overall context of the officer's testimony that he had, in fact, engaged in the two-step process described by Mr. Leckie but subsumed it in his general reference to "gauging" the ampule. The Law Division judge wrote in this regard,

"I find Officer McLaughlin's lack of specific testimony in this instance to be unremarkable and to have no bearing on the burden of proof."

On appeal, defendant only challenges his conviction for driving while intoxicated. He does not contest the motor vehicle violations. Defendant raises three arguments on appeal -- that the court erred in admitting into evidence the certificate of analysis of the contents of the ampule, that the court erred in admitting the readings of the breathalyzer test, and, finally, that the court erred in denying his motion to suppress, Officer Carty having no basis to perform the field sobriety tests. We reject these arguments and affirm.

We do not find it necessary to address in detail defendant's argument directed to the admission of the certificates of the contents of the ampules used by Officer McLaughlin or the admission of the results of the breathalyzer test. Defendant was convicted of driving while intoxicated based not only on the breathalyzer readings, but also on the basis of his conduct on the evening in question. Judge Gaeta noted in his written opinion, "the multiple indicia of intoxication" that were present that justified the roadside sobriety tests and described in detail how defendant's performance on each of those tests was unsatisfactory. Judge Gaeta noted, for instance, that defendant started the walk-and-turn test in the wrong position, missed heel-to-toe steps, did not walk in a straight line and stumbled as he turned. He also noted that defendant began the one-leg stand test before being told to do so, put his foot down at least six times during the test, and at one point, teetered to the side.

Defendant's conviction is affirmed, and the stay of his sentence previously granted by the trial court is dissolved.

 

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A-0091-05T1

May 4, 2006