STATE OF NEW JERSEY v. DELIA PAPE-WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0840-08T40840-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

DELIA PAPE-WHITE,

Defendant-Appellant/

Cross-Respondent.

______________________________

 

Argued January 5, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-101.

Greggory M. Marootian argued the cause for appellant/cross-respondent.

Paula Jordao, Assistant Prosecutor, argued the cause for respondent/cross-appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Delia Pape-White was charged with driving while intoxicated, N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96. The municipal court admitted evidence of a breath test, administered to defendant using an Alcotest 7110 device, and found her guilty of a per se DWI offense. The municipal court judge then made "a finding of not guilty" of reckless driving and merged that charge with the DWI conviction. Defendant's driver's license was suspended for seven months. She was required to spend twelve hours at the Intoxicated Driver Resource Center (IDRC) and assessed applicable fines and costs. Defendant appealed her DWI conviction. In the Law Division's de novo review, defendant was found guilty of both DWI, based solely on the officer's observations, not the Alcotest results, and reckless driving. On the DWI conviction, the court sentenced defendant as a first-time offender, suspending her driving privileges for three months, ordering a mandatory screening at the Intoxicated Drivers Resource Center, and imposing statutory fines and penalties. No additional penalties were imposed on the reckless driving conviction.

Defendant presents these arguments for review on appeal:

POINT I

THIS COURT SHOULD DISMISS THE STATE'S CROSS-APPEAL BECAUSE WHAT THE STATE SEEKS (A REVIEW OF WHAT WAS IN EFFECT AN ACQUITTAL) OFFENDS CONSTITUTIONAL PRINCIPLES OF DOUBLE JEOPARDY.

POINT II

THE STATE DID NOT PROVE THAT PAPE-WHITE WAS UNDER THE INFLUENCE; THE RESULT BELOW WAS NOT REASONABLY REACHED, PARTICULARLY BECAUSE THE SUPERIOR COURT, IN DISREGARDING THE ALCOTEST EVIDENCE AS UNRELIABLE, NONETHELESS FOUND THAT THE DEFENDANT'S BLOOD ALCOHOL CONCENTRATION WAS 0.08%.

POINT III

THERE WAS NO EVIDENCE BELOW TO ESTABLISH THE TIME THAT PAPE-WHITE DROVE THE CAR. ACCORDINGLY, BECAUSE OF THE ABSENCE OF THIS OFFENSE-ELEMENT, THE RESULT BELOW WAS NOT REASONABLY REACHED.

POINT IV

THE MUNICIPAL COURT FOUND PAPE-WHITE NOT GUILTY OF RECKLESS DRIVING. ACCORDINGLY, THEIR DESIGNATION OF THAT CHARGE AS HAVING BEEN "MERGED" INTO THE DWI CONVICTION IS ERRONEOUS.

On cross-appeal, the State argues the results of the Alcotest were wrongfully excluded. The State maintains the Law Division sentence, a three month license suspension, must be vacated, and the municipal court sentence, a seven month suspension, reinstated.

Following our review of the arguments in light of the record and the applicable law, we affirm the Law Division's conviction for DWI and reverse the conviction for reckless driving. Based on these determinations, we dismiss the State's cross-appeal.

The essential facts are taken from the municipal court record and are undisputed. While patrolling Route 10 on August 23, 2007 at approximately 3 a.m., Randolph Township Police Patrolman Frank Mygas spotted a disabled minivan parked "on an angle" on the shoulder. He pulled his patrol car behind the vehicle and noticed it had a large hole in its tire and was unoccupied. Mygas then saw defendant walking towards the vehicle. He testified defendant was "swaying" as she walked, and "appeared to have a little bit of difficulty . . . . It appeared to me that she had been under the influence of either intoxicating liquor or drugs[.]"

Defendant admitted the vehicle was hers. She explained she had been driving, became lost, then struck something in the roadway, causing a flat tire. When asked if she had anything to drink, defendant admitted she had a glass of wine. During his conversation with defendant, Mygas detected "an odor of alcoholic beverage on [defendant's] breath," saw her eyes were bloodshot, and noticed she was "slurring her words." Further, defendant moved her hands slowly while retrieving her paperwork.

Mygas administered field sobriety tests. He first requested defendant to recite the alphabet, which she completed without error. Next, when counting backwards from twenty-seven to nine, she performed adequately but passed number nine and finally stopped when she reached number three. Sergeant Gary Moore arrived and assumed responsibility for administering additional field sobriety tests.

Moore also noted defendant smelled of alcohol. He acknowledged she had no difficulty following his instructions for performing physical balance tests but maintained her completion of these tests was unsatisfactory. Moore told defendant to stand straight with her head slightly back and her eyes closed, which she carried out while swaying. Next, defendant was told to stand on one leg and count to thirty, then repeat this task while standing on the other leg. In doing so, she swayed and put her foot down a number of times. Finally, defendant was to perform a heel-toe walk and turn, during which she swayed and did not always touch her heel to her toe.

Mygas arrested defendant for DWI and brought her to police headquarters, where she agreed to submit to a breath test. Defendant submitted two breath samples, for which the Alcotest recorded blood alcohol concentration (BAC) readings of .11 percent. Defendant was issued summonses for DWI and reckless driving.

At trial, defense expert Herbert Leckie discussed the lack of reliability of various psycho-physical tests to discern intoxication. Referring to studies on the subject by the National Highway Traffic Safety Administration ("NHTSA"), Leckie explained the one-leg stand was the most accurate test when administered according to standardized procedures, yet was only sixty-five per cent reliable in evincing intoxication. Leckie opined that, in defendant's case, the field sobriety tests were not administered pursuant to the standardized instructions issued by the NHTSA. He noted the officers had not asked defendant if she had any medical conditions affecting her ability to physically perform, failed to tell her to look at her feet during the walk and turn test and did not observe whether there was a greater than half-inch gap between her toe and heel. Additionally, Leckie stated "swaying" during the walk and turn test "is not a scoring factor" and counting backwards has only a fifty percent reliability rate. In assessing defendant's overall performance, Leckie stated:

She passed the alphabet test . . . . The count backwards test[] . . . has a 50 percent degree of reliability . . . [s]he counted appropriately except she failed to stop at the appropriate place as directed. The walk and turn test, again, based upon the testimony, she passed the test, for lack of a better description, because there weren't any scoring factors that were testified to. I would have to concede that the one leg stand test she failed, if you want to characterize it a failure.

The municipal court accepted the results of the Alcotest and found defendant guilty of a per se DWI violation. The court found defendant "not guilty" of reckless driving because the State had failed to prove the requisite driving beyond a reasonable doubt. The municipal court judge stated, "the [c]ourt is not going to enter an independent guilty finding," then proceeded to merge that charge with the DWI charge, finding they were "one and the same event." After sentence was imposed, defendant appealed.

Following its de novo review of the municipal court record, the Law Division determined the Alcotest results were invalid because the State did not present evidence that the officers had their cell phones and other electronic devices turned off or removed from the testing area and that they had changed the machine's mouthpiece prior to commencing defendant's breath test. However, the Law Division found defendant's expert witness was not persuasive in discounting the entire value of the field sobriety tests. After crediting the testimony of Officer Mygas and Sergeant Moore, the Law Division judge concluded the evidence was sufficient to convict defendant of DWI. The court stated defendant was "guilty of DWI in violation of N.J.S.A. 39:4-50 based on the officer's observations and not guilty under the per se standard." Defendant appealed.

The State cross-appealed from that portion of the Law Division's opinion excluding the per se Alcotest breath readings from evidence. Defendant's motion to dismiss the cross-appeal was denied.

In reviewing this matter, we first note the function of the Law Division on an appeal from a municipal court is not to search the record for error by the municipal court or to decide if there was sufficient credible evidence to support the municipal court conviction. Rather, it is to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge to evaluate witness credibility. R. 3:23-8(a); State v. Johnson, 42 N.J. 146, 157 (1964); State v. Cerefice, 335 N.J. Super. 374, 382-83 (App. Div. 2000). In other words, the judge in a trial de novo must make his or her own independent findings of fact, State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983)), and must determine that the State has proven each element beyond a reasonable doubt. State v. Howard, 383 N.J. Super. 538, 544 (App. Div.), certif. denied, 187 N.J. 80 (2006).

In contrast, our function as a reviewing court is governed by the "substantial evidence" rule; namely, to determine whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. If we determine that the findings and conclusions of the Law Division meet that criterion, our "task is complete" and we "should not disturb the result" even if we "might have reached a different conclusion." Ibid.; see also Avena, supra, 281 N.J. Super. at 333.

Just as the Law Division does when conducting a de novo review, we "defer to [the] trial court['s] credibility findings that are often influenced by matters[,] such as observations of the character and demeanor of witnesses and common human experience[,] . . . not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We reverse if we find the trial "judge went so wide of the mark, a mistake must have been made." Id. at 471 (quoting Johnson, supra, 42 N.J. at 162).

Moreover,

the rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error.

[Id. at 474.]

With these principles in mind, we proceed to consider the merits of defendant's challenge.

On appeal, defendant asserts the Law Division correctly disallowed use of the Alcotest readings but wrongly concluded the officers' observations proved beyond a reasonable doubt that she was intoxicated. We disagree.

Without reference to the Alcotest results, the Law Division determined the fact of intoxication by relying upon the police officers' testimony relating defendant's physical state and impaired coordination. N.J.S.A. 39:4-50(a); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002). Among Mygas's and Moore's observations credited by the Law Division were defendant's admission to drinking alcohol, bloodshot eyes, swaying while walking, slurred speech, slow movements when retrieving her documents, and flawed performance on some field sobriety tests. The Law Division also took into account the odor of alcohol on her breath when she spoke and the position and condition of defendant's vehicle.

These are facts properly considered when determining intoxication. See, e.g., State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007); State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). Cumulatively, this evidence was sufficient to support the Law Division's finding of intoxication.

In reaching our conclusion, we need not consider the court's statement that defendant's BAC was "no lower than or no higher than point zero eight." This reference was merely incidental to the court's finding, as a per se violation was not sustained. Accordingly, the error was harmless. R. 2:10-2.

We also are not persuaded by defendant's challenge to the field sobriety test results, based upon the officers' failure to adhere to published protocols. Defendant relates no physical impairments she suffered at the time of performance, and we cannot connect her disclosure of nausea while being processed at the police station to her functioning in the field, although it may have been related to her ingestion of alcohol and antibiotics.

Defendant next challenges the court's finding that she was operating the vehicle while intoxicated. The argument is without sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2). We add these brief comments.

To prove operation for purposes of DWI, it is not necessary to observe a defendant behind the wheel of a moving vehicle. It is sufficient to prove defendant was in or around her vehicle under circumstances indicating she had been driving while intoxicated. State v. Mulcahy, 107 N.J. 467, 476 (1987); State v. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960). Even defendant's admission that she had been driving is sufficient. State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974).

In addition to defendant's admissions of driving and previously drinking wine, circumstantial evidence of operation exists, including that defendant was the lone occupant of the van, which was damaged when she struck an object while driving, forcing her to pull onto the shoulder. Taken together, these facts and the officers' observations support the inference of operation while intoxicated. State v. Chapman, 43 N.J. 300, 301 (1964); Ebert, supra, 377 N.J. Super. at 11.

Finally, we flatly reject defendant's speculative suggestion regarding the possible voluntary ingestion of alcohol after the accident, or the so called "glove box defense." State v. Snyder, 337 N.J. Super. 59, 61 n.1 (App. Div. 2001). Not one shred of corroborative objective or circumstantial evidence exists to support this supposition. Under these circumstances, the court's finding of intoxication while operating a motor vehicle is unassailable.

We conclude the trial court's findings were based on sufficient credible evidence and sustain the conclusion that defendant was driving while intoxicated beyond a reasonable doubt. Locurto, supra, 157 N.J. at 471.

Defendant renews her request to dismiss the State's cross-appeal based upon the Law Division's finding that she was "not guilty" of a per se violation of the statute. She argues the Law Division "acquitted" her of the per se offense and thus double jeopardy attaches. See United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896) (holding that the Fifth Amendment's double jeopardy clause prohibits the government from appealing an acquittal). Defendant maintains the 2004 amendment to N.J.S.A. 39:3-50 "created two separate and distinct classes of first-time [DWI]-offenders depending on the recorded BAC" and suggests the 2004 modification is analogous to the former statutory scheme reviewed in State v. Lanish, 103 N.J. Super. 441, 444 (App. Div. 1968), aff'd, 54 N.J. 93 (1969). Citing our conclusion in Lanish, supra, defendant points out she should not be faced with the choice of "accepting what [s]he believes to be an erroneous conviction or, by appealing therefrom, risk[ing] retrial on a charge of which [s]he has been acquitted." 103 N.J. Super. at 444.

The State rejects defendant's contention of acquittal, stating the Law Division found her guilty of DWI, and disputes defendant's statutory interpretation argument. Maintaining State v. Kashi, 360 N.J. Super. 538, 544-45 (App. Div. 2003), aff'd, 180 N.J. 45 (2004), conclusively dispels defendant's position, the State contends we must review the erroneous evidential ruling by the Law Division judge and reverse "an illegal sentence."

When Lanish, supra, was decided, N.J.S.A. 39:4-50 included two distinct offenses: (a) driving while intoxicated, and (b) driving while impaired. 103 N.J. Super. at 442-43. In our examination of the then-statute, we concluded a driver who, in the municipal court, was acquitted of "operating a motor vehicle while under the influence of intoxicating liquor" but convicted of "operating a motor vehicle while his ability to operate was impaired" could not, on trial de novo in the Law Division, be found guilty of driving while under the influence. Ibid.

The statute was amended in 1977 to provide for one offense, that of driving while intoxicated. See P.L. 1977, c. 29, 1. In Kashi, supra, we examined the defendant's double jeopardy challenge to a trial de novo DWI conviction sustained on an evidentiary basis found insufficient by the municipal court. 360 N.J. Super. at 544-45. We noted nothing precluded the Law Division from conducting an independent assessment of the sufficiency of the evidence. Id. at 545. In reviewing the statute, we concluded DWI may be proven "through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level." Ibid.; see also State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006). "A failure of proof on one aspect is not, by any measure, an acquittal." Kashi, supra, 360 N.J. Super. at 545.

The 2004 statutory amendments again altered N.J.S.A. 39:4-50(a). The modifications lowered the BAC percentage for the legal presumption of intoxication and added tiered penalties for BAC readings below and above .10 percent. The current statute provides in pertinent part:

(a) . . . a person who operates a motor vehicle while under the influence of intoxicating liquor, . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . . shall be subject:

(1) For the first offense:

(i) if the person's blood alcohol concentration is 0.08% or higher but less than 0.10%, or the person operates a motor vehicle while under the influence of intoxicating liquor, . . . to a fine of not less than $250 nor more than $400 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers . . . and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of three months;

(ii) if the person's blood alcohol concentration is 0.10% or higher, . . . to a fine of not less than $300 nor more than $500 and a period of detainment of not less than 12 hours nor more than 48 hours spent during two consecutive days of not less than six hours each day and served as prescribed by the program requirements of the Intoxicated Driver Resource Centers . . . and, in the discretion of the court, a term of imprisonment of not more than 30 days and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of not less than seven months nor more than one year[.]

[N.J.S.A. 39:4-50.]

We reject defendant's argument that, in effect, the 2004 amendments create two distinct offenses. In adopting the 2004 amendments subsequent to our conclusions in Lanish and Kashi, the Legislature has chosen not to return to distinguishable offenses. Rather, the statute remains "a unified offense under which a defendant can be found guilty on alternate bases." Kashi, supra, 180 N.J. at 48. Thus, "a failure of proof on one aspect is not, by any measure, an acquittal." Kashi, supra, 360 N.J. Super. at 545. The Law Division judge's inopportune use of the phrase "not guilty" does not cloak defendant with the protections of double jeopardy jurisprudence. Thus, defendant was not "acquitted" of the charged offense by the Law Division. Rather, the court convicted defendant based solely upon the observational evidence.

That said, the current statute differs from the one examined in Kashi, as it lowered the minimum BAC for conviction and enhanced penalties for first-time offenders who operate a vehicle with a BAC in excess of .10 percent. Since a BAC reading can only be shown by admissible breath or blood tests, not by observation, defendant correctly observes that if the State is successful in appealing the admissibility of the Alcotest results, the .11 percent BAC readings would subject her to higher penalties than if she had not appealed.

In this regard, we reject the State's suggestion that the 2004 amendments had taken effect when the Supreme Court rendered its affirmance of Kashi, thus defeating defendant's argument. This position ignores the limitation of the Court's ruling that

because the de novo review did not subject defendant to a conviction after an acquittal, or to the possibility of a conviction of a more serious offense, or of an offense carrying a higher penalty, we find no double jeopardy or due process violation.

[W]e take the opportunity to reaffirm our prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal.

[Kashi, supra, 180 N.J. at 48-49 (citations omitted).]

If the State successfully appeals, plaintiff's first-offender status places the exposure to an enhanced penalty squarely before us.

"The guarantee against double jeopardy 'protects against multiple punishments for the same offense.'" State v. Ciancaglini, 411 N.J. Super. 280, 289 (App. Div. 2010) (quoting

United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980)). In addition, "if 'the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged[,]'" the government may not appeal. State v. Widmaier, 157 N.J. 475, 490 (1999) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651 (1977)).

Here, the offense is the same, whether proven by observational evidence or blood alcohol content, Kashi, supra, 180 N.J. at 48, but the offense is subject to a higher penalty if the State can prove a BAC of .10 percent or more. The Law Division's ruling suppressing the Alcotest results precluded the State from proving that defendant's BAC was at least .10. Whether correct or not, that decision is not subject to appeal after a judgment of conviction has been entered, because appeal and reversal would "subject defendant to . . . the possibility of conviction of . . . an offense carrying a higher penalty." Kashi, supra, 180 N.J. at 48. Such an appeal would violate defendant's right against double jeopardy.

We recognize that a defendant's double jeopardy rights are not implicated by the State's appeal to correct an illegal sentence. Ciancaglini, supra, 411 N.J. Super. at 289; State v. Eckert, 410 N.J. Super. 389, 407 (App. Div. 2009); Chambers, supra, 377 N.J. Super. at 370; State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002); see also State v. Baker, 270 N.J. Super. 55, 74-76 (App. Div.) (holding "a court may correct an illegal sentence at any time), aff'd o.b., 138 N.J. 89 (1994). However, we reject the State's contention that the sentence imposed by the Law Division was illegal. The Law Division's factual determinations regarding defendant's guilt resulted in the State securing a DWI conviction. The sentence thereafter imposed was a proper disposition under N.J.S.A. 39:4-50(a)(1)(i).

Our conclusion that double jeopardy principles bar the State's appeal is consistent with our recent decision in Ciancaglini, supra, 411 N.J. Super. at 289-91. The Law Division in this matter relied on a factual determination when imposing sentence: that is, the absence of evidence that defendant's BAC exceeded .10 percent. Such a factual determination, unlike the legal ruling we reversed in Ciancaglini, cannot be the subject of an appeal by the State. Accordingly, we conclude the State's appeal must be dismissed.

Finally, we reverse the Law Division's conviction for reckless driving. The municipal court acquitted defendant of this charge, stating "the [c]ourt is making a finding of not guilty as the [c]ourt does not believe that the State has, in fact, achieved any testimony beyond a reasonable doubt which would indicate that there was abhorrent driving to meet . . . reckless driving," but then erroneously merged the offense with the DWI.

"Merger occurs, not of charges but rather of convictions, when there are two or more convictions which . . . must be treated as one for the purposes of sentencing." State v. Martin, 335 N.J. Super. 447, 450-51 (App. Div. 2000). The municipal court misspoke when it "merged" this conviction after acquittal. Thereafter, the Law Division erred in convicting defendant of reckless driving. This conviction must be reversed based upon the municipal court's acquittal. Widmaier, supra, 157 N.J. at 500.

Affirmed in part and reversed in part. The State's cross-appeal is dismissed.

 

For the gap to be of significance when scoring for intoxication, the gap must be greater than half an inch.

The primary objective of reducing the blood alcohol level required for a finding of a per se violation of N.J.S.A. 39:4-50 was to avoid a loss of federal highway funds. State v. Chambers, 377 N.J. Super. 365, 371 (App. Div. 2005) (citing Assembly Law and Public Safety Committee, Statement to Assembly, No. 682 (Dec. 11, 2003); Press Release, Office of the Governor, Governor Signs Law Lowering DWI Blood Alcohol Content (Jan. 20, 2004)).

Had the municipal court, rather than the Law Division, suppressed the Alcotest results and found defendant guilty based only on observational evidence, the Law Division could have disagreed with the municipal court and admitted the Alcotest evidence under the holding and reasoning of Kashi, supra, 180 N.J. at 47-48. However, the Law Division would have been precluded by a policy determination of the Supreme Court, if not by double jeopardy principles, from imposing a sentence more severe than that imposed by the municipal court. See State v. De Bonis, 58 N.J. 182, 188-89 (1971); see also Kashi, supra, 180 N.J. at 49 (stating that "a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal").

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A-0840-08T4

April 28, 2010