STATE OF NEW JERSEY v. CARLY A. WOODWARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0460-07T40460-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLY A. WOODWARD,

Defendant-Appellant.

__________________________________

 

Argued November 3, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 9-2007.

Bartholomew Baffuto argued the cause for appellant.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant, Carly A. Woodward, appeals her convictions of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, and refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. After fully considering the points raised on appeal, we affirm.

At about 9:00 p.m. on September 18, 2005, defendant was sitting behind the wheel of her car. The car was parked behind a gasoline station in East Brunswick, with the engine running and its headlights illuminated. There were no passengers. Loud music was playing inside.

An East Brunswick patrolman, Officer Eric Wood, observed defendant in her vehicle. Officer Wood called in a second East Brunswick patrolman, Officer James Angermeier, Jr., of the police department's DWI unit.

After Officer Angermeier arrived, he asked defendant to turn down the music. Defendant lowered her window to hear what the officer was saying. As she did so, Officer Angermeier smelled the odor of alcohol emanating from inside the car. He asked defendant why she had parked at the service station. She replied that she was taking care of a personal hygiene problem. Defendant further stated that she was on her way to a local restaurant for a bartenders' meeting.

Although defendant denied that she had consumed any alcoholic beverages, Officer Angermeier perceived that her eyes were watery and bloodshot. He also noticed that she moved very slowly when pulling out her driving credentials. Based on these observations, and the smell of alcohol, the officer asked defendant to get out of her car. When defendant left the vehicle, Officer Angermeier observed that she swayed and staggered.

Officer Angermeier then administered a portable breath test, which indicated the presence of alcohol on defendant's breath. This led the officer to conduct several field sobriety tests. By the officer's observations, defendant failed two of those tests. First, defendant was unable to perform a one-leg stand correctly. In particular, she swayed, raised her arms for balance and dropped her raised foot to the ground for the last ten seconds of the thirty-second test. Thereafter, defendant failed the walk-and-turn test by not maintaining a consistent heel-to-toe gait, straying from a straight line, using her arms for balance, turning the wrong way and taking an extra step on her return.

Officer Angermeier arrested defendant and placed her in the back of his patrol car. He then drove her to police headquarters.

Once at headquarters, Officer Angermeier attempted to administer a breathalyzer test. He read defendant the standard statement prescribed by N.J.S.A. 39:4-50.2, outlining the consequences of a refusal to submit to breath testing. Defendant nonetheless declined to submit to the testing.

Defendant was issued three summonses charging her with a DWI offense and with a refusal violation, as well as reckless driving under N.J.S.A. 39:4-96. She pled not guilty, and her case was tried in the municipal court. The sole witness at the trial was Officer Angermeier. Defendant did not testify herself nor did she present any expert witnesses.

Defendant was convicted of both the DWI offense and the violation of the refusal statute, although the municipal court dismissed the reckless driving charges. In his oral decision, the municipal judge specifically found Officer Angermeier to be a "very credible" witness. The municipal judge determined that the police had adequate grounds to approach defendant's vehicle and require her to submit to field sobriety tests. The judge considered defendant's claim that she had difficulty with the field tests because the ground was allegedly uneven, and instead found credible the officer's testimony that the area was level, dry and well-lighted. The judge further determined that defendant had failed the field tests "very badly." The judge also concluded from the surrounding circumstances that defendant had driven her car to the service station and that she intended to operate it again to go to the bartenders' meeting.

Sifting through all of the proofs, the municipal judge concluded that the State had proven, beyond a reasonable doubt, that defendant was guilty of the DWI offense and also was guilty of refusing to submit to a breathalyzer. As sanctions, the judge suspended defendant's driving privileges for seven months for the refusal conviction, and a consecutive three months for the DWI violation. He also fined defendant $300 for each offense. The penalties were stayed pending appeal.

On de novo review, the Law Division sustained defendant's convictions. However, the Law Division made the license suspensions concurrent.

Defendant now appeals. She raises the following points.

POINT I

CARLY A. WOODWARD DID NOT OPERATE A MOTOR VEHICLE.

POINT II

OBSERVATIONS EVIDENCE DID NOT PROVE AN OFFENSE BEYOND A REASONABLE DOUBT.

POINT III

PROOF OF GUILT UNDER [N.J.S.A.] 39:4-50.4a REQUIRES PRIOR IMPLIED CONSENT; PROOF OF IMPLIED CONSENT UNDER [N.J.S.A.] 39:4-50.2 IS ESTABLISHED ONLY UPON PROOF BEYOND A REASONABLE DOUBT OF OPERATION.

POINT IV

GUILT UNDER [N.J.S.A.] 39:4-50.4a REQUIRES PROOF THAT THE IMPLIED CONSENT WARNINGS WERE GIVEN.

POINT V

THE STATE'S SOLE WITNESS WAS BIASED IN THAT HE GAINED FINANCIALLY AND IN CAREER ADVANCEMENT BY A CONVICTION.

POINT VI

THE FAILURE TO PRODUCE OFFICER WOOD AS A TRIAL WITNESS RAISES AN INFERENCE AGAINST THE STATE.

POINT VII

POLICE ARE LAY WINTESSES, AND ALL REFERENCES TO TESTS AND TRAINING WITHOUT ANY FOUNDATION IN EVIDENCE ARE IMPROPER.

POINT VIII

MS. WOODWARD WAS DENIED THE RIGHT TO TRIAL BEFORE A DISINTERESTED AND IMPARTIAL JUDICIAL OFFICER AS GUARANTEED BY THE FOURTEENTH AMENDMENT.

POINT IX

THE COURT BELOW IMPLIEDLY RELIED ON THE DOCTRINE OF RES IPSA LOQUITUR TO DRAW AN INFERENCE ON RECENT DRIVING AND INTENT TO DRIVE.

POINT X

DENIAL OF MERGER OF THE CONVICTION UNDER [N.J.S.A.] 39:4-50.4a INTO THE JUDGMENT OF CONVICTION UNDER [N.J.S.A.] 39:4-50 INFLICTS A DOUBLE PUNISHMENT FOR THE SAME OFFENSE.

We have carefully considered all of defendant's contentions, as well as the oral argument of her counsel, and conclude that they are all unpersuasive. We add only a few comments.

Our standard of review of the credibility and other factual findings in this case is a deferential one. We must affirm those findings unless it is demonstrated that they are not supported in the record by substantial credible evidence. State v. Locurto, 157 N.J. 463, 471-72 (1999). Applying that principle here, we are satisfied that the court's findings, including its finding that the testimony of a police officer with substantial training and experience in DWI matters was credible, were entirely reasonable and justified by the record proofs. The fact that Officer Angermeier's recollection was refreshed by his written report, prepared over sixteen months before the January 2007 trial, is inconsequential.

In light of the undisputed fact that defendant's car was running in the gasoline station parking lot with its lights on, and defendant's statement to the officer that she was on her way to a bartenders' meeting at an off-site restaurant, we have no difficulty sustaining the finding that defendant had recently operated her car and intended to drive it again in the immediate future. See State v. Mulcahy, 107 N.J. 467, 476 (1987). We also sustain the findings of defendant's intoxication from the failed field tests and the police officer's other observations, and discern no improper application of liability principles. We further perceive no grounds for reversal in the State's failure to call Officer Wood nor the court's admission of the statutorily-prescribed standard statement into evidence, see N.J.S.A. 39:40-50.2(e), and defendant's adoptive admissions of refusal, see N.J.R.E. 803(b)(2).

The remaining arguments presented by defendant, including her claim that the arresting police officer and the municipal judge were unduly biased by financial considerations, lack sufficient merit for further comment or discussion. R. 2:11-3(e)(1)(E).

Lastly, with respect to the dual convictions and corresponding penalties, our law is clear that drunk driving and refusal-to-submit to a breath test are independent offenses that do not merge. Bean v. Strelecki, 101 N.J. Super. 310, 313 (App. Div.), certif. denied, 52 N.J. 491 (1968).

 
Affirmed.

The State does not cross-appeal the Law Division's modification of the suspensions, although it notes that the court was not obligated to merge the penalties.

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A-0460-07T4

November 19, 2008