STATE OF NEW JERSEY v. THOMAS M. WILKINS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3211-07T43211-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS M. WILKINS,

Defendant-Appellant.

______________________________________

 

Submitted January 27, 2009 - Decided

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Municipal

Appeal No. 90-07.

Levow & Associates, attorneys for appellant

(Evan M. Levow, of counsel and on the brief;

Michael B. Mankowski, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomas Wilkins appeals from the order of the Law Division finding him guilty of driving while intoxicated, (DWI). N.J.S.A. 39:4-50. We affirm.

The matter came before the Law Division by way of defendant's petition for a de novo review of his conviction in the Folsom Borough Municipal Court. We gather the following facts from the evidence presented to the Law Division, in the form of the record developed before the Municipal Court.

On March 19, 2005 at approximately 8:20 p.m., New Jersey State Police Trooper Christopher Tropiano observed defendant's black Oldsmobile traveling westbound on Black Horse Pike, US 322, just west of 8th Street, a road he described as a "straight and level roadway."

After following the car for approximately one mile, Tropiano saw defendant's vehicle "weave in and out of its lane of travel. And at one point the vehicle's passenger wheels crossed over the white line and entered the shoulder of the highway."

Tropiano activated his overhead lights and signaled defendant to pull over. Upon stopping defendant, Tropiano detected an odor of alcohol emanating from defendant's mouth. Defendant slurred his speech moved slowly and deliberately as he searched for his driving credentials. When asked if he had had anything to drink, defendant admitted that he had consumed alcohol earlier in the day.

Tropiano asked defendant to come out of his car and perform a series of field sobriety tests. Defendant complied, but also told Tropiano that he suffered from a bad hip and experienced hip pain. Tropiano asked defendant to perform two tests.

The first test required defendant to stand on the foot of his choice, and raise the other leg six inches off the ground and count to thirty. In his first attempt, defendant raised his left leg approximately six inches off the ground, and after counting to two, placed his leg down. Thereafter, defendant again raised his left leg approximately six inches off the ground, and placed it down after counting to five.

The second test required defendant to walk heel to toe seven steps, turn and repeat. Tropiano physically demonstrated the test as he described it verbally. Defendant attempted two separate times to perform the test as directed; he failed to do so each time. Both times, defendant walked without touching heel to toe, and lost balance. In addition to these physical tests, Tropiano asked defendant to recite the alphabet, starting at the letter "G" and stopping at "Q." Defendant successfully completed this test.

Based on these observations, Tropiano concluded that he had probable cause to arrest defendant and charged him with DWI, and failure to maintain lane. N.J.S.A. 39:4-88b. Tropiano transported defendant in his marked police car to the Buena Vista State Police barracks, arriving at 8:37 p.m. While en route, Tropiano noticed that "a strong odor of an alcoholic beverage filled" the car. Once inside the Buena Vista barracks, Tropiano handcuffed defendant by one hand to a metal bench, where he sat through processing.

Tropiano testified that defendant was in his presence and under his direct observation from the time he was arrested at the scene, until he was handcuffed to the bench. Tropiano also searched defendant before handcuffing him to the bench. From the time of his arrest at the scene, until he was handcuffed to the bench, Tropiano did not see defendant put anything into his mouth. Defendant consented to taking the breathalyzer test after Tropiano read to him a version of the standard drinking and driving form.

It is undisputed that Tropiano read to defendant the New Jersey Motor Vehicle Commission standard statement for operators of motor vehicle, N.J.S.A. 39:4-50.2(e), as revised effective January 21, 2004, instead of the revised form effective April 26, 2004. According to defendant, of the eleven paragraphs in the form, the updated form only differed from the older form in the following three ways:

(1) The older form reflects a maximum period of suspension of driving privileges for failing to submit to the test as "no less than six months"; the updated form reads "no less than seven months";

(2) The older form lists the monetary penalties as "no less than $250 and no more than $1,000"; the updated form reads "no less than $300, and no more than $2,000";

(3) the older form provides that "any license suspension or revocation for a refusal conviction will be independent of any license suspension or revocation imposed for any related offense"; The updated form reads "may be independent of any license suspension . . . ." (Emphasis added).

State Police Sergeant James Brady entered the processing room where defendant was located at approximately 8:55 p.m. He administered the first breathalyzer test at 9:05 p.m. According to Brady, he performed all fifteen steps required, while completing the required form reflecting this procedure, checking off the appropriate box on the form each time he completed the step. He repeated the process for the second test, performed at 9:13 p.m. Defendant's blood alcohol content (BAC) on both tests was 0.14. Brady testified that defendant "absolutely [did] not" put anything in his mouth while in his presence.

Defendant's only witness was Dr. Gary Lage, an expert in toxicology. For the purpose of offering an opinion in this case, Lage testified that he accepted as true defendant's statement to him that, on the day of the incident, he consumed a total of three beers over a period of seven hours.

According to Lage, on the day of the incident, defendant was suffering from uncontrolled diabetes, resulting in a condition called ketoacidosis. When a person becomes ketoacidotic the body starts developing acetone as an energy source, as opposed to glucose, which a healthy body uses as energy. This chemical reaction caused the same type of effect as ethyl alcohol, and would react similarly on the breathalyzer test.

The machine could react as if it were detecting ethyl alcohol instead of the acetone it was actually detecting. According to Lage, this condition could account for a blood alcohol reading of as high as 0.06 percent. Lage thus opined, with a reasonable degree of scientific certainty, that defendant's medical condition rendered the breathalyzer results unreliable.

Against this backdrop, Judge Neustadter rejected Lage's testimony, and accepted the testimony of the State's witnesses. He credited Tropiano's testimony concerning defendant's condition at the time of detention by the road side. Judge Neustadter also found that defendant's BAC reading of .14 was dispositive, because the two tests were properly performed.

Defendant now appeals raising the following arguments.

POINT I

BECAUSE DEFENDANT WAS READ THE INCORRECT IMPLIED CONSENT FORM, DEFENDANT WAS NOT PROPERLY ADVISED OF HIS RIGHTS, AND THE BREATH RESULTS IN THIS CASE MUST BE SUPPRESSED.

POINT II

THE BREATHALYZER TESTING WAS CONDUCTED IMPROPERLY AND THE BREATH TESTING RESULTS SHOULD HAVE BEEN SUPPRESSED.

POINT III

THE CONVICTION OF THE DEFENDANT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND NOT ESTABLISHED BEYOND A REASONABLE DOUBT.

We reject these arguments and affirm. Despite the mistake made by Trooper Brady in reading to defendant an outdated consent form, there is no evidence that this error materially affected or in any way compromised defendant's ability to understand his obligation to submit to the breathalyzer test. The State also established that defendant was observed by both Tropiano and Brady, for a period of at least twenty minutes before the two breathalyzer tests were administered. State v. Chun, 194 N.J. 54, 79 (2008). Indeed, Tropiano testified that he observed defendant from the moment he stopped his car on the road, until he was brought to the room where the two tests were administered.

The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Defendant only included the updated form in his appendix. The differences listed here are taken from defendant's appellate brief, and are not contested by the State.

(continued)

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A-3211-07T4

June 3, 2009