STATE OF NEW JERSEY v. ARLENE KATAI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6351-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARLENE KATAI,

Defendant-Appellant.

_______________________________________

 

Submitted June 7, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-088.

Arlene Katai, appellant pro se.

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Anthony J. Scibetta, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Arlene Katai appeals from an order entered by the Law Division on June 19, 2009, finding her guilty of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50, and refusal to take a breath test to determine the content of alcohol in her blood, contrary to N.J.S.A. 39:4-50.4(a). For the reasons that follow, we affirm.

This appeal arises from the following facts. On October 4, 2008, at approximately 3:15 a.m., Patrolman Dennis Subrizi (Subrizi) of the Denville Township Police Department (DTPD), observed two vehicles traveling east on Route 46. Subrizi followed the vehicles. He observed defendant's car touch the center line of the roadway and then touch the shoulder line twice. Subrizi said that defendant's car swerved continuously within her lane of travel. Subrizi followed defendant's car for a quarter of a mile and stopped the car in Mountain Lakes.

Subrizi approached defendant's car on the passenger side. He detected the odor of alcohol emanating from the vehicle, which he described as the odor of an alcoholic beverage called Sambuca. Subrizi said that defendant's eyes appeared "watery[.]" He requested her credentials. Officer Kristian Sandman of the DTPD arrived on the scene as back up. Subrizi signaled to Sandman that he had detected alcohol. In response to a question from Subrizi, defendant that she had not consumed alcohol. She said that the odor he detected was from her chewing gum.

Sandman approached the open window on the passenger side of defendant's car. He also smelled alcohol emanating from the interior of the car. Subrizi asked defendant to step out of the vehicle. According to Subrizi, defendant appeared lethargic, slow and unsteady. Meanwhile, Sandman approached the second vehicle, which had pulled over and stopped in front of defendant's car. The occupant of that vehicle told Sandman that he and defendant had consumed "a few drinks" at a restaurant on the highway.

Subrizi attempted to administer field sobriety tests to defendant. Defendant told Subrizi that she had to use the restroom. Defendant said that she would not perform the tests. She asked Subrizi to return her driver's license and started to walk to her vehicle. Sandman arrested defendant for obstruction of the administration of the law. Subrizi stated that he detected the odor of alcohol in the police vehicle and on defendant's person during the ride to the police station.

At the station, Subrizi read defendant the standard statement for administration of breath tests. Subrizi said that he tried to ask defendant the questions on the drinking/driving questionnaire but she refused. Officer Jeffrey Tucker (Tucker) of the DTPD administered the Alcotest. He instructed defendant "on how to provide the sample, which was to take a deep breath and blow into the machine with one continuous breath and not stop until told to do so."

Tucker testified that on her first attempt, defendant failed to provide the minimum volume of air necessary for a reading. Tucker again advised defendant on the proper way to provide a breath sample. He said that he "even demonstrated" the process for her. Defendant again failed to provide the minimum volume necessary for a reading.

Tucker told defendant that he would give her one more chance to provide an adequate breath sample. He said that if she failed to do so, she would be charged with refusal to take the test. Tucker again instructed defendant on the manner in which to provide the sample. She provided a sufficient sample on her third attempt.

Tucker told defendant that she had to provide a second sample to complete the test. Defendant stated she knew her rights and refused. Tucker advised defendant that she would be charged with refusal. Defendant agreed to provide the second sample. Tucker again instructed her on the manner in which to provide the sample. She failed to do so. Tucker then concluded that defendant would not provide an adequate breath sample. She was charged with refusal.

The municipal court judge found defendant guilty of DWI, contrary to N.J.S.A. 39:4-50(a), and refusal to submit to a breath test, contrary to N.J.S.A. 39:4-50.4(a). The charges for obstruction of the administration of the law, reckless driving, and failure to maintain a lane were dismissed.

Defendant appealed to the Law Division. Judge John B. Dangler considered the matter on June 16, 2009, and on that date placed his decision on the record. The judge found defendant guilty of DWI and refusal to take the breath test. The judge sentenced defendant to a seven-month suspension of her driving privileges for the refusal and a concurrent three-month suspension of his driving privileges for DWI. The judge ordered defendant to attend an Intoxicated Driver Resource Center for twelve months and imposed certain fines, costs and assessments.

The judge entered an order dated June 19, 2009, memorializing its decision. This appeal followed. Defendant raises the following contentions for our consideration:

ISSUE I: THE STATE FAILED TO SUBMIT SUFFICIENT EVIDENCE TO CONVICT OF REFUSAL AND/OR FAILED TO PROVE COMPLIANCE WITH ADMINISTRATION OF THE ALCOTEST

A. THE STATE FAILED TO PROVE THAT THE "DEFENDANT WAS ARRESTED FOR DRIVING WHILE INTOXICATED" BEYOND A REASONABLE DOUBT

B. THE OFFICER ADMINISTERING THE ALCOTEST FAILED TO ADMINISTER THE SECOND WARNING REQUIRED WHEN A REFUSAL IS CONDITIONAL

C. THE STATE FAILED TO PROVIDE SUFFICIENT OPPORTUNITIES TO DEFENDANT KATAI TO SUBMIT THE REQUIRED NUMBER OF BREATH SAMPLES

D. THE STATE FAILED TO SUBMIT SUFFICIENT EVIDENCE TO CONCLUDE THAT KATAI WAS PROPERLY INSTRUCTED IN HOW TO SUBMIT A BREATH SAMPLE TO THE ALCOTEST

ISSUE II: THE STATE FAILED TO SUBMIT SUFFICIENT EVIDENCE TO PROVE THE DEFENDANT WAS IMPAIRED BEYOND A REASONABLE DOUBT

A. BASED ON THE TOTALITY OF THE EVIDENCE, THE STATE FAILED TO SUSTAIN IT[S] BURDEN OF PROOF BEYOND A REASONABLE DOUBT

B. THE LAW DIVISION RELIED ON INADMISSIBLE HEARSAY EVIDENCE IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT AS A FACTOR IN THE CONVICTION

C. THE SUPERIOR COURT COMMITTED PLAIN ERROR BY DEFERRING FACT FINDING CONCLUSIONS OF "SWAYING" TO OFFICER SUBRIZI RATHER THAN MAKING AN INDEPENDENT DETERMINATION OF THE FACTS

D. THE LAW DIVISION COMMITTED PLAIN ERROR WHEN IT CONSIDERED "WATERY EYES" AS EVIDENCE OF IMPAIRMENT

E. THE LAW DIVISION COMMITTED PLAIN ERROR WHEN IT CONCLUDED THAT KATAI'S RESPONSES WERE "SLOW" AS EVIDENCE OF IMPAIRMENT

F. THE LAW DIVISION COMMITTED PLAIN ERROR WHEN IT CONCLUDED THAT THE OFFICER SUBRIZI SMELLED SAMBUCA RATHER THAN THE GUM HE IN FACT SMELLED

ISSUE III:

BECAUSE THE VERDICT IS SO FACT SENSITIVE THIS CASE SHOULD HAVE BEEN RESOLVED BY A JURY TRIAL

We have carefully considered the record in light of these contentions. We reject defendant's arguments. We accordingly affirm the order of June 19, 2009, substantially for the reasons stated by Judge Dangler in the decision that he placed on the record on June 16, 2009. We add the following comments.

We reject defendant's contention that the State failed to present sufficient evidence to convict her of refusal to submit to a breath test, contrary to N.J.S.A. 30:4-50.4(a). To establish a violation of the statute, the State must establish that: 1) the arresting officer had probable cause to believe the accused operated a vehicle while under the influence of alcohol, 2) the accused was arrested for DWI, and 3) the accused refused to submit to the breath test. State v. Wright, 107 N.J. 488, 490 (1987).

Here, the trial court found that Patrolman Subrizi had reasonable cause to believe that defendant was operating her vehicle while under the influence of alcohol. The court based its finding on the totality of the circumstances, as explained by Subrizi in his testimony. Like the municipal court judge, Judge Dangler found that Subrizi's testimony was credible.

As we noted previously, Subrizi had testified that he observed defendant's vehicle at around 3:15 a.m. Defendant's car was weaving continuously within its lane of travel. Subrizi saw the car touch the center line as well as the shoulder line of the roadway. He also detected the odor of alcohol emanating from defendant and her car. He testified that, when defendant exited her car, she was lethargic, slow and unsteady. She additionally refused to perform the field sobriety tests when asked to do so.

The court's factual findings are binding on appeal because they are supported by sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Furthermore, our deference to the court's factual findings is warranted where, as here, "two lower courts have entered concurrent judgments on purely factual issues." Id. at 474.

Judge Dangler found that defendant's refusal to take the breath test came after her arrest. Although defendant was initially arrested for obstruction of the administration of the law, she was later charged with DWI. Defendant argues that, under these circumstances, she could not be found guilty of refusal to take the breath test. We disagree.

N.J.S.A. 39:4-50.4(a) provides in pertinent part that the municipal court shall revoke the driving privileges of any person who,

after being arrested for a violation of [N.J.S.A. 39:4-50 or [N.J.S.A. 39:4-50.14], shall refuse to submit to a test provided for in [N.J.S.A. 39:4-50.2] when requested to do so, for not less than seven months or more than one year unless the refusal was in connection with a second offense under this section[.]

The statute further provides that in order to convict an individual of this offense, the municipal court must determine:

by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; . . .

[Ibid.]

Here, defendant was initially arrested for obstructing the administration of the law, although the police had probable cause to arrest her for DWI as well. In our view, under the particular circumstances of this case, the fact that defendant was not arrested for both offenses before she was asked to take the breath test, does not preclude her conviction under N.J.S.A. 39:4-50.4(a).

Our decision in Strelecki v. Coan, 97 N.J. Super. 279 (App. Div. 1967), supports this conclusion. In that case, the defendant was stopped by the police. Id. at 282. The officer asked the defendant for his driver's license and auto registration certificate. Ibid. The defendant had difficulty getting those documents out of his wallet. Ibid.

The defendant also appeared to be intoxicated. Ibid. He fell against the police officer when he got out of his car. Ibid. In addition, there was "a strong odor of alcohol" on the defendant's breath and his speech was "slurred and rambling." Ibid. The officer told the defendant he was unfit to operate his automobile and had to go with the officer to the police station. Id. 283.

We held that the defendant was under "arrest" when he was asked to accompany the officer to the police station, "although the formal charge of drunken driving was not made until later." Ibid. We concluded that, because the defendant's refusal to submit to the breath test came after that "arrest," he was subject to conviction under the statute. Ibid.

Here, it is undisputed that defendant was arrested before she was asked to submit to the breath test. As we stated previously, defendant's arrest was for obstructing the administration of the law and the DWI charge came later. The fact that the police officers told defendant that she was arrested for obstructing administration of the law, rather than simply asking her to accompany them to the police station is inconsequential. She had been "arrested" before she was asked to submit the breath test and formally charged with DWI thereafter. We are satisfied that, in light of these facts, the trial court correctly found that defendant violated N.J.S.A. 39:4-50.4(a).

In addition, the trial court found that: defendant had been adequately warned of the consequences of refusing to submit to the breath test, defendant was afforded sufficient opportunities to provide the required samples, and she was properly instructed on the manner in which those samples should be provided. We are satisfied that there is sufficient credible evidence in the record for the court's findings on these issues.

We also reject defendant's contention that the State failed to present sufficient evidence to support her conviction of DWI. Defendant contends that the court should not have credited Subrizi's observations that defendant was "swaying" when she exited her car. Defendant maintains that the court erred by treating "watery" eyes as evidence of impairment. Defendant additionally contends that the court erred by concluding that her "slow" responses were evidence of impairment, and by accepting Subrizi's testimony that he detected the odor of Sambuca emanating from defendant's car and body.

The municipal court judge found Subrizi to be a credible witness. Judge Dangler deferred to that finding. Subrizi testified that he did not recall whether defendant was swaying when she exited the car; however, his other observations, which were credited by the lower courts, were sufficient to find defendant guilty of DWI. Nothing on the DVD of the roadside encounter warrants a different conclusion.

We see no "very obvious or exceptional showing of error" that would warrant our second-guessing of the lower courts' credibility findings on these factual issues. Locurto, supra, 157 N.J. at 474. We also do not believe that the court erred by considering defendant's "watery" eyes and "slow" responses as evidence of impairment.

We have considered defendant's other contentions and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-6351-08T4

August 5, 2010