STATE OF NEW JERSEY v. LLOYD FURBERT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0474-08T40474-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LLOYD FURBERT,

Defendant-Appellant.

_________________________________

 

Argued December 2, 2009 - Decided

Before Judges Cuff, Payne and Waugh.

On Appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-068.

Damiano M. Fracasso argued the cause for appellant.

Amy K. Mastrosimone, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Mastrosimone, on the brief).

PER CURIAM

Defendant Lloyd Furbert appeals his conviction for driving while intoxicated, contrary to N.J.S.A. 39:4-50. We affirm the conviction, but remand for re-sentencing.

I.

On October 20, 2006, at approximately 1:53 p.m., Patrolman Ricky Scott Lindner responded to the scene of an accident at the intersection of Route 46 and Naughtright Road in the Township of Mount Olive. Upon arrival, Lindner observed a rental box truck and a Toyota Camry pulled off to the side of the road. The Camry had sustained some front-end damage and the box truck had some minor damage to the rear bumper. The weather was rainy and windy.

Lindner spoke with the driver of the Camry, later identified as Furbert, who stated he was not injured. Furbert also told Lindner that the accident was his fault. As Lindner asked Furbert for his driver's credentials, he noticed a heavy odor of alcohol emanating from the vehicle. Furbert had trouble removing his wallet from his back pocket and fumbled with his credentials. Lindner also observed that Furbert's eyes were bloodshot and that his speech was slurred.

Lindner asked Furbert to exit the vehicle in order to perform field sobriety tests. As he exited the vehicle, Furbert lost his balance and had to grab hold of the car to steady himself. As Lindner directed Furbert to a location where the tests could be performed, he observed that Furbert was swaying back and forth as he walked.

Lindner then asked Furbert to perform the walk-and-turn field sobriety test, which required him to walk heel to toe for a certain distance, turn, and walk back to the starting location. Lindner demonstrated the procedure for Furbert. As soon as Furbert started to perform the test, he lost his balance and separated his feet. He did not walk heel to toe or take the correct number of steps. Furbert then said to Lindner: "I'm drunk." Lindner discontinued the test and placed Furbert under arrest.

According to Lindner, while transporting Furbert to the police station, his vehicle became permeated by the odor of alcohol. Once they arrived at the station, Furbert placed a mint in his mouth. He was ordered to spit out the mint and did so. Lindner then waited twenty-four minutes before administering the Alcotest.

During the waiting period, Lindner read the Implied Consent Form to Furbert, who agreed to provide breath samples. The first successful sample was taken at 2:45 p.m. and the second at 2:48 p.m. The tests resulted in an average of 0.13 percent blood alcohol content (BAC). Furbert was then given his Miranda rights, which he agreed to waive. He admitted to consuming two vodka drinks earlier that day, one at 10:45 a.m. and another at approximately 1:45 p.m.

Furbert was charged with driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50; careless driving, contrary to N.J.S.A. 39:4-97; and reckless driving, contrary to N.J.S.A. 39:4-96. He appeared in the Mount Olive Municipal Court on November 27, 2006, for a preliminary hearing. The municipal trial was held on December 11, 2006, and continued on February 11, 2008. Defense counsel moved to suppress evidence, which motion was denied.

The municipal court judge found Furbert guilty of driving while intoxicated under both the "observational" and "per se" standards. He found him not guilty of careless and reckless driving. He imposed a fine of $300, $33 court costs, $200 surcharge, $50 VCCB, $75 Safe Neighborhood, twelve hours IDRC, and suspended Furbert's driving privileges for seven months. The municipal court judge stayed the sentence pending appeal.

On August 15, 2008, the Law Division judge held a trial de novo. He found Furbert guilty of violating N.J.S.A. 39:4-50. He entered an order "affirming" the judgment of the municipal court. This appeal followed.

II.

On appeal, Furbert raises the following issues:

I. THE STATE FAILED TO PROVE AN "UNDER THE INFLUENCE" VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT THROUGH THE USE OF ADMISSIBLE AND CREDIBLE EVIDENCE.

A. THE RESULTS OF THE STATE'S "ROADSIDE TESTS" OFFERED AT TRIAL DO NOT CONSTITUTE PROOF BEYOND A REASONABLE DOUBT OF THE DEFENDANT'S INTOXICATION.

1) THE STATE ALWAYS HAS THE BURDEN TO USE ONLY ADMISSIBLE EVIDENCE IN ITS CASE IN CHIEF.

2) THE STATE ALWAYS HAS THE BURDEN TO PROVE ITS TRIAL EVIDENCE IS ADMISSIBLE.

3) PSYCHOMOTOR TEST RESULTS ARE SCIENTIFIC TESTS AND THEREFORE SUBJECT TO THRESHOLD STANDARDS FOR ADMISSIBILITY.

4) PATROLMAN LINDNER'S "ROADSIDE TEST" IS "JUNK SCIENCE" AND THEREFORE NEITHER ADMISSIBLE, NOR EVIDENTIAL.

I. THE FRYE STANDARD.

II. THE HARVEY TEST.

III. THE N.J.R.E. 702 TEST.

IV. THE KELLY STANDARD FOR

EXPERTS.

B. CONCLUSION.

II. THE STATE FAILED TO PROVE A PER SE VIOLATION OF N.J.S.A. 39:4-50 BEYOND A REASONABLE DOUBT THROUGH THE USE OF ADMISSIBLE AND CREDIBLE EVIDENCE.

A. THE STATE'S BREATH TEST READINGS ARE INADMISSIBLE.

1) THE ALCOTEST DEVICE WAS NOT OPERATED IN ACCORDANCE WITH N.J.A.C. 13:51-3.6.

2) THE ALCOTEST BREATH TESTS WERE NOT ADMINISTERED IN ACCORDANCE WITH STATE V. CHUN, 194 N.J. 54 (2008).

I. CHUN MANDATES 20 MINUTES OF CONTINUOUS AND UNINTERRUPTED WAITING AND OBSERVATION OF THE SUBJECT AS A CONDITION OF ADMISSIBILITY.

II. CHUN MANDATES THE REMOVAL OF ALL CELLULAR TELEPHONES AND PORTABLE ELECTRONIC DEVICES FROM THE TESTING AREA AS A CONDITION OF ADMISSIBILITY.

III. CHUN MANDATES A NEW MOUTHPIECE FOR EACH AND EVERY SAMPLE OF BREATH TAKEN AS A CONDITION OF ADMISSIBILITY.

IV. CHUN MANDATES THAT THE ALCOTEST DEVICE'S FIRMWARE BE "LOCKED" AS A CONDITION OF ADMISSIBILITY.

V. CHUN MANDATES THAT THE ALCOTEST MACHINE AND TEMPERATURE PROBE BE RECERTIFIED EVERY SIX MONTHS AS A CONDITION OF ADMISSIBILITY.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give "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). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

A.

We first address Furbert's challenge to the Law Division judge's finding of guilt based upon Lindner's observations. In that regard, the Law Division judge explained his reasons as follows:

The concept of being "under the influence" of alcohol prescribes a general condition, as a result of which the motor vehicle operator can be said to be so affected in judgment or control that it is improper for him to drive. State v. Johnson, 42 N.J. 146, 165 (1964). An under-the-influence case must always be proven through opinion testimony; and in the case of driving under the influence, lay testimony is all that is required. Id. at 166. A lay witness is permitted to give his or her opinion in matters of common knowledge and observation as long as the witness has actual knowledge, acquired through senses of the matter, and that the lay opinion will help the trier of fact understand the testimony or determine a fact in issue. State v. LaBrutto, 144 N.J. 187, 197-98 (1998).

In this instance, the witness, Officer Lindner, was a nineteen year veteran who had testified to being trained in recognizing people under the influence as well as having conducted or been involved in up to 400 driving while intoxicated investigations. Here, the totality of the circumstances led Officer Lindner to believe the defendant was driving while intoxicated. These circumstances included: 1) the defendant crashing into the back of a box truck and admitting it was his fault; 2) the heavy odor of alcohol coming from the defendant's vehicle; 3) the fumbling and dropping of documents; 4) the inability of the defendant to retrieve his wallet from his back pocket; 5) the defendant's bloodshot eyes; 6) the defendant's slurred speech; 7) the defendant nearly falling when exiting his vehicle; 8) the defendant swaying back and forth as he walked toward the officer's vehicle; 9) the failure of the demonstrated walk and turn test; 10) the odor of alcohol following [Furbert] to the officer's patrol car; and 11) the defendant admitting he was "drunk."

Although, the defense tried to explain some of these occurrences, the totality of the circumstances would lead one to believe the defendant was operating a motor vehicle while under the influence beyond a reasonable doubt. The defense attempted to blur the issue by focusing on the "scientific reliability" of the roadside sobriety test; however, as the Court in Johnson pointed out, the opinion of a lay person is not scientific. Further, even if the failure of the actual roadside sobriety test was inadmissible, the remaining circumstances would still lead one to believe the defendant was intoxicated.

[(Footnote omitted).]

The core of Furbert's argument is that Lindner's testimony concerning Furbert's performance on the walk-and-turn field sobriety test was improperly admitted because the State failed to establish a scientific basis for the test. In essence, he argues that our holding in State v. Doriguzzi, 334 N.J. Super. 530, 538-40 (App. Div. 2000), with respect to the horizontal gaze nystagmus test, should be extended to other field sobriety tests, such as the one involved in this case. We disagree.

Proof of a defendant's physical condition of intoxication typically consists of proof through the testimony of a police officer with respect to his or her observations of the defendant. 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 lay opinion testimony as to whether a defendant was 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).

Our review of the record confirms that the judge relied on Lindner's testimony with respect to his observations of Furbert's conduct prior to and during the stop, a result that is clearly permitted by Bealor, supra, 187 N.J. at 585. There was no "scientific" testimony of the type prohibited by Doriguzzi, supra, 334 N.J. Super. at 538-40. Although Furbert offered testimony concerning medical problems with his hip, the judge's conclusion that Lindner's observations demonstrated that Furbert was driving under the influence is supported in the record, including the video record of the stop. Consequently, we affirm Furbert's conviction for violating N.J.S.A. 39:4-50.

B.

Because we have affirmed the conviction based upon the testimony concerning Lindner's observations, we need not reach the issues raised with respect to the administration of the Alcotest.

C.

The Law Division judge incorrectly expressed his determination on the de novo appeal as "affirming" the decision of the municipal court. The judge's function on the trial de novo was to consider the entire case anew, except to the extent he was obligated to give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." Johnson, supra, 42 N.J. at 157. The judge appropriately considered the issue of Furbert's guilt or innocence de novo, but does not appear to have done so with respect to the sentence.

Pursuant to Rule 3:23-8(e), "[w]hen a Law Division judge conducts a trial de novo and finds a defendant guilty[,] the sentence imposed by the municipal court may not be affirmed. Rather, the judge must 'exercise . . . independent judgment . . . in the matter of sentence.'" State v. Russo, 328 N.J. Super. 181, 186 n.3 (App. Div.) (quoting State v. States, 44 N.J. 285, 293 (1965)), certif. denied, 165 N.J. 134 (2000).

Consequently, we reverse the sentence and remand to the Law Division for resentencing. State v. Kromphold, 162 N.J. 345, 355 (2000).

Affirmed in part, reversed and remanded in part.

 

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

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A-0474-08T4

March 15, 2010