STATE OF NEW JERSEY v. JOHN TOBIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3994-07T43994-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN TOBIN,

Defendant-Appellant.

________________________________

 

Submitted: June 9, 2009 - Decided:

Before Judges Axelrad and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. MA-2007-058.

The O'Mara Law Firm, attorneys for appellant (Peter M. O'Mara, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, John Tobin, appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was initially found guilty in the North Caldwell/Essex Fells Municipal Court. He was sentenced as a first-time DWI offender, N.J.S.A. 39:4-50(a)(1)(ii), to a seven-month suspension of his driver's license, twelve hours at an Intoxicated Driver Resource Center, a $300 fine and other fines and monetary penalties. He appealed.

After a trial de novo in Superior Court, Rule 3:23-8(a), defendant was again convicted of the DWI offense. He was sentenced just as he was in municipal court and a stay of various portions of the order was entered pending appeal.

On appeal, defendant presents the following arguments:

POINT I

THE EVIDENCE PRESENTED BELOW DOES NOT SUPPORT THE DECISION TO PERFORM SOBRIETY TESTING

POINT II

THERE WAS NOT SUFFICIENT EVIDENCE TO PROVE MR. TOBIN GUILTY BEYOND A REASONABLE DOUBT BASED ON THE OBSERVATIONS

POINT III

THE OBTAINED BREATHALYZER READINGS SHOULD BE SUPPRESSED AS THE STATE HAS FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THEY ARE ADMISSIBLE

Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm.

The facts are as follows. On April 7, 2007, at approximately 1:50 a.m., defendant was stopped in Verona by North Caldwell Police Officer Marly Arturo, after she observed by radar that his vehicle was traveling at fifty miles per hour in a thirty-five mile per hour zone. Despite the officer activating her overhead lights and thereafter sounding her siren, defendant failed to pull over to the side of the road for several minutes until a Verona police car maneuvered in front of him, forcing him to stop.

When the officer approached the car, she smelled alcohol on defendant's breath. Defendant admitted to consuming two drinks. Officer Arturo observed that defendant's eyes were bloodshot, his eyelids were droopy, his face was flushed, and he moved his hands slowly. When asked for his driver's license and insurance card, defendant just "stared at [the officer]" and took a "very long time to find his documents." In fact, the officer had to point out defendant's insurance card to him even though it was right in front of him. Defendant then produced an expired driver's license and an expired insurance card.

Based on her experience and observations, Officer Arturo suspected defendant to be intoxicated. She asked him to exit the vehicle to perform field sobriety tests. Defendant informed the officer he had nothing wrong with his legs that would impair him from performing the tests. Defendant had difficulty performing the tests. While listening to instructions for performing the walk-and-turn test, defendant could not keep his balance. Furthermore, while performing the test, defendant used his arms to balance himself, failed to touch his heels to his toes, was not "sturdy" and lost his balance while taking steps. While performing the one-leg stand test, defendant swayed while attempting to balance, used his arms to balance, and put his foot down twice. Officer Arturo further observed that defendant was "swaying and staggering" when attempting to walk and "swaying" when attempting to stand. She further noted that his voice was hoarse and he spoke very slowly. The officer did comment that defendant's demeanor was cooperative and polite. Based on her observations, the officer formed an opinion that defendant was impaired and unable to drive. She therefore placed him under arrest and took him to the Fairfield Police Station.

Two breathalyzer tests were administered by Sergeant Carl Strodthoff, a certified breathalyzer operator. The first sample was taken at 2:55 a.m., resulting in a blood alcohol content (BAC) reading of .12% and the second was conducted ten minutes later, resulting in a BAC reading of .13%. After conducting these two tests, Sergeant Strodthoff concluded that defendant was under the influence of alcohol and thus charged him.

Based on the testimony and evidence presented at trial, Judge Donald L. O'Connor found defendant guilty of driving while intoxicated both on the basis of Officer Arturo's and Sergeant Strodthoff's testimony, which he expressly credited, and the breathalyzer test results. In her de novo review of the municipal court conviction, the Law Division judge detailed Officer Arturo's testimony as to defendant's driving behavior, his physical appearance and responses to the officer, her observations of defendant's performance of the field sobriety tests, and Sergeant Strodthoff's explanation of his administration and results of the breathalyzer test. Judge Ramona Santiago also noted the credibility assessments made by the municipal court judge and ultimately made the same findings that defendant was guilty of DWI based on both the officer's observations and the breathalyzer readings.

In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law, although it is bound by the evidentiary record of the municipal court. State v. Loce, 267 N.J. Super. 102, 104 (Law Div. 1991), aff'd o.b., 267 N.J. Super. 10 (App. Div.), certif. denied, 134 N.J. 563 (1993). The Law Division must also give due regard to the municipal judge's opportunity to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). However, as with the Law Division, we are not in the position to judge credibility and do not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). We may "not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence[,]" State v. Barone, 147 N.J. 599, 615 (1997), but we give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Unless we determine the Law Division's finding was "clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Avena, supra, 281 N.J. Super. at 333 (citations omitted).

The evidence presented at trial clearly demonstrated that defendant's actions necessitated the performance of a sobriety test. It is immaterial that defendant was not involved in an automobile accident and did not affect any other cars by his driving, or that he produced documents without fumbling or dropping them, or that he was allowed to wait in his own car for Sergeant Strodthoff to arrive after defendant performed the field sobriety tests. Officer Arturo had a reasonable and particularized suspicion of criminal activity based on her experience and objective observations to justify her decision to ask defendant to perform field sobriety tests. See State v. Nishina, 175 N.J. 502, 511 (2003); State v. Nikola, 359 N.J. Super. 573, 583 (App. Div.), certif. denied, 178 N.J. 30 (2003). The police correctly stopped defendant for speeding, and based on the totality of the following circumstances, suspected him to be intoxicated: his delay in pulling over after the lights and siren were activated; taking several minutes to produce his documents; admitting he consumed two alcoholic beverages; and being found by the officer to have alcohol on his breath, a flushed face, and bloodshot eyes. See State v. Davis, 104 N.J. 490, 501 (1986) (setting forth the two-step inquiry for determining whether the totality of the circumstances constitutes a particularized suspicion); see also State v. Stovall, 170 N.J. 346, 356 (2002).

There was also sufficient credible testimony by Officer Arturo, to which deference is warranted, of defendant's subsequent poor performance on the field sobriety tests. Merely because these tests were performed off-camera is not fatal to their reliability as there was substantial detailed description provided by the officer of defendant's improper use of his arms, swaying and unsteady movements. We are satisfied that Officer Arturo's observations alone presented sufficient credible evidence to demonstrate that defendant's mental faculties and physical coordination were deleteriously affected by alcohol, and that it was improper for him to drive on the roadway. See State v. Tamburro, 68 N.J. 414, 420-21 (1975); Johnson, supra, 42 N.J. at 165. Accordingly, as the State proved beyond a reasonable doubt that defendant was driving while intoxicated without reference to the breathalyzer test results, we need not address defendant's challenge to the operation of the breathalyzer.

Affirmed. The stay is dissolved.

 

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A-3994-07T4

July 23, 2009