STATE OF NEW JERSEY v. JOAN BULLOCK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOAN BULLOCK,

Defendant-Appellant.

July 9, 2014

Before Judges Maven and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-29-12.

Timothy S. Farrow argued the cause for appellant (Dash Farrow, LLP, attorneys; Mr. Farrow, on the brief).

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Joan Bullock appeals from her convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4(a). For the reasons that follow, we affirm.

We discern the following facts from the trial record. At approximately 3:00 p.m. on April 5, 2012, while driving on Clementon Road in Gibbsboro en route to a doctor's appointment, defendant struck the rear of the vehicle driven by Joonyoung Cho, who was stopped at a red light. Prior to the impact, Cho had observed defendant driving erratically behind her. After the collision, Cho told defendant she was okay and asked her to call the police.

Patrolman Justin Tomaszewski of the Gibbsboro Police Department was dispatched to the scene of the accident at approximately 3:37 p.m. Upon his arrival, Patrolman Tomaszewski observed minimal damage to both vehicles. He also saw defendant attempting to take photographs of the damage to the front of her vehicle. He asked defendant for her driving credentials, and she replied, "I have my license. My other registration and insurance are in the vehicle." According to Patrolman Tomaszewski,

as we were walking back to her vehicle, I noticed [defendant] to be staggering and almost leaning for balance . . . . She started to look for her documents. She had dropped her cell phone, which was I believe an iPhone or Smartphone of some sort, which it cracked. She didn t seem too . . . upset about it, just picked it up and started to look for her documents some more.

Patrolman Tomaszewski also detected an odor of alcohol emanating from defendant's breath and that her speech was slurred; he further observed her drop her cell phone a second time. He testified he then "asked her if she had anything to drink today. She replied, no. Then she asked me, 'Why would I ask[?]' I then asked her again if she had anything to drink, and she said she did have a glass of wine, if I call that drinking." In addition to drinking wine before her accident, defendant also admitted to taking numerous prescription drugs, including drugs for anxiety and depression.

Based on his observations and interaction with defendant, Patrolman Tomaszewski suspected she was under the influence of alcohol. He asked defendant to perform a series of field sobriety tests, and she refused. He asked her a second time and she again refused. At this point, Patrolman Tomaszewski placed defendant under arrest and transported to the police station.

On the way to the police station, defendant told Patrolman Tomaszewski that he "had to speak up" because she has tinnitus; however, up until that point, defendant had not indicated any problems with her hearing or understanding of the questions posed to her. At the police station, Patrolman Tomaszewski proceeded to read to defendant the Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e). Patrolman Tomaszewski explained that he delivered the Standard Statement in a loud voice in light of defendant's statement that she had tinnitus and a hard time hearing. He looked up at defendant, after completing each paragraph, to see if there was any indication defendant was not hearing or understanding what he was reading. Patrolman Tomaszewski then asked defendant to submit samples of her breath. Defendant responded by stating she wanted her lawyer. Patrolman Tomaszewski told defendant she needed to provide a yes or no response, and she replied, "no."

Patrolman John Waechtler, the officer who administered the Alcotest to defendant, testified that when he arrived at the station Patrolman Tomaszewski "was in the middle of speaking with [defendant]." Patrolman Waechtler prepared the Alcotest machine, explaining "[w]hen it comes up for [them] to blow into the machine they either have to start blowing or you press the letter r for refusal, and since she refused, press the letter r, which . . . was a refusal." Patrolman Waechtler confirmed he was present when defendant stated she refused to take the test.

Defendant presented her primary care physician, Dr. Carmen Guerra, to testify regarding her various medical conditions. Dr. Guerra stated defendant "has significant hearing loss," which he related to defendant's Lupus, which "has led to . . . tinnitus or ringing in the ear, and that's also a constant symptom that she has." Dr. Guerra had not seen defendant since October 2011, nearly six months before the municipal court trial. While Dr. Guerra stated defendant has difficulty understanding and following conversation, he admitted that speaking to her in a louder volume would help her understand.

Finally, defendant testified to her recollection of events. She stated "we were stopped at a light, and the traffic started moving . . . and the car in front of me stopped, and I tapped it on the back." Before the accident, defendant drank one glass of wine while making a gift basket. She admitted initially denying she had anything to drink because "[i]t felt like the right thing to say at the time[,]" but then acknowledged drinking one glass of wine after the officer told her he "smelled alcohol on my breath."

Defendant remembered being read her Miranda rights but claimed she did not remember Patrolman Tomaszewski advising her she would be charged with refusal if she did not take the test, "I don't remember him saying anything because the tinnitus was so bad, and all I kept saying is that my ears are ringing[.]" She explained she could not process anything.

In an oral opinion, the municipal court judge found defendant guilty of DWI, refusal to submit to a breathalyzer, and reckless driving N.J.S.A. 39:4-96. The municipal court made detailed credibility determinations, finding the testimony of Cho and the police officers credible and the testimony of defendant "not worthy of belief."

Defendant appealed her convictions for DWI, refusal and reckless driving to the Law Division. Following a trial de novo on the record, Judge Anthony M. Pugliese found defendant guilty on the DWI and refusal charges, and merged the reckless driving charge. The court sentenced defendant to a seven-month license revocation on the refusal and a concurrent three-month revocation on the DWI, along with associated fines, costs and surcharges. This appeal followed, with defendant arguing the State failed to prove beyond a reasonable doubt that she was properly informed of the consequences of refusing to take the breathalyzer test or that she drove while "under the influence."

After carefully reviewing the entire record and the applicable law, we conclude defendant's contentions find no support in the record and otherwise lack merit. We therefore affirm substantially for the reasons set forth in Judge Pugliese's comprehensive oral opinion. We add the following comments.

Our scope of review is limited. We "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Review in the Law Division is de novo on the record, Rule 3:23-8(a), but the Law Division judge must give due, although not necessarily controlling, regard to the opportunity of the municipal court judge to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). We are limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

New Jersey's implied consent law, codified at N.J.S.A. 39:4-50.2, reads in relevant part:

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act . . . and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of [N.J.S.A. 39-4:50] . . . .

[N.J.S.A. 39:4-50.2(a).]

Moreover, the statute requires that police officers read the Standard Statement to all defendants arrested for DWI before endeavoring to administer an Alcotest. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Widmaier, supra, 157 N.J. at 489. Ultimately, "'anything substantially short of an unconditional, unequivocal assent to an officer's request' 'would undermine law enforcement's ability to remove intoxicated drivers from the roadways' and impede their ability to conduct the test in a timely manner to ensure that the results are meaningful." State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007) (quoting Widmaier, supra, 157 N.J. at 497), aff'd as modified, 196 N.J. 537 (2008).

The statute further requires that the police officer "inform the person arrested of the consequences of refusing to submit to such test . . . ." N.J.S.A. 39:4-50.2(e). On this score, "[a] standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest." Ibid. Thus, notwithstanding that drivers are deemed to consent to a breath test by law, the Legislature wanted to offset the harsh consequences of refusal "by conveying knowledge of them to drivers at the scene[,]" State v. Marquez, 202 N.J. 485, 507 (2010), and to ensure that DWI defendants provide unequivocal consent to a breath test. State v. Duffy, 348 N.J. Super. 609, 611-12 (App. Div. 2002). Indeed, the "principal purpose" of having an officer advise a driver of the penalties for refusal "is to impel the driver to take the test so that the State will have the evidence necessary to prosecute a DWI charge." State v. Badessa, 185 N.J. 303, 313-14 (2005).

The Marquez Court explained the interplay between the implied consent and refusal statutes: "the refusal statute requires officers to request motor vehicle operators to submit to a breath test; [and] the implied consent statute tells officers how to make that request." Marquez, supra, 202 N.J. at 501. The Court identified four elements the State must establish to obtain a refusal conviction:

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

[Id. at 503 (citing N.J.S.A. 39:4-50.2(e); N.J.S.A. 39:4-50.4a(a)).]

The record clearly demonstrates that Patrolman Tomaszewski had an objectively reasonable basis to believe defendant had operated a motor vehicle under the influence of alcohol. See State v. Pavao, 239 N.J. Super. 206, 209-10 (App. Div. 1990). The officer testified regarding his observations of defendant, including her slurred speech, swaying and staggering, and odor of alcohol, as well as the accident which brought him to the scene. When defendant refused to submit to field sobriety tests, Patrolman Tomaszewski placed defendant under arrest for DWI and transported her to the station.

Patrolman Tomaszewski read the important information from the Standard Statement informing defendant of the mandatory nature of the breath test as well as the serious consequences, including license revocation of up to 20 years and a fine of up to $2000, that would result if she refused to submit a breath sample. The officer clearly informed defendant of the serious penalties she faced for refusing to submit to a breath test "in a manner that should have impelled a reasonable person to comply." State v. O'Driscoll, 215 N.J. 461, 479 (2013). Nevertheless, defendant refused to take the test.

Judge Pugliese did not accept defendant's claim that her hearing problems precluded her from being informed of the consequences of refusing to take the breath test. The judge noted, "at the scene there were no indications whatsoever, not even in her own testimony, that she was having a problem understanding. There was communication going back and forth." The judge credited testimony of Patrolman Tomaszewski that "he did everything that he could do by raising his voice and by looking for visual cues as to understanding" to make sure defendant was properly informed. The judge found defendant's credibility lacking. The record fully supports defendant's conviction of the refusal charge.

To establish a violation of N.J.S.A. 39:4-50(a) without a blood alcohol reading, the State must prove beyond a reasonable doubt that defendant was "under the influence of intoxicating liquor." To prove a defendant's intoxication, the State is entitled to rely on observational evidence such as the defendant's "demeanor and physical appearance[,]" as well as "proofs as to the cause of intoxication i.e., the smell of alcohol, an admission of the consumption of alcohol or a lay opinion of alcohol intoxication." State v. Bealor, 187 N.J. 574, 588-89 (2006).

Further, there is no requirement that defendant be "absolutely 'drunk' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 2003).

Sufficient credible evidence of record supported defendant's DWI conviction. In addition to drinking wine before her accident, defendant admitted to also taking numerous prescription drugs. Defendant operated her motor vehicle in a hazardous manner, rear-ending another vehicle, with the driver of that vehicle testifying she observed defendant's erratic driving before the accident. Defendant's speech was slurred and she walked in an unsteady manner, dropping her phone twice, while smelling of alcohol. Defendant then refused to submit to field sobriety tests and the Alcotest. Finally, based on his training and experience, the officer believed defendant to be under the influence.

We conclude the record contained substantial evidence to support Judge Pugliese's guilty findings on the DWI and refusal charges. We find no basis here to disturb the Law Division's judgment. State v. Locurto, 157 N.J. 463, 474 (1999).

Affirmed.