STATE OF NEW JERSEY v. ROBERT MCGEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4274-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT MCGEE,

Defendant-Appellant.

________________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Criminal, Atlantic County, Indictment No. 103-04.

Mark E. Roddy, attorney for appellant.

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (John Henry Flammer, III, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his de novo conviction of driving while intoxicated, N.J.S.A. 39:4-50, for which a seven-month driver's license suspension was imposed, along with a two-day detention at the Intoxicated Driver's Resource Center and the necessary fine, penalty, surcharge and assessment. In convicting defendant on the Municipal Court record, the trial judge made the following relevant findings of facts and conclusions of law:

I would make the findings of fact to indicate that on October 5th of 2004, Officer Gary Coslop . . . of the Linwood Police came into contact at the Linwood Police Department with the defendant around 10:00 a.m. in the morning. It appears from the testimony that that Coslop came into contact with the gentlemen somewhat inadvertently. They were in the police station at the same time and around the same place and it turns out that Mr. McGee was looking for some assistance from the police in order to go home or back to his residence to remove some of his personal clothing and property in response to a domestic dispute that had occurred. He didn't want to go back to the house to get his goods on his own. He wanted to be accompanied by a police officer to avoid any further problem. That is certainly a credit to him and good judgment - good judgment on his part. He was waiting around apparently to make arrangements for an officer to go with him. He sat around the police department for quite a few hours in that regard and came into contact with the officer. That contact resulted in the officer who was apparently off duty at the time noticing a smell of alcohol, and in discussions with the defendant came to some preliminary conclusion that he was under the influence. He found out that Mr. McGee drove himself to the police station, so the question of operation is proven by his own admission which is recognized in the case law. No one from the police has to actually witness him operating the vehicle. He acknowledged that he was operating the vehicle and, in fact, drove it to the police station, so that fact was proven beyond a reasonable doubt.

The other and the more main issue is whether or not the State proved beyond a reasonable doubt that when he drove the vehicle to the police station, he was in a condition where his ability to drive that car was deleteriously affected by his prior ingestion of alcohol?

He was asked to return to a different part of the police station by the officer to perform some psychophysical tests. He was unable to perform them in accordance with the instructions and completely satisfactorily to the police officer.

As I indicated earlier in discussions with counsel, he was not a fall down drunk, he was not in many ways we all see people who have imbibed and who are at various stages of intoxication. In some cases you can't tell that a person is even intoxicated at all, and others they can't even stand up.

Now, the law does not say that in order to be found guilty of driving under the influence of alcohol, that a person has to be so drunk that it is beyond dispute; the person is so drunk he can't even stand up and he looks the way most drunks look when they get into that condition. You don't have to be that bad to be found guilty of drunk driving.

The law says that if you drink alcohol, and ingest drugs and it affects your ability to think, to see, to react in a deleterious way, that means if you're less able, it doesn't make you a better driver when you are drinking, it affects you in an adverse way. If you have one drink and it doesn't affect you, and there is a separation between the time that you drink and the time you drive, then you're not guilty under the law of driving under the influence. But if your ability is compromised by the ingestion of alcohol, then you can be found guilty . . . .

. . . .

I think that the defendant's ability to operate the vehicle when he drove it and admitted that he drove it was deleteriously affected by his ingestion of alcohol. I respect his integrity in terms of telling it the way it was and not trying to produce facts that were not true facts. But as an arbiter the law it requires me to interpret it fairly and equally between all persons. I find that he was under the influence of alcohol when he drove that vehicle . . . .

On appeal, defendant contends:

THE PROOFS PRESENTED BY THE STATE DID NOT ESTABLISH THE DEFENDANT'S GUILT OF DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL BEYOND A REASONABLE DOUBT.

 
We have considered this contention in light of the record, applicable law and the trial judge's oral decision. We are convinced it is of insufficient merit to warrant further opinion. R. 2:11-3(e)(2); State v. Locurto, 157 N.J. 463, 474-75 (1999).

Affirmed.

(continued)

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A-4274-04T1

December 22, 2005