STATE OF NEW JERSEY v. CHIHWEI LU
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0724-09T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHIHWEI LU,
Defendant-Appellant.
________________________________
Argued May 4, 2010 Decided May 26, 2010
Before Judges Skillman and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Municipal Appeal No. 08-0116.
Michael R. Ascher argued the cause for
appellant (Einhorn, Harris, Ascher, Barbarito
& Frost, attorneys; Mr. Ascher, on the
brief).
John K. McNamara, Jr., Assistant Prosecutor,
argued the cause for respondent (Robert A.
Bianchi, Morris County Prosecutor, attorney
for respondent (Mr. McNamara, of counsel and
on the brief).
PER CURIAM
After a trial de novo in the Law Division, defendant
Chihwei Lu appeals from his conviction for driving while
intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). On
appeal, defendant presents the following arguments:
POINT I - THE STATE FAILED TO PROVE A
VIOLATION OF N.J.S.A. 39:4-50 BEYOND A
REASONABLE DOUBT.
POINT II - THE TESTIMONY OF BOTH [OFFICERS]
REGARDING THE ALLEGED INTOXICATION WAS PURE
NET OPINION WITHOUT ANY SPECIFIC REFERENCE
TO FACTS IN THE RECORD.
POINT III - THE DEFENDANT'S RIGHT TO FULLY
AND COMPLETELY CONFRONT THE WITNESS AGAINST
HIM WAS UNLAWFULLY ABRIDGED BY THE MUNICIPAL
COURT.
POINT IV - THE CONVICTION WAS BASED UPON THE
STATEMENTS OBTAINED FROM THE [DEFENDANT]
VIOLATED THE MIRANDA RULE.
Based on our review of the record and applicable law in
light of the contentions advanced by defendant, we affirm.
I.
According to Officer Thomas Gorman of the Denville Police
Department, at approximately 4:15 a.m. on December 28, 2008, he
stopped defendant for speeding. Upon approaching defendant's
vehicle, Gorman saw that defendant "appeared very lethargic,
his eyes were bloodshot, looked [glassy]." After detecting an
defendant's vehicle, Gorman
odor of alcohol emanating from
asked defendant how much he had to drink. Defendant replied
that he had consumed "Jack and Gingers," meaning Jack Daniels
or 7 beers." Based on the
liquor and ginger ale, and "6
foregoing, Gorman decided to administer field sobriety tests
and asked defendant to exit his vehicle.
A-0724-09T4
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Gorman first administered the Romberg test, a timing and
balance test that required defendant to stand at attention with
his arms to his side and tilt his head back for thirty seconds.
Officer Scott Welsh arrived at the scene after the test began,
and saw that defendant's eyes were glassy, his speech was
slurred, and he swayed. During the test, defendant noticeably
swayed front to back approximately two inches, failed to follow
Gorman's instructions, and failed to properly perform the test.
Defendant also failed to follow the officer's instructions and
to properly perform the one-leg stand test and the walk and
turn test.
Gorman concluded that defendant was under the influence of
alcohol and should not be operating a vehicle, and Welsh
concluded that defendant was intoxicated. Welsh then
administered the horizontal gaze nystagmus (HGN) test. He
asked defendant why he was stopped and how much he had to
drink, to which defendant replied that he was stopped for
speeding and that he had consumed Jack and Gingers and about
seven beers. According to Gorman, defendant also said to both
officers that he "shouldn't have been driving."
A-0724-09T4
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Gorman placed defendant under arrest and read him his
Miranda1 rights. While driving defendant to police
headquarters, Gorman smelled alcohol in his patrol car. At
headquarters, Gorman again read defendant his Miranda rights
before questioning him. The officer completed a drinking and
driving report, memorializing his conversation with and
defendant.2 The report indicated that
observations of
defendant's eyes were bloodshot and watery, his speech was
slow, his demeanor was indifferent, he had consumed a total of
seven drinks, i.e., Jack and Gingers and beers, between 10:00
p.m. on December 27, 2008 to 2:00 a.m. on December 28, 2008,
and he had eaten pizza at approximately 3:00 a.m. on December
28, 2008.
Defendant was also administered the Alcotest at police
headquarters. Due to deficiencies in the administration of the
test, the State chose not to rely on it at trial.
Defense counsel's cross-examination of the officers
centered on Gorman's administration and interpretation of the
field sobriety tests; on the drinking and driving report,
specifically that Gorman did not check boxes indicating that
1
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
2
Gorman also wrote an arrest report, which was admitted into
evidence at the Municipal Court trial but not submitted on
appeal.
A-0724-09T4
4
defendant had difficulty walking or standing, had an odor of
alcoholic beverage on his breath, or that his face was flushed;
and on a videotape of defendant at police headquarters, which
did not show him swaying, staggering or having trouble with his
balance.
Defendant testified that he had consumed approximately
three or four beers and one or two Jack and Gingers, that he
had a drink every half hour over a four-hour period, and that
he ate two slices of pizza thereafter. Defendant denied he was
speeding but admitted telling Gorman upon being stopped that he
had five or six drinks, after which Gorman asked him to exit
his vehicle. Defendant complied with Gorman's instructions for
the field sobriety tests and "thought" he had passed them.
However, he admitted that he swayed during the Romberg test,
that Gorman had to twice remind him to keep his head tilted
back, and that he missed numbers on the one-leg stand.
Defendant also explained that he said he should not have been
driving because he "got pulled over[,]" not because he had
consumed alcohol and was impaired.
Upon conclusion of defendant's testimony, Judge Arnold H.
Miniman viewed the videotape. The judge agreed that the
videotape did not show defendant staggering or having problems
with his balance at police headquarters. However, after
A-0724-09T4
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assessing defendant's testimony, the judge concluded it lacked
credibility. The judge found the officers' testimony credible.
Although the judge mentioned defendant's statement that he
should not have been driving, the judge did not rely on it.
After making factual findings, the judge found defendant guilty
of DWI, concluding as follows:
Taking the totality of the circumstances,
the fact the defendant was driving at a high
rate of speed, that there was an odor of
alcohol, that there was [an] admission of
what I call substantial drinking, that there
were observations of -- that would lead to a
belief that a defendant had been drinking,
observations of bloodshot eyes, odor of
alcohol, the actions on the tests, I'm
satisfied beyond a reasonable doubt that the
defendant was under the influence of alcohol
on December 28, 2008, to the point that if
there were an Alcotest reading, it would
have been at least an .08 if not higher.
And I'm satisfied that he is guilty of
violating the statute.
Because this was defendant's third DWI conviction, Judge Miniman
suspended his driving and registration privileges for ten years,
imposed a 180-day jail term and imposed the appropriate fine,
penalties and surcharge.
On appeal to the Law Division, Judge Dangler stated that he
"spent considerable time with the transcript of the appeal[,]"
and that he "had a chance to carefully review all of the
testimony[.]" The judge also reviewed the videotape and found
that it was not "very helpful to this [c]ourt . . . in making
A-0724-09T4
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the determination of whether [defendant] was under the
influence." After reviewing the evidence and making factual
findings, the judge discerned no reason to disturb Judge
Miniman's credibility determinations, and found defendant guilty
of DWI beyond a reasonable doubt. The judge never mentioned
defendant's statement that he should not have been driving.
Judge Dangler modified defendant's sentence to a 180-day
jail term with 90 days to be served in an in-patient alcohol
rehabilitation program, and gave defendant credit for 54 days of
time served. The judge also suspended defendant's driving and
registration privileges for ten years, and imposed the
appropriate fine, penalties and surcharge. This appeal followed
II.
Defendant contends in Point I that the State failed to
prove a violation of N.J.S.A. 39:4-50 beyond a reasonable doubt,
and that both judges failed to make adequate factual findings
and to consider exculpatory and contradictory evidence which
created reasonable doubt. We disagree.
On appeal from a municipal court to the Law Division, the
review is de novo on the record. R. 3:23-8(a). The Law
Division judge must make independent findings of fact and
conclusions of law based upon the evidentiary record of the
municipal court, and must give due regard to the opportunity of
A-0724-09T4
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a municipal court judge to assess the credibility of the
witnesses. State v. Johnson,
42 N.J. 146, 157 (1964). On
appeal from a Law Division decision, the issue is whether there
is "sufficient credible evidence present in the record" to
uphold the findings of the Law Division, not a municipal court.
Id. at 162. However, as with the Law Division, we are not in as
good of a position as the municipal court judge to determine
credibility, and should not make new credibility findings.
State v. Locurto,
157 N.J. 463, 470-71 (1999). "We do not weigh
the evidence, assess the credibility of witnesses, or make
conclusions about the evidence." State v. Barone,
147 N.J. 599,
615 (1997). We give due regard to the trial court's credibility
findings. State v. Cerefice,
335 N.J. Super. 374, 383 (App.
Div. 2000).
To prove the offense of driving while intoxicated, the
State must prove, in relevant part, that the defendant operated
a motor vehicle while under the influence of an intoxicating
liquor, narcotic, hallucinogenic or habit producing drug.
N.J.S.A. 39:4-50(a). "In a case involving intoxicating liquor,
'under the influence' means a condition which so affects the
judgment or control of a motor vehicle operator 'as to make it
State v. Cryan, 363
improper for him to drive on the highway.'"
A-0724-09T4
8 N.J. Super. 442, 455 (App. Div. 2003) (quoting Johnson, supra,
42 N.J. at 165).
To prove whether a defendant was "under the influence," the
State need not show that he or she was sodden with alcohol.
State v. Nemesh,
228 N.J. Super. 597, 608 (App. Div. 1988),
certif. denied,
114 N.J. 473 (1989). Rather, the State must
show "beyond a reasonable doubt that, at the time of his arrest,
defendant suffered from a substantial deterioration or
diminution of the mental faculties or physical capabilities[.]"
State v. Bealor,
187 N.J. 574, 590 (2006) (internal citations
omitted). A diminution of faculties and capabilities occurs
when the motorist's drinking has altered his or her coordination
and mental faculties so as to make it unsafe to drive. State v.
DiCarlo,
67 N.J. 321, 330 (1975).
A DWI conviction may be based upon physical evidence, such
as symptoms observed by the arresting police officers or failure
of the defendant to perform adequately on balance and
State v. Liberatore,
293 N.J. Super. 580,
coordination tests.
589 (Law Div.), aff'd o.b.,
293 N.J. Super. 535 (App. Div.
1996); see also State v. Ghegan,
213 N.J. Super. 383, 385 (App.
Div. 1986). A defendant's slurred speech and bloodshot eyes,
together with an odor of alcohol and poor performance on field
sobriety tests, are sufficient to sustain a DWI conviction. See
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State v. Morris,
262 N.J. Super. 413, 421-22 (App. Div. 1993);
Ghegan, supra,
213 N.J. Super. at 385.
Given our standard of review, we are satisfied that the
record contains sufficient credible evidence from Judge Dangler
could have found defendant guilty of DWI beyond a reasonable
doubt. Johnson, supra,
42 N.J. at 162. Defendant's slurred
speech, bloodshot, watery and glassy eyes, indifferent demeanor,
as well as the smell of alcohol, defendant's admission that he
consumed a substantial amount of alcohol, and his poor
performance on the field sobriety tests, were sufficient
reliable indicia that he operated a motor vehicle while under
the influence of intoxicating liquor.
We are also satisfied that both judges made sufficient
factual findings and considered exculpatory evidence, including
the videotape, which they rejected. We emphasize that a judge
sitting as the trier of fact is free to reject any evidence, "in
whole or in part, that he or she does not find credible[.]"
Cryan, supra,
363 N.J. Super. at 457. The credibility findings
made in this case are unassailable.
III.
Defendant contends in Point IV that Judge Miniman
erroneously admitted into evidence two statements that violated
his Miranda rights: (1) his statements about the amount of
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alcohol he consumed; and (2) his statement that he should not
have been driving. This contention lacks merit.
In finding defendant guilty of DWI, neither Judge Miniman,
nor Judge Dangler, relied on defendant's statement that he
should not have been driving. In fact, Judge Dangler did not
mention that statement at all. Accordingly, we focus on whether
defendant's statements about the amount of drinks he had
consumed violated his Miranda rights.
A DWI suspect is not entitled to Miranda warnings prior to
administration of field sobriety tests. State v. Ebert,
377 N.J. Super. 1, 9 (App. Div. 2005). Miranda does not apply to
the preliminary questions asked by a police officer, including
whether the defendant had been drinking. Id. at 10. Defendant
made his statement to Gorman that he had consumed six or seven
beers and an unspecified number of Jack and Gingers prior to the
administration of the field sobriety tests and in response to
preliminary questioning. The statement, therefore, was
admissible.
Although defendant had not received his Miranda rights
before Welsh questioned him, defendant gave the officer the same
response he had given Gorman about how much alcohol he had
consumed. Therefore, any violation of defendant's Miranda
rights constituted harmless error.
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IV.
Defendant's contentions in Points II and III about the
improper admission of the officers' "net opinion" that he was
under the influence of intoxicating liquor, and about Judge
Miniman's improper exclusion of cross-examination of Gorman
about his failure to conduct the HGN test, lack sufficient merit
R. 2:11-3(e)(2).
to warrant discussion in a written opinion.
However, we make the following brief comments.
We review a trial court's evidentiary determinations under
an abuse of discretion standard. State v. Buda,
195 N.J. 278,
294 (2008) (citing Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008)).
An abuse of discretion only arises on demonstration of "manifest
error or injustice." Hisenaj, supra,
195 N.J. at 20. An abuse
of discretion occurs when the trial judge's "decision [was] made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."
United States v. Scurry,
193 N.J. 492, 504 (2008) (citations
omitted) (alternation in original).
Applying these standards, we discern no abuse of discretion
in the admission of the officers' opinions that defendant was
under the influence of intoxicating liquor. The officers gave
these opinions as lay witnesses, not expert witnesses. "'New
Jersey has permitted the use of lay opinion testimony to
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establish alcohol intoxication.'" State v. Amelio,
197 N.J.
207, 214 (2008) (quoting Bealor, supra,
187 N.J. at 585). The
Court expressly noted that "'an ordinary citizen is qualified to
advance an opinion in a court proceeding that a person was
intoxicated because of consumption of alcohol [because] [t]he
symptoms of that condition have become such common knowledge . .
Id. at 214-15 (alternations in original) (quoting Bealor,
. .'"
supra,
187 N.J. at 587). Accordingly, a lay person, which
includes a police officer, may provide an opinion to prove that
a defendant was operating a motor vehicle while under the
influence of intoxicating liquor.
Even if the officers were testifying as experts, their
opinions were not net opinions. Each officer had direct contact
with and made independent observations of defendant, and their
opinions were supported by credible factual evidence. State v.
Townsend,
186 N.J. 473, 494 (2006); N.J.R.E. 703.
Finally, because the results of an HGN test are
inadmissible at trial, State v. Doriguzzi,
334 N.J. Super. 530,
539-40 (App. Div. 2000), we discern no abuse of discretion in
the exclusion of cross-examination on Gorman's failure to
conduct this test.
Affirmed.
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