STATE OF NEW JERSEY v. PAUL A. KLEIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0972-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL A. KLEIM,

Defendant-Appellant.

_________________________________________________

 

Argued June 3, 2010 - Decided

Before Judges Payne and Fasciale.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Municipal Appeal No. 09-009.

Jack Dashosh argued the cause for appellant.

Paula Jordao, Assistant Prosecutor, argued

the cause for respondent (Robert A. Bianchi,

Morris County Prosecutor, attorney; Ms.

Jordao, on the brief).

PER CURIAM

Defendant, Paul Kleim, appeals from his conviction for driving while intoxicated, N.J.S.A. 39:4-50; refusal to take a breath test, N.J.S.A. 39:4-50.4a; failure to exhibit his registration card, N.J.S.A. 39:3-29; and failure to exhibit his insurance card, N.J.S.A. 39:3-29. On appeal, he raises the following issues for our consideration:

POINT I

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT HAD OPERATED HIS VEHICLE OR HAD THE INTENT TO OPERATE HIS VEHICLE AT THE TIME OF ARREST.

POINT II

THE STATE FAILED TO PROVE THAT DEFENDANT WAS UNDER THE INFLUENCE BEYOND A REASONABLE DOUBT AND IN FACT IGNORED SUBSTANTIAL EVIDENCE THAT DEFENDANT WAS NOT INTOXICATED AT THE TIME OF HIS ARREST.

POINT III

THE STATE DID NOT PROVE DEFENDANT'S REFUSAL TO SUBMIT TO A BREATHALYZER TEST BEYOND A REASONABLE DOUBT.

POINT IV

THE STATE'S RELIANCE ON THE HGN TEST TO ESTABLISH DEFENDANT'S INTOXICATION REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.

POINT V

THE STATE FAILED TO PROVE THAT DEFENDANT WAS GUILTY OF FAILING TO PRODUCE HIS REGISTRATION AND/OR INSURANCE CARD BECAUSE THE POLICE DID NOT HAVE THE RIGHT TO ENTER DEFENDANT'S AUTOMOBILE AND SEARCH FOR HIS REGISTRATION AND INSURANCE CARD WITHOUT A WARRANT.

We affirm.

I.

At the trial of this matter, to avoid repetition, the parties relied on testimony provided at a prior unsuccessful motion to suppress evidence in order to establish the police's version of events up to the time of defendant's arrest. Our summary of the facts of this matter is therefore similarly derived both from the suppression hearing and from the trial.

Patrolman Albert Chibookian testified for the State. He stated that on October 22, 2008, at approximately 8:30 in the evening, defendant came to the Jefferson Township Municipal Building to obtain an emergency responder identification card. He was informed by the police dispatcher, located at a "police window" in the lobby of the building, that the police computer that could generate such a card was broken and that the officer in charge of identification cards was unavailable. Defendant left the building, but shortly thereafter, returned and commenced to argue with the dispatcher.

At that point, Chibookian intervened, and as he entered the lobby of the municipal building where defendant was standing, he detected the odor of alcohol. Chibookian then asked defendant whether he had been drinking, but defendant denied doing so. Because defendant's eyes were glassy and bloodshot, his speech was slurred, and he had a hard time keeping his balance, Chibookian persisted in his questioning, asking defendant who drove him to police headquarters. Defendant, who was holding car keys in his hand, said "nobody" and eventually admitted to driving himself.

At that point, Chibookian advised defendant that he wished to administer some field sobriety tests because he believed defendant was under the influence of alcohol. Chibookian administered the horizontal gaze nystagmus (HGN) test, which defendant failed. He then requested that defendant put his feet together, close his eyes, and tilt his head back. When defendant did so, Chibookian observed a "very noticeable sway." Defendant was then asked to recite the alphabet from the letter "e" to "q," which defendant did, omitting "p." When informed of the omission, defendant stated "that 'p' is for me, my name is Paul." Defendant then failed the walk and turn test and a test that required him to stand on one leg while counting to thirty. At this point, Chibookian placed defendant under arrest, handcuffing him, taking his keys, and placing him in the holding area of the police station. At no time did Chibookian observe defendant actually driving.

Chibookian then went to the parking lot, located defendant's car, which was properly parked, and determined that the hood of the vehicle and windshield wipers were still warm.

Upon returning to police headquarters, Chibookian read defendant his Miranda rights and then the eleven paragraphs of the Division of Motor Vehicles standard breathalyzer statement, after which defendant refused his consent to undergo the test, stating "no" in response to the question "will you submit the samples of your breath?" Chibookian did not read to defendant the form's "additional statement," testifying that defendant had not remained silent or asked for an attorney and thus the additional statement was not required. However, Chibookian testified additionally that "I tell all the people that I arrest for drunk driving, besides the form I say listen, you don't take the test, you're going to get another ticket, you know, for not giving me the breath, breath test. So it's up to you, whatever you want to do."

Chibookian then asked defendant where his license, registration and insurance card for the car were. He stated they were in the vehicle, but when Chibookian checked it, he was unable to locate them. When the officer again asked defendant where the documents were located, defendant determined to remain silent.

At the trial, testimony was also provided by defendant's brother, Eric Kleim. The brother testified that at approximately 10:00 p.m. on the night at issue, Chibookian contacted him and requested that he pick up defendant. When he did so, he did not detect any odor of alcohol or observe any appearance or behavior either at the station or thereafter that would suggest that defendant was intoxicated. The brother testified additionally that defendant had injured his left knee, and that, knowing defendant, he would be unable to perform the field sobriety tests administered to him when sober. He additionally testified that defendant had allergies that might affect the appearance of his eyes. He stated that defendant had been at the brother's residence earlier in the evening, and that he had nothing alcoholic to drink at that time. The brother denied that defendant had returned to the municipal building to accuse the police of entering into a conspiracy to cause his arrest, as stated in the report of Officer Chibookian and by the officer himself on rebuttal.

At the conclusion of the trial, the municipal court judge found defendant guilty of the driving while intoxicated, refusing to take a breath test and failing to produce an evidence of motor vehicle insurance or registration. In doing so, the judge rejected the testimony of Eric Kleim, stating that the brother's opinion that defendant could not perform the field sobriety tests when sober lacked foundation, and the remainder of his testimony lacked credibility. In contrast, the judge found Chibookian's testimony to have been "frank, down to earth, uh, credible." Additionally, the judge found that there was no question that defendant had driven to the municipal building a fact that was admitted by defendant and corroborated by the absence of any other driver, the location of the car in the municipal building's parking lot, and the warmth of the car's hood. Thus, this was not a case of anticipatory operation, but one in which operation of the vehicle had already occurred. Further, the judge found that the results of the field sobriety tests provided evidence of intoxication and a basis for requiring defendant to take a breathalyzer test, which he had unequivocally refused to do. Additionally, the judge found that defendant had failed to produce either his registration or evidence of insurance. The judge dismissed a charge of reckless driving as the result of a lack of evidence to support the charge. The judge also dismissed a charge of failure to report a change of address. The judge sentenced defendant to fines and to a two-year license suspension.

On October 9, 2009, a Law Division judge conducted a trial de novo on the record below and, like the municipal court judge, found defendant guilty on the four remaining counts. He imposed the same sentence as had been imposed previously, staying all fines pending appeal, but requiring that defendant surrender his driver's license. This appeal followed.

II.

In a matter such as this, our scope of review is limited. Following defendant's conviction in municipal court, he appealed to the Law Division pursuant to Rule 3:23-1. See also State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division judge then conducted a trial de novo on the municipal court record pursuant to Rule 3:23-8. See also State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). In conducting that trial, the Law Division judge was required to give "due, although not necessarily controlling, regard to the opportunity of the [municipal court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). In our review, we must likewise give deference to the findings of the trial judge that were influenced by his opportunity to hear and see the witnesses. Id. at 161. Having done so, we must then determine whether the conclusions of the Law Division judge "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162; State v. Joas, 34 N.J. 179, 184 (1964). Our review of the law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

On appeal, defendant argues that he could not be convicted of driving while intoxicated because there was no evidence that he intended to operate his motor vehicle upon leaving the municipal building. While we agree that the record lacks evidence of anticipatory operation, we reject defendant's argument because defendant's conviction was premised on the fact that both direct and circumstantial evidence demonstrated that he had driven to municipal building, and subsequent testing established that he was impaired. As we noted in State v. Ebert, 377 N.J. Super. 1 (App. Div. 2005), N.J.S.A. 39:4-50, the drunk driving statute, applies to "a person who operates a motor vehicle while under the influence of intoxicating liquor." Id. at 10. We further held in that case:

"Operation" may be proved by actual observation of the defendant driving while intoxicated, State v. Prociuk, 145 N.J. Super. 570, 573 (Law Div. 1976); by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated, State v. Mulcahy, 107 N.J. 467, 476 (1987); [State v. ]Morris, 262 N.J. Super. [413,] 419-20 [(App. Div. 1993)]; State v. Sweeney, 77 N.J. Super. 512, 521 (App. Div. 1962); State v. Witter, 33 N.J. Super. 1, 5-7 (App. Div. 1954); or by defendant's admission, State v. Hanemann, 180 N.J. Super. 544, 547 (App. Div.) (affirming defendant's conviction based upon his admission that he had been driving earlier that night after the police found his empty overturned vehicle on the highway), certif. denied, 88 N.J. 506 (1981); State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974) (affirming defendant's conviction based on his admission to drinking and driving when the police woke him up in his parked car on Interstate 287); State v. Guerrido, 60 N.J. Super. 505, 509 (App. Div. 1960) (affirming defendant's conviction based on the testimony of two witnesses that he was intoxicated and his admission to police that he had been driving after his car was found "buried full length in some shrubbery and lilac bushes.").

[Ebert, supra, 377 N.J. Super. at 10-11.]

We conclude that the evidence that we have previously set forth, consisting of defendant's admission that he drove to the municipal building, the fact that he had car keys in his hand, the fact that his car was parked in the municipal building lot, and the fact that his car, when touched, remained warm, is sufficient to establish that defendant had operated a motor vehicle immediately before entering the building.

Defendant argues additionally that, because defendant was asked by the police officer whether he had driven and whether he had been drinking while he was at police headquarters, the interrogation was custodial, Miranda warnings should have been administered, and absent such warnings, his admission that he had been driving should have been suppressed. We rejected similar arguments in Ebert, supra, 377 N.J. Super. at 8-10 and in State v. Weber, 220 N.J. Super. 420, 424 (App. Div.), certif. denied, 109 N.J. 39 (1987). While neither of those cases involved questioning in a municipal building, we are unwilling to conclude that their reasoning is not controlling here, particularly because the questioning of defendant occurred in the lobby of the building, and no evidence was presented to suggest that defendant was not free to leave. "General on-the-scene questioning . . . of citizens in the fact-finding process" is not subject to Miranda warnings. Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725.

We similarly reject defendant's position that the evidence at trial was insufficient to establish intoxication. The Court has "described generally the term 'under the influence' 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.'" State v. Bealor, 187 N.J. 574, 589 (2006) (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)). "Expert proofs are not a necessary prerequisite for a conviction for driving while under the influence of alcohol." Id. at 588. Lay opinion is sufficient in this context. Id. at 585 (citing Searles v. Pub. Serv. Ry. Co., 100 N.J.L. 222, 223 (Sup. Ct. 1924); State v. Cryan, 363 N.J. Super. 442, 454-56 (App. Div. 2003); State v. Guerrido, 60 N.J. Super. 505, 511 (App. Div. 1960); and State v. Pichadou, 34 N.J. Super. 177, 180 (App. Div. 1955)). A conviction will be sustained "on proofs of the fact of intoxication a defendant's demeanor and physical appearance coupled with proofs as to the cause of intoxication i.e., the smell of alcohol, and admission of the consumption of alcohol, or a lay opinion of alcohol intoxication." Ibid. (citing Cryan, supra, 363 N.J. Super. at 454-55; State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001); and State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000)).

Here, although defendant did not admit to consuming alcohol, Officer Chibookian testified to smelling a strong odor of alcohol, and he stated that defendant's eyes were bloodshot, his speech was slurred and he was swaying. Additionally, defendant was unable to successfully complete field sobriety tests designed to test both his physical and mental capabilities. Testimony relating to an officer's observations of a defendant is typically utilized as proof of intoxication. See, e.g., State v. Weber, 220 N.J. Super. 420, 423 (App. Div.), certif. denied, 109 N.J. 39 (1987).

Defendant argues additionally that the State's reliance on the HGN test to establish defendant's intoxication requires reversal of his conviction. In this regard, defendant relies on our decision in State v. Doriguzzi, 334 N.J. Super. 530 (App. Div. 2000), in which we held that the scientific reliability of the test had not been established and, after finding that the test had been an "integral part of the decisions finding defendant guilty," we reversed the defendant's conviction. Id. at 546-47. However, in Doriguzzi, we noted that "the municipal court judge had characterized the HGN test as 'the most accurate of all tests' and the Law Division judge questioned whether HGN tests were 'really any different' than coordination tests." Ibid. In contrast, in the present case, Officer Chibookian testified that the test was "[n]ot significant" to his determination that defendant was intoxicated, and the Law Division judge did not rely on the test in finding guilt beyond a reasonable doubt, deeming it merely to be an investigatory tool of use in determining whether further testing should be performed. As a consequence, we find no error to have occurred.

Defendant argues that because he did not have all the characteristics of a drunk, he could not be convicted. However, that is not the standard.

The statute does not require as a prerequisite to conviction that the accused by 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. 1988), certif. denied, 114 N.J. 473 (1989) (citing State v. Emery, 27 N.J. 348, 355 (1958).]

Defendant argues additionally that the judge erred in failing to consider testimony by defendant's brother that defendant had allergies that caused his eyes to tear; that he had a physical impairment to his left knee; that in the brother's opinion defendant could not perform the heel to toe test without losing his balance; and that in his opinion, defendant was not intoxicated when he came to police headquarters to pick defendant up. However, no medical evidence supported the brother's claim that defendant was suffering from allergies on October 22; no medical evidence supported the claim of injury to the defendant's knee; and no evidence established how such an injury could have affected his performance of field sobriety tests. Moreover, the brother's opinion that defendant could not perform the heel to toe test when sober lacked foundation. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). And finally, we decline to challenge the court's credibility determination regarding testimony describing defendant's sobriety. As a consequence, we affirm defendant's conviction for driving while intoxicated.

III.

Defendant next argues that the State failed to prove defendant's refusal to submit to a breathalyzer test beyond a reasonable doubt. In this regard, defendant notes that the municipal judge, in accordance with the language of N.J.S.A. 39:4-50.4a, determined the issue of refusal by utilizing a preponderance of the evidence standard. By doing so, the municipal judge erred, since in State v. Cummings, 184 N.J. 84, 95 (2005), the Supreme Court held that the proper standard of proof was beyond a reasonable doubt. However, following trial de novo, the Law Division judge utilized the proper standard in determining the issue. We thus find no reversible error to have occurred in this regard.

Defendant argues as well that, upon defendant's refusal, Officer Chibookian should have read the additional statement that follows the standard breathalyzer statement. However, that additional statement is required only when the defendant's initial response is equivocal or when he seeks to remain silent or consult with an attorney. See State v. Schmidt, ___ N.J. Super. ___, 2 010 N.J. Super. LEXIS 113 (July 1, 2010). Defendant's refusal was unequivocal.

IV.

As a final matter, defendant argues that his convictions for failing to produce his registration and insurance card were invalid because they were based upon a warrantless search of defendant's car in violation of the Fourth Amendment. We disagree, finding such a search permissible under State v. Pena-Flores, 198 N.J. 6, 31 (2009). Moreover, even if the search were unconstitutional, it disclosed nothing. In these circumstances, defendant was free to exercise his statutory right to cure the violation by exhibiting the required documents to the municipal judge. See N.J.S.A. 39:3-29. He did not do so. The convictions are therefore affirmed.

Affirmed.

 

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

There was also testimony that Chibookian searched for the documents when he first inspected the car.

At various points in defendant's brief, he claims to have admitted to having consumed a couple of drinks; at other points, he disclaims such testimony.

(continued)

(continued)

16

A-0972-09T4

August 20, 2010