STATE OF NEW JERSEY v. KEITH STEIDLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5860-06T45860-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH STEIDLE,

Defendant-Appellant.

____________________________________________________

 

Submitted May 5, 2008 - Decided

Before Judges Collester and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5805.

Joy R. Spriggs, attorney for appellant.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On October 27, 2001 at 1:33 a.m., Officers Preston Freeman and Kevin O'Keefe were patrolling in a police vehicle in Westfield when they received a radio call regarding a two-car accident at the intersection of Crossway Place and North Avenue. Upon their arrival, another officer was already at the scene and talking to the female driver of one of the vehicles. Officers Freeman and O'Keefe approached defendant, who was standing next to a black BMW, the other vehicle involved in the collision at that intersection. According to Officer Freeman, when he asked defendant what had occurred, defendant said that "[h]e was coming up Crossway Place" and "[h]e was supposed to stop at the Stop sign"; defendant further indicated that he did not stop, which "resulted in a traffic accident" with a vehicle traveling west on North Avenue.

According to Officer Freeman's testimony, defendant had "difficulty finding his documents," and when "he pulled out his wallet . . . he dropped [his license] on the ground" and "seemed to be confused." Officer Freeman testified that "[t]here was a[n] obvious odor of alcohol coming from [defendant's] breath," that defendant's "eyes were bloodshot and watery," that his "balance was very unsteady," and that defendant "seemed to be very unsteady on his feet." Officer Freeman also observed that defendant "was using the vehicle for balance . . . to not fall and he was . . . stumbling along as we were talking to him." As a result, Officers Freeman and O'Keefe administered four field sobriety tests, which defendant failed. Defendant was arrested for driving while intoxicated, transported to the police station, and again administered sobriety tests, which he again failed.

At the police statement, Officer Freeman read defendant "the DWI statement and also the Miranda[] rights" and asked defendant to submit to a breathalyzer test. Defendant refused to provide the sample, and, after Officer Freeman read defendant additional warnings about the consequences of refusing to submit, defendant persisted in his refusal.

Defendant was issued summonses which charged him with: (1) driving while intoxicated, N.J.S.A. 39:4-50; (2) refusal to submit to a breathalyzer, N.J.S.A. 39:4-50.2; and (3) failure to obey a stop sign, N.J.S.A. 39:4-144.

Defendant pled guilty to driving while intoxicated on December 13, 2001, and the other two charges were dismissed. On January 26, 2006, the municipal judge granted defendant's petition for post-conviction relief, vacated his guilty plea and the dismissal of the other charges, and ordered a new trial. At the conclusion of a trial on October 5, 2006, defendant was found guilty of both driving while intoxicated and refusing to submit to a breathalyzer test, but acquitted of failing to obey a stop sign.

Defendant appealed to the Law Division. After hearing the argument of counsel, the Law Division judge found defendant guilty of driving while intoxicated and refusing to submit to a breathalyzer test. The judge imposed fines and suspended defendant's driving privileges for seven months on each charge, running concurrently with each other.

Defendant appealed, raising the following arguments for our consideration:

I. DEFENDANT'S CONVICTION FOR VIOLATION OF N.J.S.A. 39:4-50 MUST BE REVERSED BECAUSE THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT OPERATED A VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR.

II. DEFENDANT'S CONVICTION FOR VIOLATION OF [N.J.S.A.] 39:4-50.2 MUST BE REVERSED BE-CAUSE THE STATE FAILED TO ESTABLISH PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT WAS THE DRIVER OR HAD ACTUAL PHYSICAL CONTROL OF THE VEHICLE.

III. DEFENDANT'S CONVICTION FOR REFUSAL TO TAKE A BREATH TEST MUST BE REVERSED UNDER STATE VS. DUFFY[] BECAUSE . . . THE ARRESTING OFFICER FAILED TO READ TO THE DEFENDANT THE ENTIRE DMV STANDARD STATEMENT FOR DWI'S.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

In examining defendant's contentions, we are mindful that we are obligated to defer to a judge's findings in a non-jury matter when they are supported by evidence the judge was entitled to find credible. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). After careful examination of the record, we conclude that there was sufficient evidence in the record to support the findings in question.

We first observe that there was an abundance of evidence to support the finding that defendant was intoxicated at the scene of the accident, including Officer Freeman's observations about his unsteadiness and confusion, as well as the odor of alcohol, and defendant's failure to pass the field sobriety tests.

As for whether defendant had actually been in operation of the vehicle, Officer Freeman testified that he and his partner came upon the scene shortly after the accident and found defendant standing next to his vehicle. In the discussion that followed, as recounted by Officer Freeman, defendant revealed that he had been operating the vehicle at the time of the accident in the following way:

Q. . . . [D]id you ask [defendant] how the accident occurred?

A. Yes.

Q. And what happened? What did he say?

A. He said that he hit a vehicle coming . . . down the street on North Ave.

. . . .

Q. Sir, going back to the initial scene of the accident . . . was there a Stop sign at that location?

A. Yes, there's a Stop sign at Crossway Place and North Ave.

Q. And the defendant admitted that he was traveling on which roadway?

A. He was coming up Crossway Place. He was supposed to stop at the Stop sign, which he did not, which resulted in a traffic accident.

Defendant also stated he had not sustained any injuries during the crash, which constituted further evidence that he was in the vehicle at the time of the accident. The fact finder was entitled to credit the officer's testimony about defendant's statements and to draw the logical inference that defendant was operating the vehicle at the time of the collision.

Defendant also argues that State v. Duffy, supra, 348 N.J. Super. 609, requires that we reverse his conviction for refusal to submit to a breathalyzer, arguing that Officer Freeman failed to read defendant the additional clarification of defendant's obligation to provide a breath sample, as required by N.J.S.A. 39:4-50.2(e). In this regard, defendant places great weight on the fact that a particular box on the standardized form, which was filled in as Officer Freeman advised defendant, was not checked off. Although it is true that the box in question was not checked on the form, Officer Freeman nevertheless testified that he "read the 'second' portion to defendant" and that "defendant was informed of the consequences of his refusal." The judge found this testimony credible, and did not draw the inference, now urged by defendant, that the officer's testimony was not credible because of what is revealed by the standardized form. We reject defendant's contention; it is not our function on appeal to determine whether the trial judge could have made different findings but whether his findings are based upon evidence that the judge was entitled to find credible. State v. Locurto, supra, 157 N.J. at 471.

We also reject defendant's further attempts to analogize the circumstances here with State v. Duffy. In Duffy, the defendant was asked and consented to submit a sample of his breath. 348 N.J. Super. at 610. After arriving at the police station, the defendant indicated "he was sick and could not take the test"; at this point, the officer noticed that the defendant was "sticking his fingers down his throat as if he were trying to vomit." Ibid. When the officer brought the defendant to the breathalyzer machine and directed that he submit the sample, the defendant stated, "I'll take the test, but it's under duress." Id. at 610-11 (internal quotes omitted).

The matter at hand and Duffy are readily distinguishable. In Duffy, the police officer admitted that "he did not read the additional required statement" to the defendant, id. at 612, whereas here, Officer Freeman testified that he did read defendant the additional required statement. The municipal judge found Freeman to be a credible witness, as did the Law Division judge, who made the following findings:

[Defendant] was given an opportunity to take a breathalyzer. He was read the standard statement and he was advised by the officer that he had a right to refuse to submit [to] it. He was also advised of the consequences of his failure to submit.

I'm satisfied that Officer Freeman conducted himself according to the law, that the defendant refused to submit to the breathalyzer knowing what the consequences were. It was a knowing and voluntary decision on his part.

 
These findings are supported by the record and are entitled to our deference.

Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Duffy, 348 N.J. Super. 609 (App. Div. 2002).

N.J.S.A. 39:4-50.2(e) requires that "[t]he police officer shall . . . inform the person arrested of the consequences of refusing to submit to such test," and directs that "[a] standard statement, prepared by the director, shall be read by the police officer to the person under arrest."

(continued)

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A-5860-06T4

May 28, 2008