STATE OF NEW JERSEY v. WILLIAM POWERS, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4985-08T34985-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM POWERS, JR.,

Defendant-Appellant.

________________________________________________________________

 

Argued June 15, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 43-2008.

Dana R. Bowling argued the cause for appellant (Robert A. Stutman, P.C., attorneys; Ms. Bowling, on the brief).

Rachael M. Minardi, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Minardi, of counsel and on the brief).

PER CURIAM

Defendant William Powers, Jr., appeals from a judgment of conviction of driving while intoxicated (DWI), N.J.S.A. 39:4-50. On the trial de novo, the Law Division judge affirmed the guilty finding of the municipal court. We affirm.

These are the relevant facts. Defendant was driving home from a friend's house at approximately 1:00 a.m. on December 22, 2007, when he passed Gloucester City Police Officer Joseph Eller's parked police cruiser. Officer Eller was on DWI patrol that evening. While defendant was not speeding, swerving, driving carelessly or recklessly and did not fail to use a turn signal, Officer Eller used his Mobile Data Terminal (MDT) system to conduct a random inquiry on defendant's vehicle. He determined that defendant had a suspended registration and was operating and unregistered vehicle. Officer Eller proceeded to stop defendant's vehicle.

At the vehicle stop, Officer Eller approached the vehicle and observed that defendant "had bloodshot, watery eyes, odor of an alcoholic beverage on his breath," his movement was slow and he appeared "mildly" disheveled. However, his speech was not slurred, and although he fumbled as he reached for his credentials, defendant did not drop them or have trouble locating them. Officer Eller informed defendant that he was under suspicion of driving while intoxicated and asked defendant to step out of the vehicle. As defendant did so, his physical coordination was slow and uncoordinated. Officer Eller then asked defendant to perform a series of field sobriety tests on a sidewalk, which was flat and sufficiently well-lit.

Defendant first performed the straight line walk test. Officer Eller physically demonstrated to defendant how this test was to be performed; it required defendant to take "nine steps forward, pivot, turn, [take] nine steps back in a heel-to-toe fashion counting [his] steps aloud." Defendant began the test before he was instructed to begin, failed to count his steps out loud and had trouble maintaining a heel-to-toe position. Officer Eller did not comment to defendant about his performance on the test.

Officer Eller next conducted the one-legged stand test, which required defendant to "pick a leg of [his] choice, raise [his] opposite leg six inches of the ground, pointing towards the sky, count aloud 30 seconds in a one 1,000 fashion while maintaining his balance." Again, Officer Eller demonstrated this test to defendant. Defendant counted out loud, did not let his foot touch the ground and did not raise his arms for balance during the test, but defendant "had great difficulty maintaining balance. He flailed his arms out to the sides, which [the police] instruct against."

Based on his observations, training and experience, Officer Eller concluded that defendant was under the influence of alcohol.

At the station, Officer Eller requested that defendant take an Alcotest, but defendant refused. Defendant claimed that he was willing to take the test but requested that another officer be present, because defendant feared that the test results would be "doctored." Defendant was initially calm and polite, but became mildly antagonistic when he learned the identity of Officer Eller's brother. Apparently there was a preexisting family dispute between Officer Eller's brother and defendant's sister. According to Officer Eller, however, he had never previously met defendant or defendant's sister, and he did not know what type of car defendant drove. Defendant claimed that he knew who Officer Eller was during the entire stop, even though they had never previously met.

At the police station, Officer Eller administered a drinking and driving questionnaire to defendant. Defendant did not answer the questions about alcohol consumption, but Officer Eller reported defendant had consumed seven or eight beers. Defendant was then released to his mother.

At trial, defendant disputed the nature of the various tests that he performed. He claims that he performed the one- legged stand test first. He also stated that Officer Eller yelled at him for beginning this test before instructed. He explained that Officer Eller never instructed him to wait for instructions to begin the test, so he began once Officer Eller finished his demonstration. Defendant further stated that he performed the walk and turn test second. He claimed that he performed the heel-toe as instructed, he counted his steps out loud, and that he did not start before he was instructed to begin.

Following the municipal court judge's finding of guilt, defendant was sentenced as a second offender. The judge imposed a two year loss of license, two year loss of registration privileges, two days county jailtime, a $506.00 fine, together with statutory fines and penalties as well as thirty-days community service. Defendant filed a pro se appeal of his convictions for the DWI and Refusal. The Law Division upheld the DWI conviction but found defendant not guilty of the refusal offense. The judge imposed a $500 fine, $33 costs, thirty days community service, forty-eight consecutive hours imprisonment, two years forfeiture of driver's license, installation of ignition interlock device and two year revocation of registration certificate and registration plates for the DWI.

This appeal followed.

On appeal, defendant asserts that the conviction was against the weight of the evidence. In considering this argument, we first address our standard of review.

Our review on appeal focuses on whether there was sufficient credible evidence to support the trial court's findings. Real v. Radir Wheels, Inc., 198 N.J. 511, 527 n.11 (2009) (citing State v. Chun, 194 N.J. 54, 88, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008)); State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964)). We "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Such deference is awarded even more strongly in cases such as this one, where the municipal court and the Law Division both entered judgments based on the same factual conclusions. Ibid. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. This court should reverse the lower court's findings only if "'they are so wholly unsupportable as to result in a denial of justice.'" New Jersey Div. of Youth and Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003) (quoting Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974)).

A DWI offense "is proved 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). Because defendant never took a blood alcohol test, the issue is whether Officer Eller's observations of defendant's physical condition provided sufficient credible evidence that defendant was intoxicated.

A conviction will be sustained where "the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." Johnson, supra, 42 N.J. at 165 (quoting State v. Emery, 27 N.J. 348, 355 (1958)). "[T]he statute does not require as a prerequisite to conviction that the accused be absolutely 'drunk,' in the sense of being sodden with alcohol." Emery, supra, 27 N.J at 355. The purpose of the statute is "to prevent the operation of motor vehicles by those whose faculties are so impaired as to present a danger to the safety of others as well as themselves." State v. DiCarlo, 67 N.J. 321, 325 (1975). The court may find a driver to be under the influence even if he was capable of driving safely. Johnson, supra, 42 N.J. at 165.

While there is no set formula for determining what observations can prove intoxication, the court looks to the surrounding circumstances and observations to determine if the defendant was "under the influence." In State v. McGeary, 129 N.J. Super. 219, 221-22 (App. Div. 1974), the defendant was convicted of DWI based on police officer's observations that defendant's breath smelled of alcohol, he had trouble locating his driver's license, he was driving in an erratic manner and he was physically uncoordinated. We also affirmed a conviction for DWI when an officer observed that defendant drove without his headlights on, had the odor of alcohol on his breath, swayed as he walked, slurred his speech and failed to perform the leg raise test. State v. Cleverley, 348 N.J. Super. 455, 457 (App. Div. 2002). While the individual factors the officer observes may alone be insufficient to convict under N.J.S.A. 39:4-50, the factors should be considered all together to determine if there was sufficient evidence of intoxication. State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007). In Kent, we found that "slurred speech, loud and abrasive behavior, disheveled appearance, red and bloodshot eyes and strong odor of alcoholic beverage on [his] breath [are] sufficient to sustain a conviction for DWI." Ibid. See also State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993) (holding that evidence of defendant's slurred speech, loud and abrasive manner, disheveled appearance, odor of alcohol on his breath and red and bloodshot eyes was sufficient to convict for DWI); State v. Nemesh, 228 N.J. Super. 597, 603 (App. Div. 1988) (holding that a DWI conviction was supported by sufficient, credible evidence when police officer observed defendant had odor of alcohol on his breath, had tired, bloodshot eyes, slurred slightly when speaking, fumbled slightly with his hands, swayed slightly and lost balance when performing straight line walk test), certif. denied, 114 N.J. 473 (1989); State v. Sisti, 209 N.J. Super 148, 150 (App. Div. 1986) (holding that evidence of DWI violation was sufficient when patrolman testified "as to defendant's erratic driving, inability to produce his driver's license, alcoholic beverage odor on his breath, slurred speech, slow hand movements, and failure to pass a field test for balance").

Here, the evidence supported defendant's conviction. Officer Eller testified defendant had bloodshot and watery eyes, smelled of alcohol, appeared disheveled, moved slowly exiting his vehicle and had trouble retrieving his credentials. Defendant also did not walk heel to toe or count his steps in the straight line test, he began this test before instructed, and he flailed his arms in the one legged stand test. Defendant also acted mildly antagonistic at the police station. These factors are consistent with conduct to support a DWI conviction. The municipal court found Officer Eller's testimony, "quite clear, quite concise and quite credible." The Law Division adopted these findings. We will defer to the judge's findings regarding credibility, especially when credibility is determined by a witness's demeanor. Locurto, supra, 157 N.J. at 470. Officer Eller's observations of defendant's physical conduct were sufficient, credible evidence that defendant was intoxicated.

Defendant cites numerous alleged inconsistencies in Officer Eller's testimony in his brief; none are availing. For example, defendant argues that Officer Eller did not testify which specific step defendant was not able to maintain heel-toe fashion, and that he did not know what specific type of alcohol odor was on defendant's breath. None of these inconsistencies are sufficient to conclude that defendant's conviction was "so wholly unsupportable as to result in a denial of justice." S.V., supra, 362 N.J. Super. at 84.

Defendant attempts to distinguish Kent and other cases by noting that defendant in the present case did not demonstrate all of the indicia of intoxication demonstrated by the defendants in these cases. However, as noted, we look to the officer's observations of defendant's conduct as a whole to determine if defendant was under the influence. Kent, supra, 391 N.J. Super. at 384. While the defendant in Kent had a "strong odor of alcohol on [his] breath," whereas defendant in the present case only had an "odor," this difference is not controlling. Ibid.

 
Affirmed.

Officer Eller also performed the horizontal gaze nystagmus (HGN) eye test. Citing State v. Doriguzzi, 334 N.J. Super. 530, 533 (App. Div. 2000), the Law Division judge held that the HGN test was inadmissible as proof of intoxication because it is not generally accepted by the scientific community.

Defendant testified that Officer Eller told defendant that he was arresting him because "[your] eyes gave [you] away." The Law Division judge did not consider the comment because it related to the inadmissible HGN test.

In addition to the DWI offense, defendant was also charged with and convicted of driving with an unregistered vehicle, N.J.S.A. 39:3-4; driving while registration suspended, N.J.S.A. 39:3-40; and refusal to submit to breath test, N.J.S.A. 39:4-50.4a. The court imposed a $56.00 fine and $33.00 of costs for Driving Unregistered Motor Vehicle. The judge fined defendant $506 for driving while registration suspended, N.J.S.A. 39:3-40, but suspended $500 of the fine. As to the Refusal charge, the judge imposed a $506.00 fine, $33.00 costs, $50.00 VCCB, $75.00 Safe Streets Penalty, $100.00 DWI surcharge, two year loss of license and twenty four hours Intoxicated Driver Resource Center Program (IDRC). The judge made the two year losses of license concurrent.

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A-4985-08T3

August 27, 2010