STATE OF NEW JERSEY v. ARNOLD RUF, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1094-05T51094-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARNOLD RUF, JR.

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 12, 2006 - Decided October 12, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No. 4549.

Greggory M. Marootian, attorney for appellant.

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Terry Bogorad, Senior

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Arnold Ruf appeals from a conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). The Law Division judge determined that the two breathalyzer test readings, indicating that defendant's blood alcohol content was .15 percent, established a per se violation of the statute. He also found that the State had proven defendant's guilt based on the arresting officer's observations of defendant without regard to the breathalyzer readings. We affirm.

On this appeal, defendant argues:

POINT I

THE STATE DID NOT COMPLY WITH THE IMPLIED CONSENT STATUTE, N.J.S.A. 39:4-50.2. MR. RUF WAS NOT ADVISED OF HIS STATUTORY RIGHT(S) TO RECEIVE A COPY OF THE ALCOHOL INFLUENCE REPORT (CONTAINING THE BREATH READINGS) OR, TO HAVE AN INDEPENDENT TEST OF HIS BREATH, URINE, OR BLOOD BEFORE THE "BREATHALYZER" TEST(S). ACCORDINGLY, THE BREATH TEST RESULTS SHOULD HAVE BEEN DISREGARDED AS A MATTER OF LAW.

POINT II

THE SENTENCE OF THE COURT FOLLOWING THE DE NOVO REVIEW, DID NOT COMPORT WITH R. 3:23-8(E) OR R. 3:21-4.

After carefully reviewing the entire record and the applicable law, we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only these brief comments.

The only witness to testify at defendant's municipal court trial was Officer James Rapp, a certified breathalyzer operator, who is a member of the Ringwood Borough Police Department. The vehicle defendant was operating was stopped at a DWI checkpoint at approximately 12:50 a.m. on August 21, 2004. Upon approaching defendant's vehicle, Rapp detected the smell of alcohol and he asked defendant whether he had been drinking that night. Defendant replied that he had a few. Rapp then asked defendant for his driving credentials. As defendant was producing them, Rapp noticed that his movements were slow and uncertain, and he fumbled slightly.

Defendant was asked to exit his vehicle to perform certain balance and coordination tests. He attempted, unsuccessfully, to complete four separate field sobriety tests. Rapp testified defendant's face was flushed, his eyes were watery, his movements were slow, and his speech was slurred. Based on his training and experience, Rapp believed defendant was intoxicated. Defendant was charged with DWI and he was administered two breathalyzer tests. Both of the tests indicated that defendant's blood alcohol content was .15 percent.

The Law Division judge's findings included the following:

Defendant was first asked to recite the alphabet, but failed to recite the entire alphabet although he attempted it three times. The first time defendant stopped at the letter U and the second time defendant stopped at letter V, although defendant had said he spoke English and had a high school education.

Officer Rapp testified that defendant failed the next test where defendant was asked to walk a straight line, heal to toe, with his hands at his side. Defendant took several short choppy steps and lost his balance stepping off the line several times. Defendant failed the Romberg test where he was asked to stand at attention with his feet together, arms at his side, asked to close his eyes and tilt his head back for thirty seconds. Officer Rapp saw . . . defendant close his eyes, then saw him sway and stagger as soon as he put his head back, almost causing him to fall. Finally, Officer Rapp indicated that defendant failed a balance test where he was asked to stand feet together, arms at his side and to bend at the waist, with eyes closed and waiting 30 seconds. The officer testified that defendant had to move his feet to keep his balance and that he had to stop the test for defendant's safety. Officer Rapp testified that defendant was cooperative and calm but that his eyes were watery, his face was flushed his movements were slow and that he slurred his speech.

The Law Division also rejected defendant's argument that the two breathalyzer test results "should have been disregarded as a matter of law" because the State failed to prove defendant was informed of his statutory right to independent testing under N.J.S.A. 39:4-50.2(c) and (d):

This Court finds first, that the State proved a valid and admissible breathalyzer exam yielding a result of 0.15% BAC, thereby presenting requisite proofs required to sustain a finding that the defendant is guilty of per se D.W.I. beyond a reasonable doubt. Second, that defendant failed to raise his interpretation of the implied consent statute as an ordinary defense before the Municipal Court in a timely manner; he further failed to cross examine Officer Rapp as to whether notice of the ability to obtain an independent breathalyzer was given. Defendant only raised the issue after both parties rested. This Court finds no circumstances that indicate defendant could not have timely raised the issue, or brought it out during cross examination. Had defendant raised the issue, the Municipal Court, in its discretion, could have ordered a hearing on the motion to suppress and made its own findings. See R. 7:7-1, R. 7:7-2.

. . . .

Moreover, this court finds that the testimony of Officer Rapp is sufficient to support a D.W.I. conviction based upon his observation of defendant at the roadblock. Testimony revealed that defendant acted slow and fumbled; that he attempted and failed to recite the alphabet three times; that defendant swayed, staggered, and almost fell when the Romberg test was conducted; and finally, defendant moved his feet to keep his balance when performing the balance test. Defendant's inability to successfully complete the field sobriety testing combined with the Officer's observations that defendant's eyes were watery, his face was flushed, his movements were slow and that he slurred his speech, are sufficient to find him guilty beyond a reasonable doubt of D.W.I.

We are satisfied that Judge Guzman's findings are firmly supported by sufficient credible evidence in the record, and we agree with his decision not to "disregard" the breathalyzer test results. In a similar case, we recently noted that "the mere absence of evidence in the record that the police complied with N.J.S.A. 39:4-50.2(d), does not give rise to an established fact of non-compliance requiring suppression of otherwise valid breathalyzer test results." State v. Howard, 383 N.J. Super. 538, 550 (App. Div. 2006). Moreover, we held that "the State is not required to present affirmative proof that a defendant has been advised of the right to independent testing . . . to sustain a conviction of a per se violation." Id. at 548.

Affirmed.

 

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A-1094-05T5

 

October 12, 2006