STATE OF NEW JERSEY v. ANTOINETTE D. MELE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6557-06T46557-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTOINETTE D. MELE,

Defendant-Appellant.

__________________________

 

Argued September 24, 2008 - Decided

Before Judges Kestin and Newman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Docket No. 06-056.

Michael J. Muller argued the cause for appellant.

Annemarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the brief).

PER CURIAM

Defendant Antoinette Mele was found guilty of driving under the influence of alcohol (DWI) in violation of N.J.S.A. 39:4-50 in the Teaneck Municipal Court and again on appeal in the Superior Court. Finding defendant to be a second DWI offender, the Superior Court judge imposed the same sentence as the municipal court: suspensed defendant's driving privileges for two years, fined her $500, and imposed court costs of $30, a $50 VCCB penalty, a $75 Safe Neighborhood penalty, $8 in miscellaneous fund charges and a $200 surcharge. A stay of the sentence was denied by this court. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. The seventy-nine year old defendant met with friends at a restaurant in Cresskill on November 6, 2004 at approximately 1:30 p.m. Over the course of a three hour lunch, she consumed two Bloody Marys and one brandy. According to defendant, she consumed her last drink when the meal ended some time after 4:30 p.m.

Defendant left the restaurant and proceeded toward Green Market in Teaneck to purchase some vegetables for dinner. At approximately 5:21 p.m., while traveling on Rensselaer Road, defendant decided to pull over and rest. In her attempt to pull over to the side of the road, defendant drove into the opposing lane and collided with Jennifer Lecky, who was driving her SUV in the opposite direction.

According to Ms. Lecky, she had to pull to the far side of her travel lane, going onto the curb to avoid a head-on collision. Ms. Lecky was unable to open her driver's side door because it was wedged against defendant's vehicle. She rolled down her window to ask if defendant was hurt. Ms. Lecky immediately smelled alcohol on defendant's breath and informed her that they had been involved in an accident. Defendant denied that an accident had occurred. Defendant then proceeded to close her eyes and appeared to fall asleep. Ms. Lecky called the police to report the accident.

Officer Arnold Peters, an eight-year veteran of the force, responded to the accident scene. Ms. Lecky informed Officer Peters that she detected alcohol on defendant's breath. Officer Peters observed that defendant was sitting in the driver's seat of her car, that the vehicle was running, and that defendant appeared to be sleeping. Officer Peters asked defendant to step out of the car. When she attempted to do so, she needed to be assisted and the officer detected the smell of alcohol on her breath.

After assisting defendant out of her vehicle, Officer Peters administered three field sobriety tests, only one of which was given significant weight by the court. The officer first administered the "one-legged stand" test. Defendant was unable to keep her foot off the ground for more than ten seconds and staggered from side to side. Officer Peters also asked defendant to perform the "walk and turn" test, which she was unable to do without stumbling several times. According to both the municipal and trial court, these tests were not accurate gauges of her sobriety because of defendant's advanced age.

Officer Peters also administered the "alphabet" test. He testified that defendant was unable to recite the alphabet beyond the letter F. Defendant testified that she began to recite the alphabet but was instructed to stop at the letter K when it was apparent that she could do so to completion. Following these observations, Officer Peters placed defendant under arrest and transported her to police headquarters. He did not fill out a Drinking Driving Report or a Police Officers' Field Observations Report as required under Teaneck police procedures.

Upon arriving at police headquarters, defendant asked to use the bathroom. When her request was denied, she became extremely agitated and removed her pants and attempted to urinate on the floor. After she complied with the officers' requests to put her pants back on, the officers allowed her to use the restroom.

Officer Anthony Brezzi, a fourteen-year police officer and certified breathalyzer operator, gave defendant her Miranda warnings and then asked if she had been drinking. Defendant replied that she had. Defendant responded "yes" to the written form which advised her of her right to secure independent blood testing. Defendant claims that Officer Brezzi never read her the standard statement that would have notified her of her right to obtain an independent blood test. Officer Brezzi administered two breathalyzer tests, each resulting in a blood alcohol concentration (BAC) reading of .13.

Defendant introduced testimony from Dr. Stanley Broskey, an expert in the operation of breathalyzers and the administration of field sobriety tests. Dr. Broskey testified that individuals who suffer from gastroesophageal reflux disease (GERD) often obtain inaccurately high breath test results. This is because the stomach forces food particles into the esophagus and mouth, which the breathalyzer inaccurately reads as vapors coming from the person's lungs. Dr. Broskey testified that a woman of defendant's weight, having consumed what defendant claimed to consume, should have had a BAC reading of approximately .03. He also testified that the National Highway and Traffic Safety Administration has determined that the "walk and turn" and the "one leg lift" tests should not be administered to individuals over the age of sixty-five.

Dr. Scott Lippe, an expert in gastroenterology, testified that a person suffers from GERD when the contents of the person's stomach come up into their esophagus, resulting in stomach discomfort, burping and foul breath. A GERD sufferer who consumes alcohol may have that alcohol forced back up into their throat and mouth, causing a strong alcohol odor that does not represent what that individual actually consumed. Defendant maintains that her GERD was the cause of the odor detected on her breath. However, she did not inform Officer Peters that she suffered from this condition when he questioned her.

Defendant testified that she was experiencing a GERD attack on the day in question. Despite her physician's advice not to drink alcoholic beverages, she did so anyway. She described her drowsiness as a symptom of the GERD attack.

On review de novo on the record, see R. 3:28-8(a), the Law Division judge, in an oral decision which was later reduced to a written decision, found Officer Peters to be a credible witness and accepted his testimony that defendant had difficulty stepping out of her car and was unable to recite the alphabet beyond the letter F. The trial court also found that defendant did cause an accident with Ms. Lecky's vehicle. The court accepted that defendant generally suffered from GERD but determined that she did not inform any of the officers at the scene of the accident, nor at the station house that she was experiencing a GERD episode. The judge found that defendant was not experiencing a GERD episode on the evening of the accident.

The trial judge determined that Officer Brezzi, who performed the breathalyzer test, was properly certified to perform such tests and the breathalyzer equipment was in proper working order. The court accepted that two tests were administered, both resulting in a .13 BAC reading. Defendant did not object to the admission of the test results. The trial judge also found that Officer Brezzi read the standard statement to defendant informing her of her right to an independent blood test and defendant signed a "yes" at the end of the statement.

On appeal, defendant raises the following issues for our consideration:

POINT I: THE STATE FAILED TO PRODUCE EVIDENCE OF PHYSICAL OBSERVATIONS SUFFICIENT TO FIND DEFENDANT GUILTY OF DRIVING WHILE INTOXICATED.

POINT II: THE STATE FAILED TO PRESENT ANY EVIDENCE TO NEGATE DEFENDANT'S CONTENTION THAT SHE EXPERIENCED A GERD INCIDENT SUFFICIENT TO SKEW THE BREATHALYZER READINGS TO SUCH AN EXTENT AS TO MAKE THEM UNRELIABLE AS EVIDENCE OF DEFENDANT'S GUILT.

POINT III: CHRONIC AND/OR EPISODIC GERD IS AN AVAILABLE DWI DEFENSE IN THE STATE OF NEW JERSEY.

POINT IV: THE BREATHALYZER RESULTS MUST BE EXCLUDED DUE TO

THE ARRESTING OFFICER'S FAILURE TO READ THE "STANDARD STATEMENT" TO THE DEFENDANT, WHICH WOULD HAVE INFORMED HER OF HER RIGHT TO OBTAIN AN INDEPENDENT BLOOD TEST.

We address the issues in the order raised, combining the discussion of Points II and III.

In Point I, defendant argues that the State failed to produce adequate evidence of her intoxication to find her in violation of N.J.S.A. 39:4-50 beyond a reasonable doubt. Defendant asserts that Officer Peters, the first officer to respond to Ms. Lecky's 9-1-1 call, did not actually observe defendant operate her vehicle, nor did he observe that defendant had dilated pupils, slurred speech, or a lack of awareness of her surroundings. Defendant contends that Officer Peters only conducted three field sobriety tests, none of which, alone or in their totality, were sufficient to sustain defendant's conviction because they were inappropriate measures of defendant's intoxication due to her advanced age. Furthermore, defendant maintains that, because Officer Peters failed to complete a Drinking Driving Report and the Police Officers' Field Observations Report after arresting her for DWI, the Law Division should have disregarded his testimony and accepted defendant's version of the events in question. Without Officer Peters' testimony, defendant argues, the State's evidence is insufficient to establish guilt beyond a reasonable doubt under the subjective prong of the statute.

Upon review, this court must determine if there is sufficient credible evidence present in the record to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 (1964). Pursuant to N.J.S.A. 39:4-50(a), a person may be found guilty of driving while under the influence when that person "operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood. . . ." A person violates the statute per se if he or she submits to a breathalyzer or blood test that shows his or her blood alcohol level to be over the legal limit.

A violation may also be established under the subjective prong of the statute, which requires the State to prove that the individual was "under the influence." "Under the influence" is defined as:

a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs

. . . . [A] condition which so affects the judgment or control of a motor vehicle operator as to make it improper for him to drive on the highway . . . . [or] if the drug produced a narcotic effect "so altering his or her normal physical coordination and mental faculties as to render such a person a danger to himself as well as to other persons on the highway."

[State v. Bealor, 377 N.J. Super. 321, 327-28 (App. Div. 2005), rev'd on other grounds, 187 N.J. 574 (2006) (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)).]

In the case of a DWI violation, it has long been held that the "beyond a reasonable doubt standard" can be met based exclusively upon the observations of the arresting officer that defendant was operating a motor vehicle while intoxicated or under the influence. Johnson, supra, 42 N.J. at 165-66. This last element, "while intoxicated," can be based upon the officer's testimony of his/her observations of the defendant, admissions by the defendant, field sobriety tests, or the training and/or experience of the officer in dealing with intoxicated persons. State v. Guerrido, 60 N.J. Super. 505, 510 (App. Div. 1960).

The court found, and we are satisfied, that based on the totality of Officer Peters' and Ms. Lecky's observations, substantial credible evidence exists to find that defendant was intoxicated. Regarding defendant's argument that Officer Peters did not actually observe defendant operate her automobile, it has been established that a DWI conviction can be sustained on both direct and circumstantial evidence, State v. Emery, 27 N.J. 348, 355 (1958), as well as statements by a defendant and observations made by police officers of defendant's behavior and actions. State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988), certif. denied, 114 N.J. 473 (1989). Other testimony in the case, such as Ms. Lecky's, must also be taken into account. Officer Peters observed defendant asleep behind the wheel of her running car. Ms. Lecky, the driver of the vehicle struck by defendant's automobile, testified that she saw defendant drive her vehicle onto the wrong side of the road, resulting in a collision with Ms. Lecky's SUV. Both Ms. Lecky and Officer Peters smelled alcohol on defendant's breath. Officer Peters had to assist defendant in exiting her vehicle because she had difficulty keeping her balance. He testified she failed the "alphabet" test. Based upon this testimony, which was found to be credible, the Law Division judge had substantial evidence to find that defendant was in fact intoxicated while she operated her vehicle.

Defendant also contends that because Officer Peters failed to complete the Drinking Driving Report and the Police Officers' Field Observations Report, his testimony should be discounted, requiring the court to accept defendant's version of events. In support of this argument, defendant relies upon State v. Greeley, 178 N.J. 38 (2003). There, the issue was whether a police department's unwritten policy of only releasing someone charged with DWI to a friend or relative impermissibly limited the suspect's right to obtain an independent breath or blood test. Id. at 40. In Greeley, the defendant was arrested for being under the influence of alcohol and was transported to the police station. Ibid. The proceedings at the police station were videotaped, but the tape was lost. Id. at 41. The defendant moved to suppress the breathalyzer results on the grounds of destruction of evidence. Ibid. The trial court denied the motion; however, in order to prevent prejudice to the defendant from the loss of evidence, it accepted his version of the events. Ibid. This court also accepted the defendant's version of events and affirmed the trial court's denial of suppression on the grounds of destruction of evidence. Ibid.

Defendant argues, reasoning by analogy, that because Officer Peters failed to comply with police policy when he neglected to fill out the appropriate forms, his testimony should also be suppressed.

Defendant's reliance on Greeley is misplaced. In Greeley, the failure on the part of the police to comply with standard policy was not the reason for suppression. Instead, suppression was the result of a negligently destroyed videotape. There was no destruction of evidence in this case. Officer Peters' testimony was considered. His failure to prepare the department reports could be considered to assess his credibility. His testimony was found credible by the trier of fact notwithstanding the deviation from customary procedures.

In Points II and III, defendant contends that the State did not rebut defendant's contention that her GERD condition skewed the breathalyzer results. According to defendant, her GERD condition caused the breathalyzer to register her BAC as inaccurately high. Defendant argues that GERD should be a recognized defense to DWI in this State, and the trial court erred when it failed to give weight to defendant's GERD episode at the time of her arrest.

Dr. Broskey and Dr. Lippe both testified to GERD's effects on breathalyzer readings. Defendant also refers to the Special Master's Report following extensive hearings on the reliability and accuracy of the alcotest machine as the preferred method of determining blood alcohol content discussed in State v. Chun, 194 N.J. 54 (2007). One of the purposes of the report was to determine the accuracy and reliability of breathalyzers. The report discloses discussion by an expert in physiology and breath testing, stating that "[...] the presence of mouth alcohol can result in false higher breath alcohol readings. Such elevations can be caused by recent drinking, regurgitation or gastroesophageal reflux disease (GERD), or by the presence of dentures or other materials that absorb alcohol." Special Master's Report, No. 58879, p. 254 (Feb. 13, 2007). In other words, the breathalyzer cannot differentiate between gases coming from the stomach and vapors coming from the lungs. The result is to render the breathalyzer reading inaccurate.

While the State has not contested defendant's evidence on her suffering from the disease and the effect GERD might have on a breathalyzer reading, we need not decide if GERD should be accepted as an affirmative defense in a DWI contest. We need not do so because the trial court found that defendant was not experiencing a GERD episode when the accident occurred when the breathalyzer was administered.

The trial court determined that the odor of alcohol that Officer Peters and Ms. Lecky detected was the result of defendant consuming alcohol, and was not caused by her GERD condition. While the trial judge acknowledged that defendant did indeed suffer from GERD, he found that she was not experiencing a GERD episode at the time of her arrest. The trial court reached this conclusion based on the testimony of Officer Peters, who stated that defendant did not appear to be ill, and she did not complain about experiencing any of the discomforts typically associated with the condition. We are persuaded that the record supports the trial court's determination that defendant was not suffering a GERD episode.

At oral argument on appeal, defendant's counsel argued that the record showed that defendant suffered from GERD which was, according to the medical records and testimony, a chronic condition. However, when asked whether that meant that a person who suffered from GERD was therefore immune or insulated from a breathalyzer reading, counsel responded, "Absolutely not." We appreciate counsel's candor. The response reinforces the trial court's ultimate conclusion based on the determination that defendant did not prove that she was suffering from a GERD episode at the time of the accident and subsequently.

To the extent defendant also argues that the subjective prong of the DWI was not, additionally, established beyond a reasonable doubt, we disagree. A breathalyzer test result at the proscribed level is necessary only for a per se violation. See Johnson, supra, 42 N.J. at 165-66. Defendant appeared to be "under the influence" of alcohol when she was arrested and was found to be intoxicated under the subjective prong of the statute. The term "under the influence" as used in N.J.S.A. 39:4-50(a) means a "substantial deterioration or diminution of the mental faculties or physical capabilities of a person, whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit-producing drugs. . . ." State v. Tamburro, 68 N.J. 414, 421 (1975) (citing Johnson, supra, 42 N.J. at 146. Defendant drove her vehicle on the wrong side of the road, caused an accident, appeared to have difficulty staying awake, failed all the field sobriety tests administered to her, smelled of alcohol and behaved erratically when she was brought to police headquarters. She also admitted to consuming three alcoholic beverages prior to driving. Even without the breathalyzer results, defendant was properly determined to be intoxicated under the subjective prong of N.J.S.A. 39:4-50(a).

Police officers are obliged to read to all defendants arrested for driving while intoxicated a standard statement prepared by the Director of the Division of Motor Vehicles, before endeavoring to administer a breathalyzer test. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 487 (1999). This standard statement informs a defendant of the repercussions of refusing to submit to the breathalyzer test, as well as the defendant's right to acquire an independent blood test.

In Point IV, defendant argues that Officer Brezzi, who administered both of her breathalyzer tests, never read her the standard statement, thus rendering her breathalyzer results inadmissible. Defendant asserts that because the standard statement informs a defendant of his or her right to have an independent blood test in addition to the breath test, defendant was denied the opportunity to exercise that right. She claims that, had she been given the opportunity, she would have sought an independent blood test in order prove that her BAC reading was much lower than what the breathalyzer results showed.

The Law Division judge found that Officer Brezzi did read defendant the standard statement. The State introduced a standard statement into evidence in which the word "yes" was handwritten at the end. The word "yes" was handwritten on the document which recorded that Officer Brezzi read it to her.

Even though the standard statement was not initialed by defendant, the trial court, as well as the municipal court judge, was satisfied that the statement was read to defendant. The testimony of defendant that she never saw the form before was not found credible. We do not disturb credibility assessments because we have had no opportunity to observe the witnesses testify. State v. Locurto, 157 N.J. 463, 470 (1998). The record contains substantial evidence to support the trial court's determination. Johnson, supra, 42 N.J. at 162.

 
Affirmed.

The transcript of the Teaneck Municipal Court proceedings was provided to us by the Prosecutor at our request. The transcript was not provided by appellant as part of the record on appeal. See R. 3:23-3.

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

(continued)

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A-6557-06T4

October 30, 2008