STATE OF NEW JERSEY v. JAMES MERTZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0610-09T40610-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES MERTZ,

Defendant-Appellant.

______________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 06-09.

Stephen M. Pascarella, attorney for appellant.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Thomas Cannavo, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Mertz appeals from a judgment of conviction after trial de novo in the Law Division for driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusing to take a breath test, N.J.S.A. 39:4-50.2; and reckless driving, N.J.S.A. 39:4-96. We affirm.

At about 9:20 p.m. on February 5, 2008, in Point Pleasant Beach, defendant lost control of his car and drove down a railroad embankment and into a tree. The police responded immediately to the scene. They did not see any visible signs of injury to defendant, and he declined emergency medical services. When questioning defendant about the cause of the accident, the police smelled alcohol. They conducted roadside sobriety testing, which was recorded by the dashboard camera of a police car. Because defendant performed poorly on the physical tests and showed other signs of being under the influence of alcohol, the police arrested and transported him to the police station for an Alcotest to measure his blood alcohol content. Defendant refused to submit to the breath test after the police provided all the proper advice and warnings. He was then charged with the three listed offenses.

Defendant was tried in the municipal court of Point Pleasant Beach over four dates from July 21, 2008, through January 16, 2009. Witnesses at trial were two police officers who testified for the State and an eyewitness to the accident and a doctor who testified for the defense. The video recording from the police car was also admitted in evidence. Defendant elected not to testify.

The municipal court judge found defendant guilty of all three charges. Defendant, who was fifty-three years old at the time of sentencing, had no prior similar violations and a clean driving record. On the charge of DWI, the municipal court sentenced defendant to a fine of $306, ninety-day suspension of driving privileges, twelve hours at the Intoxicated Driver Resource Center (IDRC), $200 surcharge, $33 costs, $50 payable to the Violent Crime Compensation Board (VCCB), and $75 payable to the Safe Neighborhood Fund. On the refusal charge, defendant was sentenced to another fine of $306, seven months' revocation of driving privileges consecutive to the revocation for DWI, twelve hours IDRC concurrent with the DWI sentence, $100 surcharge, and $33 costs. The conviction for reckless driving was merged into the DWI for purposes of sentencing.

Defendant appealed his conviction to the Superior Court, Law Division, under Rule 3:23. After reviewing the record of the municipal court proceedings and viewing the video evidence, the Law Division judge also found defendant guilty of all three charges and re-imposed the same sentences. Both the municipal court and the Law Division stayed defendant's sentences pending appeal.

Defendant raises the following arguments in this appeal:

POINT I THE STATE FAILED TO MEET ITS BURDEN OF

PROOF ON THE CHARGE OF DWI (N.J.S.A.

39:4-50).

POINT II THE STATE FAILED TO PROVE DEFENDANT'S

GUILT OF REFUSAL TO SUBMIT TO A CHEMICAL

TEST BEYOND A REASONABLE DOUBT.

Our standard of review of the findings of fact and, in particular, the credibility determinations of the trial courts is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 148, 162 (1964)). We do not attempt to determine how we would have decided the matter but "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Johnson, supra, 42 N.J. at 161).

Defendant contended at trial that he was not under the influence of alcohol but had suffered a head injury in the accident that caused him to fail the roadside sobriety testing and also made him confused when he refused to submit to the Alcotest procedure. We conclude, however, that the courts below had sufficient evidence to reject the defense testimony and to credit the testimony of the officers who described their observations of defendant's conduct and performance on the sobriety testing as corroborated by the video evidence.

Defendant argues that the officers, Patrolman Kyle Boturla and Sergeant Joseph Michigan, were not credible in testifying that they smelled alcohol on defendant at the scene of the accident and that defendant was slurring his speech and displaying other physical signs of intoxication. Defendant relies on the testimony of the eyewitness, John Kelly, a young man who saw the accident as it happened, immediately called 911, and then went to defendant's aid. Kelly testified that he did not smell alcohol on defendant and did not observe any other sign of intoxication.

The trial judges did not question whether Kelly had testified truthfully, but they observed that he was a young man who was attempting to help at the scene of an accident, he only had about one minute of contact with defendant, and he was not looking for signs of intoxication. In addition, his testimony was consistent with that of Officer Boturla, who said that he did not initially smell alcohol on defendant near the wrecked car but only when he got closer to defendant's person to direct him not to turn away as he was answering the officer's questions. Also, Boturla testified that he noticed defendant was slurring words only after accompanying him to the shoulder of the road and questioning him for some seven or eight minutes. Sergeant Michigan testified that he smelled alcohol on defendant and noticed slurring of speech as he was conducting a horizontal gaze nystagmus test, which required him to be in close contact with defendant. Both officers also testified that defendant's eyes were watery and bloodshot. Kelly's testimony did not significantly contradict the testimony of the officers.

Defendant emphasizes the testimony of Dr. S. Thomas Westerman, who, over the prosecutor's objection, was permitted to testify as an expert witness regarding defendant's temporary mental condition immediately after the accident. Dr. Westerman testified that defendant had suffered a concussion in the accident and was impaired by concussive syndrome rather than alcohol at the time of the roadside sobriety testing. He also testified that defendant was confused in the police station because of his head injury when directed by the police to submit to an Alcotest.

Both trial courts soundly rejected the opinions of Dr. Westerman because he first met and examined defendant more than two months after the accident and he relied on information provided by defendant, which was proven to be inaccurate. At his initial examination by Dr. Westerman on April 7, 2008, defendant claimed he had a loss of hearing for several hours after the accident, and Dr. Westerman wrote a report diagnosing hearing loss and tinnitus caused by the head trauma. He also concluded that the inner ear condition affected defendant's balance and hence his performance on the roadside tests.

However, after being provided a copy of the video recording and viewing it on June 18, 2008, the doctor was compelled to modify his conclusion that defendant could not hear after the accident. The recording shows defendant holding a normal conversation with the officers. Dr. Westerman then revised his opinion to indicate that concussive syndrome caused physical impairment and confusion that affected defendant's ability to perform the roadside tests and his understanding of a driver's obligation to submit to breath testing.

The trial judges concluded that Dr. Westerman's opinions were not reliable and rejected them completely. It was their function to accept or reject the testimony of an expert witness, and they had substantial basis for reaching their conclusions. See State v. Cryan, 363 N.J. Super. 442, 457 (App. Div. 2003). The doctor's examination of defendant more than two months after the accident did not provide objective medical evidence supporting his conclusions. The doctor relied on defendant's reporting of his condition and the video recording, but these factual data did not contain reliable support for the doctor's conclusions.

The State properly presented evidence of defendant's inability to perform field sobriety tests to prove he was under the influence of alcohol. See Johnson, supra, 42 N.J. at 166; State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002). In addition, the police and the court relied on other observational evidence of defendant's intoxication, such as his watery, bloodshot eyes. "[B]ecause sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish intoxication." State v. Bealor, 187 N.J. 574, 585 (2006).

The court could also take into account the manner and occurrence of the accident as evidence of impairment in that defendant was not able to control his car. See State v. Ravotto, 169 N.J. 227, 242 (2001); State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). In addition, defendant's refusal to submit to the breath testing was further evidence that he had consumed alcoholic beverages but did not want that evidence to be revealed. See Cryan, supra, 363 N.J. Super. at 456; State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000); see also State v. Stever, 107 N.J. 543, 557-60 (no federal or State constitutional bar to admission of a person's refusal to submit to breath testing in prosecution for DWI), cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987). The evidence as a whole was sufficient for the trial courts to conclude that defendant had operated his car while under the influence of alcohol.

Having reached these conclusions, we need not address further defendant's argument that he lacked the requisite state of mind to be found guilty of refusing to take the Alcotest. Dr. Westerman's opinion that defendant's judgment was impaired by a concussion so that he could not knowingly refuse is contradicted by other evidence presented at trial. Defendant failed to meet his burden of demonstrating that he was so confused that he did not knowingly refuse to take the breath test. See State v. Leavitt, 107 N.J. 534, 542 (1987) (defendant bears the burden of proving confusion to refute knowledge of his obligation to submit to breath testing).

Finally, we reject defendant's argument that the police did not have probable cause to arrest him at the scene of the accident and to require that he submit to breath testing. The occurrence of the single-vehicle accident, the smell of alcohol, and the inability of defendant to perform the roadside sobriety tests were more than adequate to constitute probable cause for his arrest. See Schmerber v. California, 384 U.S. 757, 768-69, 86 S. Ct. 1826, 1834-35, 16 L. Ed. 2d 908, 918-19 (1966).

Affirmed. The stay of sentence granted by the trial court shall expire thirty days after the date of this opinion.

 

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10

A-0610-09T4

 

September 1, 2010