STATE OF NEW JERSEY v. CHRISTINA M. CRESPO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2742-04T12742-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTINA M. CRESPO,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 6, 2006 - Decided June 26, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

Indictment No. 04-037.

Levow & Costello, attorneys for

appellant (Evan M. Levow, on the

brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Raymond D.

Hoffman, Assistant Prosecutor, on the

brief).

PER CURIAM

This is a drunk-driving appeal in which defendant, Christina Crespo, advances several arguments, each of which we reject as meritless.

Defendant claimed to have been cut off by another vehicle when she crashed into a guardrail on the Garden State Parkway during a rainy evening in October. At the accident scene, the investigating trooper smelled alcohol emanating from defendant who admitted to drinking at a Clifton restaurant.

Rather than asking defendant to perform the field sobriety tests at the accident scene, the trooper transported defendant and her three passengers to the Bloomfield barracks. The trooper explained that he believed this action was necessary because the roadway was wet, it was raining, and the scene of the accident was poorly lit and situated on a curve.

In the barracks' parking lot, the trooper administered four field sobriety tests to defendant, including the walk and turn, one-legged stand, alphabet, and counting. Defendant could not perform the first test without raising her arms for balance. Defendant discontinued the second test because she was wearing high heels. The alphabet test was performed satisfactorily; however, defendant skipped several numbers when performing the counting test.

Defendant was then placed under arrest for driving while intoxicated and read her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After her breathalyzer test yielded a result in excess of .10, she was charged with driving while under the influence and careless driving. The careless driving offense was subsequently dismissed, but she was convicted in the Nutley Municipal Court and in the Law Division on review by Judge Dennis Carey in a trial de novo based on the municipal court record.

Defendant appealed, raising four points for our consideration: (1) she was in custody when brought to the barracks and the officer was, therefore, required to administer Miranda warnings and advise her that she did not have to perform the field tests; (2) her oral statements, such as the counting test, must be suppressed in the absence of any Miranda warning; (3) the trooper needed her consent to "search" before administering the field tests; and (4) probable cause to arrest did not exist after the trooper administered the field tests.

Each of these points has insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). We merely point out that an officer need not advise a defendant that he or she may refuse to perform field tests. These tests are not subject to the right to silence as they are non-testimonial in nature and cannot be considered a search and seizure either. Asking a defendant to count backwards is neither testimony nor a seizure. No Miranda warnings were, therefore, necessary until the arrest. See State v. Green, 209 N.J. Super. 347, 351-54 (App. Div. 1986); State v. Bottomly, 208 N.J. Super. 82, 86-87 (Law Div. 1984), aff'd, 209 N.J. Super. 23 (App. Div. 1986).

In short, defendant crashed her automobile into a guardrail, admitted drinking, and smelled of alcohol. Her performance on the field tests supported the officer's well-founded suspicion that she had been driving while under the influence, and her performance was certainly inadequate to eradicate the officer's probable cause. See State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985).

 
Affirmed.

(continued)

(continued)

4

A-2742-04T1

June 26, 2006