STATE OF NEW JERSEY v. ROBERT W. MCDOWELL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1108-08T41108-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT W. MCDOWELL,

Defendant-Appellant.

_______________________________

 

Argued: May 13, 2009 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 44-2007.

John Menzel argued the cause for appellant.

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

PER CURIAM

Defendant Robert W. McDowell appeals from his Law Division con viction in a trial de novo of refusing to submit to an Alcotest contrary to N.J.S.A. 39:4-50.2. Because the arresting officer had probable cause to arrest defendant and gave defendant a fair opportunity to provide adequate breath samples, we affirm.

On August 6, 2006, Lee Jablow, a college student, was work ing at Cub Liquors in Middlesex. At about 5:57 p.m., as Jablow and his coworker were closing the store for the night and locking the front doors, Jablow saw defendant approach the glass doors and removed his motorcycle helmet.

Defendant then knocked on the door and asked the two employ ees to let him into the store. When Jablow informed defendant that the store was closed, defendant demanded that Jablow open the door and began to knock more heavily and use profanity. When Jablow again told defendant that there was nothing he could do and that he could not restart the cash register, defendant "really start[ed] to pound" on the glass doors. Jablow dialed 9-1-1. Jablow could see a motorcycle through the glass and noted that defendant was still holding his motorcycle helmet.

Officer Thomas Griffin from the Middlesex Borough Police Department was dispatched in response to the 9-1-1 call. When he arrived, another officer was already at the liquor store speaking with defendant. Griffin observed a green Kawasaki motorcycle in the store's parking lot and a black and green helmet just to the right of the front doors.

When Griffin approached defendant, he noticed that defen dant was excited, had watery, bloodshot eyes, and was complain ing that the store was supposed to be open until 6:00 p.m. Defendant had a strong odor of alcohol on his breath and admit ted to Griffin that he had been drinking. However, he claimed that he walked to the store from his house. Defendant did not specify how much alcohol he consumed. Suspecting defendant of driving while under the influence of alcohol, Griffin administered two physical coordination tests. Defendant failed both tests.

Griffin then conducted a registration inquiry that con firmed the motorcycle was registered to defendant. He felt the motorcycle's engine and found that it was warm. After consider ing the information supplied by the store employees, the posi tion of the helmet, the registration of the motorcycle, the warmth of the engine, and defendant's failure to perform the field sobriety tests to his satisfaction, Griffin arrested defendant for driving while intoxicated.

After placing defendant under arrest, Griffin transported him to police headquarters and administered an Alcotest to determine his blood alcohol content (BAC). Griffin read the first eleven paragraphs of the New Jersey Motor Vehicle Commis sion Standard Statement for Operators of Motor Vehicles ("MVC Statement") to defendant. Defendant agreed to submit to breath testing, so Griffin did not read the remainder of the MVC Statement, which applies only if a person: remains silent or states or otherwise refuses to answer on grounds that he or she has the right to remain silent; wishes to consult an attorney, physician, or any other person; or gives an ambiguous or conditional response.

Griffin administered the Alcotest four times. The machine rejected three of the tests because defendant did not achieve the minimum volume of exhalation to give a valid sample. Grif fin instructed defendant to blow harder after the first and third tests, the second test having produced a valid sample. After defendant's fourth attempt again returned an invalid sam ple, Griffin terminated the testing and issued summonses for driving while intoxicated, N.J.S.A. 39:4-50, and refusing to submit to a breath test, N.J.S.A. 39:4-50.2.

On September 15, 2006, defendant moved for a jury trial. The Municipal Court judge denied that motion on October 26, 2006. Defendant was tried in Municipal Court on June 4, 2007. After hearing testimony from two witnesses, the judge found defendant not guilty of driving while intoxicated but guilty of refusing to submit to a breath test. The judge requested briefs on sentencing and adjourned the matter to June 11, 2006. At that time, the judge concluded that defendant's two prior DWI offenses required sentencing as a third-time offender. The judge imposed a $1006 fine, forty-eight hours in an Intoxicated Driver Resource Center, and revoked defendant's driving privileges for ten years.

On de novo review by the Law Division, the judge found the facts based on the Municipal Court record. He determined that there was probable cause to arrest based on defendant's opera tion of the motorcycle, his admission that he had been drinking, and his appearance as described by Griffin. He also determined that refusal was "pretty cut and dry especially in the wake of the Chun decision," finding that defendant gave four breath sam ples and that only one met the minimum volume required by Chun. He deferred to the Municipal Court judge's assessment of the demeanor of the witnesses and concluded that defendant purposely refused to take the breath test by not blowing into the device properly.

The Law Division judge also concluded that the law was set tled on the issue of whether prior convictions for driving while intoxicated were considered prior convictions for sentencing purposes upon a first conviction for refusal. As a result, he imposed the same sentence as that imposed by the Municipal Court judge. He also denied a stay of sentence.

Defendant raises the following issues on appeal:

POINT I - THE OFFICER'S TERMINATION OF TEST ING AND DECLARATION THAT DEFENDANT REFUSED WAS ARBITRARY AND CAPRICIOUS, GIVEN THAT, IN FOUR ATTEMPTS, DEFENDANT SUBMITTED ONE COM PLETELY VALID SAMPLE AND THREE OTHERS THAT SATISFIED THE MINIMUM TIME AND WELL EXCEEDED HALF A LITER ON EACH ATTEMPT.

POINT II - WITH THE ADVENT OF STATE v. CHUN, THIS COURT IN RE-EXAMINING OUR EARLIER JURISPRUDENCE WHEN CONSIDERING THE NEW AND GENERALLY RELIABLE, BUT OCCASIONALLY FLAWED, ALCOTEST TECHNOLOGY WITH A VIEW TO PROTECT ING DEFENDANTS' RIGHTS SHOULD FIND REA SONABLE DOUBT SUFFICIENT TO ACQUIT DEFENDANT, DESPITE THE EXISTENCE OF A POSSI BLE AFFIRMATIVE DEFENSE HE DID NOT RAISE. (NOT RAISED BELOW)

POINT III - THE POLICE FAILURE TO READ THE REQUIRED SECOND PART OF THE MVC STANDARD STATEMENT TO DEFENDANT AFTER HIS ALLEGED REFUSAL OBJECTIVELY RENDERS AN ELEMENT OF THE OFFENSE DEFECTIVE AND WARRANTS ENTRY OF A NOT GUILTY VERDICT.

POINT IV - GIVEN THE ABSENCE OF PROOF OF BOTH MOTOR VEHICLE OPERATION AND IMPAIRMENT, THERE WAS NO PROBABLE CAUSE TO ARREST DEFENDANT FOR DWI BEYOND REASONABLE DOUBT.

POINT V - THE PLAIN LANGUAGE OF THE STATUTE UNDER THE MOST REASONABLE INTERPRETATION THEREOF DICTATES THAT, IF CONVICTED, DEFEN DANT SHOULD BE SENTENCED AS A FIRST OFFENDER.

POINT VI - BECAUSE HE FACED SERIOUS QUASI-CRIMINAL AND CIVIL CONSEQUENCES AS A DIRECT RESULT OF THE MUNICIPAL COURT PROCEEDINGS, INCLUDING CONFINEMENT FOR MORE THAN SIX MONTHS, DEFENDANT WAS AND IS ENTITLED TO A JURY TRIAL.

Municipal Court decisions are first appealed to the Law Divi sion. R. 3:23-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003); State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division reviews the record de novo, making its own findings of fact. State v. Kotsev, 396 N.J. Super. 58, 60 (Law Div. 2005), aff'd, 396 N.J. Super. 389 (App. Div.), certif. denied, 193 N.J. 276 (2007). Although the record is reviewed anew, due deference is given to the Municipal Court's opportunity to gauge the credibility of witnesses. State v. Locurto, 157 N.J. 463, 470 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). However, this deference is not outcome-determinative, and the Law Division may arrive at its own con clusions if justice so demands. Kotsev, supra, 396 N.J. Super. at 61.

In turn, "[o]ur standard of review of a de novo verdict after a municipal court trial is to 'determine whether the find ings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Johnson, supra, 42 N.J. at 162). This court defers to the Municipal Court's credibility findings that are "often influenced by matters such as observations of the charac ter and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474.

Moreover, when the Municipal Court and the Superior Court "have entered concurrent judgments on purely factual issues," we will not disturb those findings "absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474. We are bound by the trial court's findings of fact even though we may have reached a different conclusion, unless we are "thoroughly satis fied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.

[Ebert, supra, 377 N.J. Super. at 8.]

That said, although appellate review of a Municipal Court conviction is "exceedingly narrow," Locurto, supra, 157 N.J. at 470, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We begin our review of the issues on appeal with defen dant's arrest. McDowell argues that the police seized him with out a warrant, which is presumptively unreasonable unless it falls into a recognized exception to the warrant requirement. He asserts that "there was no probable cause to believe [he] was DWI because no facts exist from which to draw a reasonable inference that he either operated a vehicle or was impaired by alcohol." We disagree.

Although McDowell's point heading states that "there was no probable cause to arrest [him] for DWI beyond a reasonable doubt," this conflates the standard to convict a defendant of a criminal or quasi-criminal offense with the standard for arrest. See State v. DeSimone, 60 N.J. 319, 322 (1972) (probable cause is not equal to a prima facie case; no more than a well-grounded suspicion or belief that an offense is taking place is required (citations omitted)).

While our courts have declined to assign probable cause a pre cise definition, State v. Wilson, 178 N.J. 7, 13 (2003), the "principal component of the probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)); see Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003) (probable cause is a reasonable ground for belief of guilt (internal quotations & citation omitted)). Thus, a police officer may make an arrest without a warrant "'where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed.'" Moore, supra, 181 N.J. at 46 (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)) (alterations in original).

When Griffin arrived at Cub Liquors, McDowell appeared visi bly intoxicated, had the odor of alcohol on his breath, and had watery, bloodshot eyes. McDowell admitted drinking an unspecified quantity of alcohol, and although he stated he had walked from home, there was a motorcycle with a warm engine com partment in the parking lot and a motorcycle helmet on the ground near the doors of the liquor store. Jablow and the other employee told Griffin that McDowell had driven the motorcycle to the store. A subsequent registration check confirmed that the motorcycle in fact belonged to McDowell. When asked to perform field sobriety tests, McDowell failed to keep his hands at his sides and was swaying during the first test and did not keep his feet closely together during several steps or count out loud during the second test.

These facts support a reasonable inference that defendant was under the influence of alcohol and that he operated his motorcycle in that condition. Thus, we see no error in the Law Division judge's determination that these facts were sufficient to establish probable cause to arrest on suspicion of driving under the influence.

With respect to refusal, McDowell asserts that he submitted one "completely valid" sample and three others that "exceeded the half-liter threshold described in [State v. Foley, 370 N.J. Super. 344, 345 (Law Div. 2003)]." However, he acknowledges that a minimum volume requirement of one and one-half liters was mandated by Chun, supra, 194 N.J. at 152. He further argues that, because the Alcotest is programmed to accept up to eleven samples, Griffin's decision to terminate the test after four tries was arbitrary, capricious and unreasonable.

The Alcotest is a breath-testing device manufactured and marketed by Draeger Safety Diagnostics, Inc. ("Draeger"), first utilized by New Jersey as part of a test program in Pennsauken. Id. at 66. It relies on pre-loaded software (firmware) and utilizes both infrared and electric chemical oxidation in a fuel cell to measure BAC. Id. at 78. The current version of the firmware is version 3.11, which was implemented after the Foley court found that firmware version 3.8 artificially created an extremely high refusal rate. Id. at 113; Foley, supra, 370 N.J. Super. at 352. The Middlesex police department began using the Alcotest MKIII-C with firmware version 3.11 in January 2005. Special Master's Findings & Conclusions Submitted to the Supreme Court 34 (Feb. 13, 2008) ("Master's Findings").

Before an Alcotest can be used on a subject, it conducts a control "blank air" test to determine if there are chemical interferents in the room; if there are, the device is programmed so that the test cannot continue. Chun, supra, 194 N.J. at 80. Assuming the blank air test is acceptable, the Alcotest prompts the operator to collect a breath sample. Ibid. Lights on an LED screen and a programmed sound notify the operator if the sample meets the minimum criteria. Id. at 81. The relevant minimum criteria under Chun are (1) a volume of at least one and one-half liters; and (2) a blowing time of at least four and one-half seconds. Id. at 152. After a valid sample is given, the Alcotest locks out the operator for two minutes, performs another blank air test to clear the sample, and then prompts the operator to collect another sample. Id. at 81. Two valid sam ples within an acceptable range of tolerance are required to produce an acceptable result; the operator has a maximum of eleven attempts to collect the two valid samples. Ibid. After eleven failed tests, the two options available to the operator are to terminate testing or report refusal. Ibid.

As McDowell points out in his brief, the Foley court found a serious problem with Alcotest firmware version 3.8, which was used during the initial 2001-2002 test program in Pennsauken. 370 N.J. Super. at 345. However, in response to the holding in Foley, the State asked Draeger to make changes to the firmware. Master's Findings at 33. Laboratory tests were conducted from July to September 2004, and shortly afterwards Draeger delivered firmware version 3.11 to the State. Id. at 34. More tests were performed to determine if the firmware complied with the National Highway Transportation Safety Agency's model specifications, which it did. Ibid. As a result, in January 2005, the Middlesex police department began to utilize the Alcotest MKIII-C with firmware version 3.11. Ibid.

Foley's holding was clearly limited to firmware version 3.8, which was not the version in use when McDowell was arrested and tested. The Chun Court squarely held that one and one-half liters was the minimum volume necessary to generate a valid test, with the exception of women over the age of sixty, when using Alcotest models with firmware version 3.11. 194 N.J. at 152. As a result, we find no merit in defendant's argument that providing a sample of one-half liter precludes a refusal conviction under Foley.

McDowell argues that Griffin should have afforded him the maxi mum of eleven tries to collect two valid breath samples. The State disagrees, arguing that "a police officer must have the discretion to conclude that a suspect's efforts to provide breath samples are insincere, and the officer hardly needs to try to take 11 samples to make the decision." We decline defen dant's invitation to establish an arbitrary number of attempts before an officer can terminate the Alcotest , deciding only whether it was reasonable in the circumstances presented here to terminate the test after four attempts.

In State v. Geller, 348 N.J. Super. 359, 364-65 (Law Div. 2001), the court considered whether a police officer's decision to terminate a breathalyzer test after giving the defendant six opportunities warranted a refusal conviction. The defendant was generally unruly and uncooperative with the police, boasting that "he had won numerous cases because the breathalyzer was not calibrated." Id. at 361. When a police lieutenant told defen dant he was being charged with refusal, defendant reportedly agreed to stop being uncooperative and blew a "green light" on his sixth attempt. Id. at 361-62.

The judge held that the defendant's conduct was the equiva lent of a refusal, despite his verbal assent to take the test. Id. at 364. He explained, "At the very least, defendant engaged in impermissible delaying tactics. [Defendant] was given instructions several times that he should make a tight seal on the mouthpiece with his lips and blow as hard as he could until told to stop. The Lieutenant was not required to do more." Id. at 365 (citation omitted).

Griffin's testimony, which the Municipal Court judge found credible, was that McDowell did not take commands well and did not blow into the Alcotest in a proper manner. He told McDow ell that he was not blowing hard enough into the machine and to blow harder after each failed attempt. Griffin further testi fied that it was protocol to allow three failed attempts before terminating the test. "The problem that police face in the drunk driving setting is that they must administer the necessary blood-alcohol test within a reasonable time after the arrest in order to get an accurate reading. 'The evidence is evanescent and may disappear in a few hours.'" State v. Leavitt, 107 N.J. 534, 541 (1987) (quoting State v. Dyal, 97 N.J. 229, 239 (1984)). Two failures to provide an adequate breath sample have been found sufficient to constitute refusal despite a verbal agreement to submit to a breathalyzer. In re Kallen, 92 N.J. 14, 18, 29 (1983). We are satisfied that three insufficient breath samples, given the evanescent nature of the evidence, were sufficient to support defendant's conviction.

With respect to defendant's second point on appeal, the issue was not raised before the Municipal Court or Law Division and we will not consider it for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The issues so raised do not "go to the jurisdiction of the trial court or concern matters of great public interest," ibid. (internal quotations & citation omitted), and, thus, are not entitled to an exception to the Nieder rule.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to war rant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are that the police failed to reach the second part of the MVC statement, that defendant should be sentenced as a first offender, and that he was entitled to a jury trial.

 
Affirmed.

State v. Chun, 194 N.J. 54, 152, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

With the exception of women over the age of sixty, who must submit at a breath sample of at least one and two-tenth liters. Id. at 152.

(continued)

(continued)

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A-1108-08T4

June 22, 2009