STATE OF NEW JERSEY v. WESLEY REBISZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0058-08T40058-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WESLEY REBISZ,

Defendant-Appellant.

_____________________________________

 

Argued June 23, 2009 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Municipal Appeal

No. 07-067.

Jane M. Personette argued the cause for appellant

(Law Offices of Brian J. Neary, attorney;

Mr. Neary, of counsel; Ms. Personette, of counsel

and on the brief).

Joseph J. D'Onofrio, Jr., Assistant Prosecutor,

argued the cause for respondent (Robert A. Bianchi,

Morris County Prosecutor, attorney; Mr. D'Onofrio,

on the brief).

PER CURIAM

Defendant Wesley Rebisz appeals from the order of the Law Division finding him guilty of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50. The matter came before the trial court by way of defendant's petition for a de novo review of his conviction in the Lincoln Park Municipal Court. R. 3:23-8.

This being defendant's third conviction for DWI, the court imposed a $1,000 fine, assessed the mandatory statutory penalties, suspended defendant's driving privileges for ten years, ordered, pursuant to N.J.S.A. 39:4-50.17, that defendant install an ignition interlock device in his vehicle for a period of two years, and ordered that defendant serve 180 days in the Morris County jail, 90 days of which can be served in an approved alcohol rehabilitation program. The court also found defendant not guilty of speeding, N.J.S.A. 39:4-98.

These are the facts. On April 29, 2007, at approximately 1:30 a.m., Denville Township Police Officer John Cifelli was on patrol on Route 202 when he observed a Cadillac Escalade traveling in the opposite direction, at a high rate of speed with its high beams activated. Cifelli turned on his radar equipment and confirmed that the vehicle was traveling at a rate of 62 miles per hour. The posted speed limit for this area is 45 miles per hour.

Cifelli made a u-turn and began following the Cadillac. As he followed, Cifelli noticed that the Cadillac was drifting from the left lane to the right lane, then back to center, without signaling. Cifelli turned on his overhead lights and directed the Cadillac to stop. The car continued for a distance, made a right hand turn on Erie Avenue, and eventually stopped at the Mountain View Train Station.

Cifelli noticed a strong odor of alcohol as he reached the car to ask the driver for his credentials. The odor was emanating from defendant's breath. In response to Cifelli's questions, defendant admitted to having had two drinks earlier that evening. Defendant then apologized, and asked Cifelli if he could just sleep in his car. According to Cifelli, defendant's speech was slurred.

Cifelli directed defendant to step out of the car to perform certain field sobriety tests. The first was the one-leg stand test. After confirming that defendant did not have any physical disabilities that could affect his ability to perform the test, Cifelli physically demonstrated the one-leg stand test, and directed defendant to perform it; defendant did not complete the test as demonstrated. The second test was the walk-and-turn. Again, Cifelli verbally described the procedure, and physically demonstrated it; again, defendant was unable to complete the test as directed. He failed to walk heel-to-toe; had difficulty walking in a straight line; and failed to turn left as instructed.

Based on the attendant circumstances just described, Cifelli arrested defendant for DWI. Cifelli testified that from this point, up to the time he arrived at police headquarters, he did not lose sight of defendant. Once at headquarters, defendant admitted to having had at least two vodka and ginger ale drinks. He was not ill, and did not request medical attention.

Cifelli administered the Alcotest, obtaining five breath samples from defendant. Three of the samples were rejected. The first successful sample was obtained at 2:17 a.m., twenty-seven minutes after Cifelli's direct observation of defendant. The second one was obtained at 2:21 a.m., thirty-one minutes after Cifelli's direct observation of defendant. According to Cifelli, defendant did not ingest or put anything into his mouth during these time periods. The Alcotest produced a blood alcohol level reading of 0.18.

Defendant did not testify at trial. Instead, defense counsel called two physicians who attested to defendant's orthopedic and gastrointestinal problems. Specifically, Dr. Arthur Tiger, a board certified orthopedist, testified that defendant continues to suffer from a 1988 motorcycle accident in which he fractured his left ankle, and a 2003 accident that injured his right ankle. Gastroenterologist Dr. Richard Lin testified that defendant suffers from gastroesophageal reflux disease (GERD). According to Dr. Lin, this condition causes the contents of the stomach to reflux into the esophagus, thus mimicking an alcohol effect on the patient's breath. If defendant was suffering from this condition at the time he was administered the Alcotest, it could have compromised the accuracy of the reading.

Against this evidence, defendant now appeals, raising the following arguments.

POINT I

THE RESULTS OF THE ALCOTEST MUST BE EXCLUDED BASED UPON THE STATE'S NON-COMPLIANCE WITH THE CHUN REQUIREMENTS.

a. The Failure of the State to offer in evidence the New Standard Solution Report requires that the results of the Alcotest be excluded.

b. Given that there were only two breath samples taken from Mr. Rebisz, the failure of the State to utilize the calculation set forth by the Supreme Court requires that the results of the Alcotest be excluded.

POINT II

THERE WAS NO PROBABLE CAUSE FOR OFFICER CIFELLI TO EFFECTUATE A STOP OF MR. REBISZ'S VEHICLE.

POINT III

THE COURT'S DETERMINATION THAT MR. REBISZ WAS GUILTY OF DRIVING WHILE INTOXICATED WAS AGAINST THE WEIGHT OF THE EVIDENCE.

a. The field sobriety tests were incorrectly administered and, therefore, are unreliable.

b. The results of the Alcotest are unreliable given Mr. Rebisz's gastroesophageal reflux disease.

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW DEFENDANT TO DEVELOP THE RECORD REGARDING THE SLOPE DETECTOR, THUS DEPRIVING DEFENDANT OF THE OPPORTUNITY TO CONFRONT THE WITNESSES AGAINST HIM AND RESULTING IN A DENIAL OF DUE PROCESS OF LAW.

 
We reject these arguments and affirm substantially for the reasons expressed by Judge Manahan in his memorandum of opinion dated August 1, 2008, to the extent that he found a sufficient basis to find defendant guilty of DWI based solely on the observations of the arresting officers. State v. Locurto, 157 N.J. 463, 473 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We thus need not, and specifically do not, reach defendant's arguments attacking the reliability and admissibility of the blood alcohol readings obtained through the Alcotest.

Affirmed.

The trial court stayed execution of the custodial sentence pending the outcome of this appeal.

(continued)

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A-0058-08T4

July 28, 2009