STATE OF NEW JERSEY v. MAHESHKUM PATEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3558-06T43558-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAHESHKUM PATEL,

Defendant-Appellant.

____________________________

 

Argued October 15, 2008 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-017.

Joel I. Rachmiel argued the cause for appellant.

Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50(a). Because it was defendant's third DWI conviction, he was sentenced to 180 days in jail, with a maximum of 90 days to be served in an approved alcohol in-patient rehabilitation program; a ten-year suspension of his driving privileges and of his motor vehicle registration; and a $1,000 fine. The court also imposed all other appropriate costs, assessments, penalties and surcharges. However, the custodial portion of defendant's sentence was stayed pending the filing of a notice of appeal. Following the filing of his notice of appeal, defendant served ninety days of his custodial sentence in an in-patient alcoholic rehabilitation program. On April 11, 2007, the Law Division entered an order staying the remainder of defendant's custodial sentence, pending appeal. For reasons that follow, we remand this matter to the Law Division for further proceedings consistent with this opinion, and retain jurisdiction.

I.

On September 16, 2005, while operating his motor vehicle, defendant was involved in a one-car accident when his motor vehicle left the roadway and struck a tree. As a result of the collision, the motor vehicle's airbag deployed. Defendant did not lose consciousness and remained in his vehicle where he telephoned his wife and called for a tow truck. The police arrived at the scene at approximately 8:09 p.m.

Patrolman Brian Ahlert of the Florham Park Police Department was the first officer to approach defendant. Ahlert inquired whether defendant suffered any injuries or was in need of medical assistance. Defendant responded no to both questions. When Ahlert asked how the accident occurred, defendant only told the officer that the car had pulled to the right. During this conversation, Ahlert detected an odor of alcoholic beverage emanating from defendant's breath. Ahlert's observations of the accident scene disclosed that the motor vehicle suffered heavy front-end damage and there were 50 feet of tire tracks in the grass shoulder, indicating that the vehicle drifted off the travel portion of the roadway in a straight line, striking a tree and traffic sign approximately five feet from the edge of the road.

While Ahlert talked to defendant, Patrolman David Rubelowsky and several other officers of the Florham Park Police Department arrived on the scene, together with David Paige and his wife, both members of the Florham Park Memorial First Aid Squad. Also arriving at the scene at approximately the same time as the police, was defendant's wife.

On arrival, Paige approached defendant to evaluate whether defendant needed medical assistance. Defendant informed Paige that, although he felt pain in his knees, he did not lose consciousness; did not have neck or back pain; knew his name; knew where he was; and knew what had happened. Although Paige advised defendant that the ambulance squad was available to take him to the hospital for further evaluation, defendant indicated that he did not want to go. At one point, defendant began to demonstrate to Paige "that his knees were fine . . . [by dipping] down and [standing] back up . . . ." By dipping down, Paige explained that defendant "bent his knees a few inches" and said "see, my knees -- I'm fine."

In the interim, Ahlert made observation of the interior of defendant's motor vehicle. The patrolman observed a small empty airplane-size bottle of Johnny Walker Black Label scotch whiskey on the front passenger floorboard, and a one-half empty bottle (750 ml) of Sawyer Cellars Cabernet Sauvignon wine on the rear passenger floorboard. Based on his initial observations of defendant, Ahlert requested defendant to perform three field sobriety tests. Before administering the tests, in responding to Ahlert's questions, defendant denied that he had any injuries or other medical conditions that could have affected his performance of the sobriety tests.

Ahlert first administered the horizontal gaze nystagmus (HGN) test. Ahlert instructed defendant not to move his head when following the movement of the officer's pen; just to follow the movement of the pen with his eyes. Defendant failed to follow the instruction and moved his head while attempting to maintain visual sight of the officer's pen. Because there was debris on the roadway, the officer had the roadway swept prior to requesting defendant to perform the next two tests in front of his patrol vehicle.

Ahlert requested defendant to perform the heel-to-toe walking test by taking nine steps out, touching heel-to-toe in a straight line, turning, and walking nine steps back in the same fashion. After the officer demonstrated the test to defendant, defendant attempted to perform the test but took eleven steps out, not heel-to-toe but side-by-side, and then took thirteen steps back in the same manner.

The third test was the one-leg stand test. Defendant was instructed to raise one foot of his choice six inches off the ground, slightly out in front of him, and to count to thirty. On his first attempt, defendant did not raise his foot out in front of him, but rather raised it directly underneath his body. On his second attempt, defendant placed his foot down several times to maintain balance. Based on his observations, Ahlert formed an opinion that defendant was intoxicated. Defendant was arrested; placed into the rear of Ahlert's patrol vehicle; and transported to police headquarters.

On arrival at police headquarters, defendant was seated in the booking room approximately thirty-five feet away from the Sally Port door. Defendant was initially asked questions concerning his name, address, age, and other questions of a similar nature. Ahlert then gave defendant his Miranda warnings. After informing the patrolman that he understood his Miranda rights, defendant responded to the officer's questions concerning the alcohol he consumed that evening. Defendant informed Ahlert that he had three drinks that evening, one glass of scotch and two small glasses of wine, consuming the first drink at approximately 6:00 p.m. and the last drink at approximately 7:00 p.m. When asked whether he would provide a breath sample, defendant answered in the affirmative. While walking a short distance to the room where the Alcotest breath test instrument was located, Ahlert observed defendant stumble, almost walking into a wall. The breath test was administered by Rubelowsky outside of Ahlert's presence.

On completion of defendant's breath test, Ahlert met with defendant again in the booking room, completed defendant's paperwork and released defendant into the custody of his wife at 9:49 p.m. Ahlert described his observations of defendant's physical manifestations throughout the entire incident as: defendant swayed and staggered as he walked; swayed while he stood; spoke with a slightly slurred speech and in a slow manner; and had bloodshot and watery eyes with droopy eyelids.

In the Municipal Court proceedings, Ahlert and Paige testified in accord with the aforementioned. In addition, the State offered testimony of Patrolman Rubelowsky and placed in evidence a videotape taken with the camera in Ahlert's patrol vehicle. The videotape showed defendant's performance of the heel-to-toe walk and one-leg stand tests at the accident scene and of defendant seated in the rear of Ahlert's patrol vehicle as the vehicle proceeded to police headquarters.

Rubelowsky testified as follows. On his arrival at the accident scene, defendant was standing outside of his motor vehicle. Rubelowsky detected some fumes emanating from the airbag deployment and moved everyone away from defendant's motor vehicle to an area in front of Ahlert's patrol vehicle. While doing so, Rubelowsky observed the small scotch whiskey bottle and wine bottle in defendant's motor vehicle. On arrival of the first aid squad members, Rubelowsky heard defendant inform Paige that he was a doctor; he was fine; he did not need to go to the hospital and did not want medical attention. After he observed defendant fail the field sobriety tests, Rubelowsky formed an opinion of defendant's ability to operate a motor vehicle.

That he was not -- he was unsafe to be driving a motor vehicle on the road. He was intoxicated, the odor of alcohol was on his breath. His clothing was disheveled. His eyes were bloodshot and watery. He had been in an accident. . . . And [based on] my training and experience, and I formulated an opinion on Mr. Patel that he was under the influence of alcohol and he should not [have been] driving.

Rubelowsky followed Ahlert from the accident scene to the police headquarters in a separate police vehicle. While walking to the booking room, Rubelowsky opined that defendant swayed and "held out to walls for balance." Rubelowsky, a certified Alcotest operator, administered the breath test to defendant. Prior to administering the test, however, Rubelowsky inadvertently placed the wrong time of defendant's arrest into the Alcotest instrument. Instead of placing the time of 8:39 p.m. when defendant was arrested, he typed in 8:09 p.m., the time of the motor vehicle accident.

Defendant gave three breath samples. The first sample was provided at 8:54 p.m., but the minimum volume of breath was not achieved, resulting in the instrument not providing a blood-alcohol concentration (BAC) reading. Defendant provided a second sample at 8:58 p.m. that resulted in an IR reading and an EC reading of .205%. A third sample at 9:01 p.m. resulted in an IR reading of .216% and an EC reading of .213%. The Alcotest device reported as the final BAC test result, the lowest of the four IR and EC readings, truncated to two decimal places, or .20%.

Defendant's testimony as to the cause of the accident and his physical condition immediately thereafter contradicted that of the police officers and Paige. Defendant testified that on the day of the accident, after he finished regular office hours, he traveled to Orange to meet with Dr. Labessiere to discuss his possible purchase of Labessiere's office building on Northfield Avenue. Accompanying defendant, but in a separate automobile, was defendant's accountant. Defendant arrived at approximately 6:15 or 6:30 p.m., and the meeting lasted approximately one hour and fifteen minutes. During that time, defendant consumed a small, airplane-size bottle of Johnny Walker scotch whiskey that was provided to him by Labessiere. Following that, Labessiere offered defendant and his accountant some "French wine." Defendant testified that only one bottle was opened, and that both he and Labessiere consumed two small glasses of the wine, and his accountant consumed one small glass.

After the meeting, Labessiere gave the one-half bottle of wine to defendant and defendant placed the bottle on the rear floor of his motor vehicle prior to leaving the parking lot. While walking to his vehicle, defendant remembered that he had the empty airplane-size bottle of scotch in his pocket, and he placed that on the right front passenger seat. On traveling home, a distance of approximately eighteen miles, defendant's emergency beeper sounded, and while he attempted to observe the telephone number displayed in his pager, his vehicle left the roadway and struck the sign and tree.

Defendant testified that when the airbag deployed, it struck him in his face and chest. After impact, he sat in his motor vehicle for a few minutes, not knowing what had happened. Although he did not state from what part of his body, defendant testified that he bled heavily. He did not feel any pain, but had a burning sensation in his eyes, his ears were clogged and his nose was stuffy.

Defendant recalled conversing with Ahlert and informing the officer that he was okay. He acknowledged that when interviewed by the police and Paige, he told them he was fine, did not feel any pain except for his knees, and declined to go to the hospital or receive treatment. As to the statements he made to Ahlert concerning the happening of the accident, defendant denies that Ahlert asked how the accident happened; and defendant did not volunteer any information concerning his beeper sounding prior to the accident.

On release from police headquarters, defendant proceeded home, where for the first time he felt tenderness in his chest and observed swelling of both knees and a laceration of between three to four inches in length on his left leg, directly below the knee. The next morning, at approximately 10:00 or 11:00 a.m., defendant went to the Irvington General Hospital emergency room, complaining of pain to his chest, wrists and knees. After x-rays were taken of those parts of his body, defendant was released. Six days later, defendant presented himself to Dr. Burgess Lee Berlin, an orthopedic surgeon who had previously treated defendant. The doctor has known defendant for approximately eleven years, both of them having been on staff at the same hospital. Defendant became Berlin's patient approximately four to five years prior.

Berlin testified concerning his examination of defendant. On September 22, 2006, after taking a medical history from defendant concerning the injuries he complained of, the doctor examined defendant. Berlin detected spasms in defendant's lower back; swelling of both knees; and an infected 4-1/2 inch laceration on the left leg immediately below the knee. Prior examinations of defendant had not disclosed any evidence of injuries to defendant's spine or to his knee cartilages. Based on defendant's complaints and his examination, Berlin clinically diagnosed defendant as possibly suffering from torn cartilages in both knees and a slipped disk.

On October 5, 2005, defendant submitted to MRI examinations. The MRI on the lower back disclosed a herniation at the L-3 - 4 level. The MRI's of the knees disclosed torn minisci of both knees. The doctor opined that the injuries to defendant's back and left knee were causally related to the motor vehicle accident. It was the doctor's opinion that defendant could not perform the field sobriety tests at the scene because of the injuries he sustained in the accident.

II.

The Municipal Court determined that the Alcotest instrument was in proper working order, that Rubelowsky was a certified Alcotest operator; and that the breath test was administered in accordance with proper procedures. Accordingly, the Municipal Court determined that defendant's BAC reading exceeded the statutory per se violation level of .08. The Municipal Court also accepted Patrolmen Ahlert's and Rubelowsky's opinions that defendant was intoxicated based on their observations of defendant at the scene, including his performance of the field sobriety tests, and at headquarters. Thus, the court also determined defendant was guilty of driving while intoxicated based on his physical condition.

Concerning defendant's testimony as to how the accident happened and of not being able to perform the field sobriety tests because of injuries suffered in the accident, the court determined defendant not credible. As to how the accident happened, the court found that, contrary to defendant's testimony that his pager had sounded and the accident occurred when he attempted to look at the pager to determine its responsive telephone number, defendant only informed Ahlert that his motor vehicle pulled to the right. As to defendant's inability to perform the field sobriety tests, the court noted that defendant had informed both the police and first-aid squad members he had not suffered any injuries requiring medical assistance; and that, although defendant felt some pain in his knees, he told Ahlert and Paige that he was able to perform the field tests.

The court also determined defendant's testimony concerning the amount of alcohol he had consumed not credible. Although defendant testified that Labessiere had opened a bottle of French wine, the bottle found in defendant's car was "a bottle of red wine, Napa Valley red wine. And the doctor's testimony is that five glasses came out of that bottle and it still left a half a bottle of wine. That just doesn't make a whole lot of sense to me unless they were shot glasses."

On appeal de novo, the Law Division also determined defendant guilty of driving under the influence based on the Alcotest reading. As to defendant's physical condition, the trial judge gave significant weight to the video showing defendant attempting to perform the heel-to-toe walk and the one-leg stand test. The court noted that the tape showed defendant's failure to comply with Ahlert's instructions while Berlin had only opined that defendant could not physically perform the tests because of his injuries, not that his mental faculties had been impaired by the injuries. The trial judge also rejected defendant's testimony concerning his inability to perform the balance test because of injuries: "[defendant] indicated that he could walk back [to Ahlert's] car without any difficulty. If that were the case, then obviously the knees and all those other injuries weren't bothering him. He indicated he was fine."

In determining defendant guilty, the judge stated:

So where does that leave me through all of this? Well, first of all, the readings are admissible. The readings to the lowest two digits are .20. That certainly exceeds the lawfully permissible reading. And it's a per se violation.

As far as observations, you've got the operation of the vehicle. You've got the odor of the alcohol. You've got the tests that -- I'm talking about the neurological and -- the neurophysical test, the failure to obey the instructions, the opinions of the police officers, the various things I've already referenced. And I may be forgetting some of them.

Obviously, Dr. Berlin['s] and [defendant's] . . . testimony was not accepted. I have to give due deference, or if it was accepted, it was accepted in a limited fashion. So based upon everything I've said and all the findings I've made, and it's taken me quite some time to do this, but I know how important it is, not only to the State but seemingly more important to [defendant], who has a practice, who has patients, who has people that rely upon him, who has to get to various hospitals, who on a third offence is subject to some mandatory penalties, I thought it deserved the time that I have given it.

III.

On appeal, defendant argues:

POINT I.

THE LAW DIVISION CONVICTION IS PREMISED ON A PER SE VIOLATION ONLY BASED ON AN ALCOTEST READING OF .20%.

POINT II.

THE ALCOTEST READING IS UNRELIABLE AND INADMISSIBLE FOR THE OPERATOR'S FAILURE TO OBSERVE DEFENDANT FOR THE TWENTY MINUTES.

POINT III.

THE MUNICIPAL COURT JUDGE IMPROPERLY REFUSED TO PERMIT DEFENDANT'S EXPERT TO TESTIFY.

Appeals from the Municipal Court to the Law Division are de novo. R. 3:23-8. The "function [of the trial judge] is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge must make his or her "own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div. 1983), certif. denied, 95 N.J. 197 (1983). The trial judge's function differs from this court's function. "His [or hers] is not the appellate function governed by the substantial evidence rule[,] but rather an independent fact-finding function . . . ." Ibid.

Our scope of review is a limited one. "It is not our function . . . to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case." State v. Emery, 27 N.J. 348, 353 (1958). "The test is 'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J 599, 615 (1997) (quoting Johnson, supra, 42 N.J. at 162) (alteration in original). It is only when we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . should [we] appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (internal citations omitted). However, "[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).

IV.

The State carries the burden of proving beyond a reasonable doubt that a defendant is guilty of driving while intoxicated. Emery, supra, 27 N.J. at 353. N.J.S.A. 39:4-50(a) creates one offense that may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004). "A failure of proof on one aspect is not, by any measure, an acquittal." Ibid.

Proof of a defendant's physical condition typically consists of proof by testimony of the police officer's observations. State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987). A police officer is permitted to give his or her lay opinion as to whether a defendant is under the influence of alcohol. State v. Bealor, 187 N.J. 574, 585 (2006) (holding that "because sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish alcohol intoxication"); see also State v. Irelan, 375 N.J. Super. 100, 106-07 (App. Div. 2005). Additionally, the trial court may rely on direct and circumstantial evidence to determine whether the elements of the offense are met. Emery, supra, 27 N.J. at 356. It is against these principles that we consider defendant's arguments.

In Point I, defendant argues that the Law Division judge erred by not dismissing the charge of operating the motor vehicle under the influence of alcohol based on the State's failure to prove probable cause for his arrest. Based on the record before us, we determine this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also argues in Point I that if we conclude that the Alcotest BAC reading is inadmissible for reasons argued in Point II of his brief, we should remand this matter to the Law Division to enter a judgment of not guilty because the Law Division judge did not expressly determine defendant's guilt based on his physical condition, only on his BAC level. At oral argument, we raised the issue of whether remanding this matter to the Law Division to render a determination of defendant's guilt based on defendant's physical condition would violate the principle of double jeopardy. We requested counsel to file supplemental memorandums of law on the issue. Defendant contends that any remand to the Law Division for further findings on this matter would constitute double jeopardy and a violation of due process and fundamental fairness. We conclude otherwise.

Initially, we agree with defendant's argument that, although the Law Division judge expressly determined defendant's guilt under the per se standard of N.J.S.A. 39:4-50(a), he did not expressly state that he found defendant guilty of the charge based on his physical condition. However, we disagree with defendant's argument that remanding the matter for the Law Division judge to expressly state whether he finds defendant guilty or not guilty based on his physical condition is prohibited by the principle of double jeopardy, due process, and fundamental fairness.

"The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." State v. Widmaier, 157 N.J. 475, 489-90 (1999). Here, the Law Division judge did not make a "not guilty" finding based on defendant's condition, nor did he unequivocally find that defendant was guilty of anything more than the per se violation of N.J.S.A. 39:4-50(a). What the judge did was note the observations and opinions of the officers referred to earlier in his decision, but he failed to make a definitive conclusion as to what those observations were indicative of - defendant's guilt or innocence. Because a remand will not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, we conclude that such remand would not violate the principles of double jeopardy or due process. Kashi, supra, 180 N.J. at 48; see State v. Smith, 253 N.J. Super. 145, 148-49 (App. Div. 1992) (remanding a bail jumping conviction, N.J.S.A. 2C:29-7, to the Law Division for the trial judge to make further findings of fact and conclusions of law on the existing record as to whether defendant had fled to avoid apprehension for "a crime of third-degree or greater" necessary to sustain a conviction for third-degree bail jumping).

Defendant cites State v. Sparks, 261 N.J. Super. 458 (App. Div. 1993), in support of his argument that a remand would be improper. We find defendant's reliance on Sparks misplaced. In Sparks, defendant was charged with the disorderly persons offense of possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). Id. at 459. At the Municipal Court proceeding, the judge admitted evidence of a laboratory report that should have been excluded as untimely. Id. at 460-61. On de novo review, the Law Division correctly found that the evidence was inappropriately admitted, but improperly remanded the matter to the Municipal Court for a retrial. Ibid. Reversing and remanding for a judgment of acquittal, we explained that "[t]he hearing in the Law Division required exclusion of the lab certificate and consideration of the case solely on the remaining testimony." Id. at 461-62. Because "[e]xclusion of the laboratory certificate left the State without proof necessary to sustain a conviction[,]" we acquitted the defendant. Id. at 460.

This case is distinguishable from Sparks because, even if the Alcotest result is determined inadmissible, defendant can still be convicted based on police observations of his physical manifestations and the police officers' opinions as to defendant's intoxication. Kashi, supra, 360 N.J. Super. at 545. Moreover, we only acquitted the defendant in Sparks because of the fact that the conviction could not be sustained without the inadmissible evidence. Ibid. It follows that, if in Sparks the State had sufficient evidence other than the lab report to convict the defendant, we would have permitted the remand and retrial.

We are satisfied that a limited remand to the Law Division for the trial judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition is not prohibited by the principles of double jeopardy, due process, or fundamental fairness. We are also satisfied that that remand should occur prior to our addressing defendant's arguments in Point II and III of his brief, with this court retaining jurisdiction in the matter. Accordingly, we remand the matter to the Law Division for the judge to make an expressed determination of defendant's guilt or innocence based on defendant's physical condition. No additional evidence shall be admitted on remand; rather, the judge's determination must be based on the existing record. The judge shall conclude the remand proceeding and advise this court of his findings and conclusions within thirty days of the date of this opinion.

 
Remanded to the Law Division for further proceedings consisting with this opinion; we retain jurisdiction.

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

The Alcotest instrument used to test defendant was the Alcotest Model No. 7110 MKIII (the Alcotest). This Alcotest, when utilized with New Jersey Firmware version 3.11, was determined generally scientifically reliable, with certain modifications, to "permit its results to be admissible . . . to prove a per se violation of [N.J.S.A. 39:4-50(a)]." State v. Chun, 194 N.J. 54, 65, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The present matter was tried in both the Municipal Court and the Law Division prior to the Supreme Court's decision.

"The Altotest uses both infrared (IR) technology and electrical chemical (EC) oxidation in a fuel cell to measure breath alcohol concentration. The devise therefore produces two test results for each breath sample, one derived from an IR reading and the other, by and large, from an EC reading." Id. at 78.

Truncating "involves simply reporting the first and second decimal places and dropping the third. . . . The effect of truncating, as opposed to rounding, is to under-report the concentration, to the benefit of the arrestee." Id. at 83.

As to defendant's inability to perform the field sobriety tests, the court only considered defendant's performance of the heel-to-toe walk test and the one-leg stand test. The court did not consider the officer's testimony as to defendant's inability to perform the HGN test in determining defendant's guilt; the court, however, did consider defendant's failure to follow Ahlert's instructions in attempting the HGN test in determining probable cause for the arrest. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000) (declining to take judicial notice of the general acceptance of the reliability of the HGN test as evidence of a defendant's intoxication).

(continued)

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A-3558-06T4

February 26, 2009