STATE OF NEW JERSEY v. WILLIAM YUENGLING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0437-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM YUENGLING,

Defendant-Appellant.

________________________________________________________________

March 4, 2013

 

Argued December 5, 2012 - Decided

 

Before Judges Grall and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-10-11.

 

Miles Feinstein argued the cause for appellant.

 

Elizabeth R. Rebein, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Rebein, of counsel and on the brief).

PER CURIAM

Defendant William Yuengling appeals from the August 25, 2011 amended order of conviction after a trial de novo on the record in the Law Division. He was convicted for the third time of driving while intoxicated (DWI), N.J.S.A. 39:4-50. He was also convicted of refusal to provide a breath sample (refusal), N.J.S.A. 39:4-50.2; failure to exhibit insurance, N.J.S.A. 39:3-29(c); and operation of an unregistered vehicle, N.J.S.A. 39:3-4. Defendant was sentenced to 180 days in jail and a ten-year license suspension, along with other penalties.1 His sentence for refusal was a seven-month license suspension to run concurrent to the suspension under his DWI conviction, along with other penalties. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The police testified to the following facts. At approximately 3:00 a.m. on December 23, 2009, Montvale Police Officer Alisha Foley was dispatched to assist a motorist in the roadway. Upon arriving at the scene, Officer Foley discovered defendant's pick-up truck in the passing lane on Grand Avenue, a four-lane roadway. Although it was very cold outside, defendant was standing by the curb without a coat. Officer Foley asked if anybody was with defendant, and he responded that he was alone and needed gas. Officer Foley's partner, Officer Earl Kash Cruise, arrived at the scene shortly thereafter.

The officers observed a gas can in the back of defendant's truck. Officer Cruise drove defendant to a nearby gas station to fill up the can. When he put defendant in the back seat of the police car, he noticed "the odor of [an] alcoholic beverage" emanating from defendant. Officer Foley remained with defendant's vehicle. While she waited, she obtained information from the Department of Motor Vehicles2 indicating that defendant's car registration had expired.

Upon his return, defendant attempted to put the gas into his truck. He had difficulty and "more gas [was] getting outside the vehicle and on the vehicle and onto the roadway" than into the tank. Officer Cruise informed Officer Foley that he had noticed the smell of alcohol. Officer Foley then informed defendant that the car registration was expired, to which defendant responded "impossible." Defendant and Officer Foley attempted to locate the registration information in the truck, during which time Officer Foley also smelled alcohol. She also observed that defendant was "having highs and lows . . . in behavior. He would be very calm, and then he would become very agitated." Officer Foley found an expired registration inside the truck.

Defendant told Officer Foley that he grew up in the area and was returning to Westwood from the Boston area for the holidays. He told Officer Foley that he had traveled alone.

At this point Officer Foley conducted field sobriety tests. Defendant was unable to perform the tests, leading her to conclude that he was "over the . . . legal limit for alcohol consumption." She placed defendant in handcuffs and advised him he was under arrest.

Defendant was advised of his Miranda3 rights at the police station. Detective Joseph San Filippo was called in by Officer Foley to administer the Alcotest. He noticed the "strong smell of an alcoholic beverage" in the cell area where defendant was kept pending his arrival. Detective San Filippo read defendant the refusal form4 at which point defendant agreed to provide a breath sample. When asked to step up to the machine, according to the detective, defendant said that "he needed 'to take a piss.'" He was informed that he could use the bathroom after the test was completed, but he again said he needed to go to the bathroom. Upon being told again that he had to complete the test first, defendant "kind of lowered himself to the ground" and "started to, sort of shake around and make noises, gagging noises in his throat."

The officers called an ambulance "just to be on the safe side." They did not believe that defendant was having an authentic seizure, however. Officer Foley noticed that defendant's "eyes opened on several occasions, cracked enough to see [the officers], and then closed and [he] would continue" to shake. Karl Gjertsen, a paramedic who responded to the scene, also noted that defendant did not have symptoms commonly associated with seizures. He reported seeing defendant smirk at him in the ambulance. Upon arriving at Valley Hospital, defendant continued to act belligerently towards the officers and threatened Officer Foley. He stated that maybe he should have another seizure and then started shaking and laughing. Defendant was not put on a cardiac monitor as he did not exhibit any genuine symptoms of a seizure.

Janice Ortiz, a patient care technician with the hospital and a certified phlebotomist, drew blood from defendant using a kit in a box provided by Officer Foley.5 She cleaned the area with Betadine, a non-alcoholic disinfectant, from the box. She gave the collected blood to Officer Foley, who placed the two vials in the box. Analysis of defendant's blood sample indicated that defendant's blood alcohol content (BAC) was 0.141 percent, a per se DWI violation. N.J.S.A. 39:4-50(a).

Defendant testified and presented several witnesses to prove that he had not been the operator of the truck that night. Brian Kalb, defendant's friend, testified that he had driven defendant's four-door silver pick-up truck until it ran out of gas. Kalb, Chris Pagan, Vanessa Reyes and defendant had been at defendant's house in Hackensack. The men then left to go to a bar in Pearl River, New York, where the bars stayed open later than in New Jersey. When the truck ran out of gas in Montvale on their way to Pearl River, Kalb was concerned that by waiting for help he would be charged with DWI. He therefore decided to walk with Pagan for approximately an hour to Pagan's uncle's house to spend the night. Joseph Lawrence, Pagan's uncle, confirmed that his nephew and a friend had come to his house in the middle of that night. Kalb conceded that he had never informed the police prior to trial that he, not defendant, had been driving that night, even though he knew that defendant had been charged with DWI.

Defendant testified that although it had been his intention, due to his intoxicated state, to wait for a tow truck, Officer Cruise directed him to get gas and fill up the truck. Defendant also testified that when he attempted to give a breath sample, he had an anxiety attack and could not remember what occurred after that. On cross-examination, defendant acknowledged that he had a Massachusetts driver's license and traveled back and forth to Cape Cod, where he was involved in construction. Defendant said he lived in Hackensack at the time of his arrest. Defendant was convicted of all violations in the municipal court and, after a trial de novo, in the Law Division.

Defendant raises the following issues on appeal:

POINT I: THE STATE DID NOT PROVE OPERATION OF THE VEHICLE, AND THE LAW DIVISION COULD NOT PROPERLY FIND OPERATION BASED UPON MR. YUENGLING'S OBTAINING GAS BECAUSE TO DO SO WOULD IGNORE THE ACTIONS OF THE POLICE OFFICERS WHICH CONSTITUTED DUE PROCESS ENTRAPMENT (PARTIALLY RAISED BELOW).

 

POINT II: THE LAW DIVISION CONVICTED MR. YUENGLING BASED UPON THE IMPROPER CONSIDERATION OF PRE-ARREST AND POST-ARREST SILENCE.

 

POINT III: THE REFUSAL CHARGE SHOULD HAVE BEEN DISMISSED SINCE BLOOD WAS SUCCESSFULLY DRAWN FROM MR. YUENGLING, AND A BLOOD ALCOHOL READING WAS DETERMINED.

 

POINT IV: THE LAW DIVISION ERRED IN ADOPTING THE MUNICIPAL COURT'S RELIANCE ON THE ACCURACY OF THE BLOOD TEST BY ACCEPTING THE RELIABILITY OF THE TESTING METHOD AS WELL AS THE CONTENTS OF THE "BOX" USED IN THE DRAWING OF MR. YUENGLING'S BLOOD WITHOUT ANY INDICIA OF RELIABILITY.

 

POINT V: THE CONVICTION FOR OPERATING AN UNREGISTERED MOTOR VEHICLE SHOULD BE REVERSED BECAUSE THE STATE DID NOT PROVE THE OFFENSE BEYOND A REASONABLE DOUBT.

Our scope of review of the Law Division is limited, and centers on "whether the Law Division's de novo findings 'could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Palma, 426 N.J. Super. 510, 514 (App. Div. 2012) (quoting State v. Johnson, 42 N.J.146, 162 (1964)). Review of municipal court decisions in the Law Division is de novo on the record. R.3:23-8(a).

The judge in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).

We owe great deference to the consistent conclusions of two other courts. State v. Stas, 212 N.J.37, 49 n.2 (2012).

Deference to factual findings and credibility determinations is "more compelling" where "two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, [we] 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.(citing State v. Locurto, 157 N.J.463, 474 (1999); State v. Oliver, 320 N.J.Super.405, 421 (App. Div.), certif. denied, 161 N.J.332 (1999)).]

I

Defendant argues in Point I of his brief that the State failed to prove beyond a reasonable doubt that he operated the truck, a required element of DWI. "In order to show operation[,] a three prong test must be met, the elements are: physical control over a vehicle, an intent to operate and an ability to do so[.]" State v. Derby, 256 N.J. Super. 702, 708-09 (Law Div. 1992). Defendant contends that the Law Division erred by relying on defendant's obtaining gasoline to show an intent to operate the truck.

A police officer may arrest an intoxicated driver for a DWI offense if the driver "operates" the vehicle in the officer's presence. The individual need not drive the vehicle in front of the officer. Rather, the term "presence" requires "'that the officer know of the event by the use of his senses.' State v. Dickens, 130 N.J. Super. 73, 76 (App. Div. 1974) . . . ( [an] officer may arrest [an] intoxicated motorist at rest in a vehicle by the highway when evidence demonstrates that his operation got the vehicle there)." State v. Mulcahy, 107 N.J. 467, 476 (1987).

Defendant argues that the police direction that he accompany them to obtain gas constitutes due process entrapment. Although defendant argued before the Law Division that the State failed to prove operation, he did not argue the due process entrapment claim. Because defendant is raising this issue for the first time on appeal, we will not reverse on this ground unless there was error "clearly capable of producing an unjust result[.]" R. 2:10-2.

The Law Division appropriately deferred to the credibility findings made by the municipal court. State v. Avena, 281 N.J. Super.327, 334 (App. Div. 1995). See alsoLocurto, supra, 157 N.J.at 472. The municipal judge found Kalb and defendant's version of events to be incredible. He determined that the officers were credible in their testimony that defendant wanted to put gas in his truck thereby supporting an inference that defendant intended to operate the vehicle. The municipal judge specifically noted that defendant's demeanor while testifying convinced him that defendant was lying. There is nothing in the record to indicate that this determination is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Johnson, supra, 42 N.J. at 162 (citations omitted).

Defendant's assertion of due process entrapment is without merit. Officer Foley testified she did not suspect defendant was under the influence of alcohol until after defendant and Officer Cruise returned from the gas station. Officer Cruise indicated that it was not until defendant was in the back of the police cruiser that he noticed the smell of alcohol. Defendant told the officers that he had run out of gas and they offered to take him to obtain gas before the officers had any suspicion that defendant was intoxicated. Thus, it cannot fairly be said that the police entrapped defendant. They were not "primarily responsible for creating and planning the crime, . . . controll[ing] and direct[ing] the commission of the crime," or using unreasonable methods to involve defendant in the crime. State v. Grubb, 319 N.J. Super. 407, 415 (App. Div.) (quoting State v. Johnson, 127 N.J. 458, 474 (1992)), certif. denied, 161 N.J. 333 (1999). The Law Division was presented with sufficient evidence to demonstrate defendant's intention to operate the truck, regardless of whether or not he had driven the truck prior to it running out of gas.

II

Defendant also argues that his convictions must be reversed because the Law Division improperly considered his pre- and post-arrest silence as proof of his guilt. He cites the re-direct examination of Detective San Filippo and cross-examination of defendant as instances in which the prosecutor impermissibly elicited information that defendant did not voluntarily inform the police that he had not been driving the truck and did not intend to drive the truck, either before or after he was arrested. As no objection was raised at trial, we review for plain error. State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.

In support of his position, defendant points this court to the recent Supreme Court decision of Stas. In Stas, after leaving a bar, the defendant and Joseph Putz were involved in a motor vehicle accident with defendant's sister's minivan. 212 N.J. at 40. When police arrived at the scene of the accident, Putz told them that he had been driving the minivan. Id. at 40-41. The defendant stood nearby in silence. Id. at 41. The police administered sobriety tests to Putz alone, who failed the tests. Ibid. After both men testified at trial that the defendant was the driver, Putz was convicted of DWI and the defendant was convicted of allowing Putz to drive while intoxicated pursuant to N.J.S.A. 39:4-50(a). Ibid. The Law Division, in its trial de novo, relied in part on the defendant's silence while Putz admitted driving, construing the silence as "'an admission on [the] [defendant]'s part.'" Ibid. (second alteration in original). The Supreme Court stated:

We conclude that defendant was entitled to the protection of the constitutional, statutory and common law privilege against self-incrimination in the quasi-criminal proceedings before the municipal court and the Law Division. We hold that the Law Division's use of defendant's silence as substantive evidence of his guilt and for the purpose of assessing his credibility violated defendant's federal constitutional privilege against self-incrimination, and his state statutory and common law privilege against self-incrimination. Given the prominent role that defendant's silence played in his conviction, we disagree with the Appellate Division panel that the Law Division's reliance on defendant's silence constituted harmless error, and find that this error was "clearly capable of producing an unjust result," constituting plain error. R.2:10-2.

 

[Id. at 42.]

However, the Supreme Court did not reject the distinction between the permissible use of pre-arrest silence and the improper use of silence at or near the time of arrest, stating:

However, our case law teaches that pre-arrest silence that is not "at or near" the time of arrest, when there is no government compulsion and the objective circumstances demonstrate that a reasonable person in a defendant's position would have acted differently, can be used to impeach that defendant's credibility with an appropriate limiting instruction. It cannot, however, be used as substantive evidence of a defendant's guilt.

 

[Id. at 58 (citations omitted).]

The only testimony in the State's direct case involving defendant's post-arrest silence was the prosecutor's question to Detective San Filippo on his re-direct examination. The prosecutor asked if defendant ever told Detective San Filippo that he was not operating the vehicle. The detective answered "[n]o" and defense counsel objected as the question went beyond the scope of the direct examination.6 No other questions regarding what defendant did not tell police were asked in the State's case in chief. On cross-examination of defendant, however, and without objection, the prosecutor asked many questions about why defendant did not tell the police that he was not driving the car both before and after he was arrested.

The State limited its argument to the Law Division to a discussion of defendant's pre-arrest silence. The prosecutor stated:

[I]n terms of intent to operate, the defendant neglected to relay any information that his friend had been the driver. You would think that if that was exculpatory evidence, he would want to say that to the police officers, and he really didn't do that.

 

He didn't mention that he was looking for a towing service. Instead he willingly went with Officer [Cruise] to get gas, which was a kind gesture of Officer Cruise given the fact it was cold that night.

 

The municipal judge concluded, based on his observations of defendant on the stand as well as defendant's testimony, that defendant's story was "preposterous" and "the single most unbelievable testimony [he'd] ever heard." The judge noted in passing that defendant did not proffer his defense to the police after his arrest. If the municipal judge considered the post-arrest silence of defendant as a factor in his credibility determination, such consideration was improper. A factfinder may, however, infer from a defendant's pre-arrest silence that the proffered, exculpatory testimony is incredible if a reasonable person in the defendant's position would have offered it prior to arrest. State v. Brown, 118 N.J. 595, 613-14 (1990).

The opinion of the Law Division indicates only defendant's pre-arrest silence was considered in the Law Division's decision. In making findings regarding defendant's intent to operate the vehicle, the Law Division stated:

[W]hen officers arrived at the scene the defendant omitted to state that a friend was allegedly driving the car or that he was going to call a tow service to remove the vehicle from the road. Rather, the defendant noted that the car needed gas, purchased gas, and then began to refill the tank. This [c]ourt finds that such actions evidence a clear intent to drive the car home rather than call a towing service.

 

The Law Division never referred to defendant's continued failure to assert his defense after his arrest. The remainder of the court's findings on operation were based on the actions of defendant's friends that night and afterwards.

The Law Division agreed with the municipal court's determination that Kalb's testimony "made no sense." Even if one were to completely disregard the fact that defendant never tried to explain to police what happened, it is difficult to believe that Kalb abandoned his intoxicated friend in the freezing cold without a coat or means of transportation, failed to call a tow truck, let defendant be charged with DWI, and waited until the eleventh hour to admit he was the one who drove while intoxicated. Defendant's claim that he intended to wait for a tow truck is also unsupported by the other evidence. The complete implausibility of defendant's proffered version of events supports his convictions such that any error made by the municipal judge in his credibility assessment by considering defendant's post-arrest silence is not "clearly capable of producing an unjust result[.]" R. 2:10-2.

III

Defendant further argues that his refusal conviction should have been dismissed because his BAC was ultimately obtained by the police from a blood sample. In order to prove a refusal violation, the State must show "only that (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test." State v. Wright, 107 N.J. 488, 490 (1987).

Defendant does not argue that the State failed to prove any of the elements, only that a refusal charge was "unnecessary" given the blood test. Subsequent to his refusal to supply a breath sample, blood testing was used to prove defendant's per se guilt of DWI. The police had no obligation to offer another opportunity to take the test or another scientific test to defendant. See State v. Corrado, 184 N.J. Super. 561, 565, 569 (App. Div. 1982) (upholding a refusal conviction where the officer did not administer the test as requested by the defendant an hour after the defendant's initial refusal). The police, however, did choose to proceed with obtaining a blood sample, which led to defendant's per se DWI violation. The police would not have had to request the blood sample had defendant cooperated with the breath test.

"The refusal statute was enacted by the Legislature to combat the high rate of refusal[s] [which] made enforcement of the drunk driving laws difficult." State v. Breslin, 392 N.J. Super. 584, 591 (App. Div.) (alterations in original) (internal quotation marks and citations omitted), certif. denied, 192 N.J. 477 (2007). It was part of legislative "changes [that] intended to curb the senseless havoc and destruction caused by intoxicated drivers[.]" State v. Schmidt, 206 N.J. 71, 81, 85 (2011) (citations and internal quotation marks omitted) (holding that a supplemental statement need not be read to defendants who fail to provide a satisfactory breath sample). Accordingly, by driving on a public road, a person "consent[s] to the taking of samples of his breath for purposes of making chemical tests to determine the content of alcohol in his blood[.]" Id. at 279 (second alteration in original) (quoting N.J.S.A. 39:4-50.2(a)). The fact that in this particular case the police were able to obtain defendant's BAC through other means does not absolve him of his failure to cooperate with providing a breath sample.

 

IV

Defendant next argues that the Law Division erred in concluding that the blood test was reliable because there was no testimony regarding the substance used to disinfect his skin prior to the insertion of the needle.

Defendant's argument misstates the testimony of the phlebotomist, Ms. Ortiz. Defendant states "Ms. Ortiz assumed the 'box' contained [B]etadine . . . [however], she was not qualified to render such an assumption. She also was not in the position to determine that the substance was in fact [B]etadine, and she merely used what the police officers provided to her." Ortiz testified that the swab was labeled "Betadine" and she was not merely assuming it to be Betadine because the police officers handed it to her.

This situation is not analogous to State v. Berezansky, 386 N.J. Super. 84 (App. Div. 2006), appeal dismissed, 196 N.J. 82 (2008), as argued by defendant. In Berezansky, the State submitted a laboratory certificate containing the results of the blood test performed on the defendant without supporting testimony by a lab technician. Id. at 94-95. This court determined that the State's failure to provide the testimony of the chemist who performed the analysis violated the Confrontation Clause. Ibid. In the present case, the State presented multiple witnesses regarding the drawing, transportation, and analysis of defendant's blood sample, supporting the Law Division's conclusion that the blood test was reliable.

V

Defendant's final argument is that the State did not meet its burden of proof regarding the operation of an unregistered vehicle because it did not present documentary evidence. "A driver of a motor vehicle is required to exhibit his driver's license, insurance ID card and the registration certificate when requested to do so by a police officer, while in the performance of his duties." State v. Perlstein, 206 N.J. Super. 246, 253 (App. Div. 1985) (citing N.J.S.A. 39:3-29). N.J.S.A. 39:3-29 makes it the responsibility of the driver to carry valid registration, and permits dismissal of any charges if the driver brings registration that was valid on the date of the alleged infraction to the municipal court.

It is a violation of N.J.S.A. 39:3-4 for a person, whether the owner or non-owner of a vehicle, to drive a motor vehicle on the highways of this State when the operator knows or should know that the motor vehicle is not registered. State v. David, 287 N.J. Super. 434, 440-41 (App. Div. 1996). Officer Foley testified that she found an expired registration in the truck, evidence supporting the conviction. It was defendant's affirmative obligation to provide proof of valid registration, N.J.S.A. 39:3-29. The State thus met its burden of proof with regard to this violation.

Affirmed.

1 In his brief, defendant claimed that the jail sentence was stayed beyond the February 20, 2012 deadline established in the judge's order. In subsequent correspondence with this court, defense counsel has been unable to locate an order memorializing this extension, although he recalls obtaining the additional stay with consent of the State.

2 Now known as the Motor Vehicle Commission. N.J.S.A. 39:2A-4(b).

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

4 State v. Marquez, 202 N.J. 485, 501 (2010) ("In essence, the refusal statute requires officers to request motor vehicle operators to submit to a breath test; the implied consent statute tells officers how to make that request. . . . The implied consent statute, in turn, directs officers to read a standard statement to the person under arrest for the specific purpose of informing 'the person arrested of the consequences of refusing to submit to such test . . . .'" (citing N.J.S.A. 39:4-50.4a)).

5 Ortiz later signed a consent form, which was not provided to this court. Although in New Jersey consent to take blood is not required in drunk driving cases, State v. Woomer, 196 N.J. Super. 583, 586 (App. Div. 1984), where a defendant does not peacefully submit to the drawing of blood, the intrusion may not be upheld. State v. Ravotto, 169 N.J. 227, 246 (2001); see also N.J.S.A. 39:4-50.2(e). This issue is pending before the United States Supreme Court. Missouri v. McNeely, __ U.S. __, __ S. Ct. __, __ L. Ed.2d __ (oral arguments heard on January 9, 2013) (determining constitutionality of warrantless, nonconsensual DWI blood draws).

6 The objection was overruled.