STATE OF NEW JERSEY v. LORETTA L. SCHWORN

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4919-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LORETTA L. SCHWORN,

Defendant-Appellant.

_________________________________________________

March 31, 2011

Submitted March 16, 2011 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-049.

Law Office of Robert W. Ratish, attorneys for appellant (Robert W. Ratish, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

In the early morning hours of June 3, 2008, defendant's vehicle was stopped by police in Morris Township because she was exceeding the posted speed limit and thereafter failed to make a left turn from a left-turn-only lane. In speaking with defendant, the officer detected an odor of alcohol and noticed she had watery eyes. The officer received a non sequitur to one question,1 and defendant admitted having had two drinks that evening at a Morristown restaurant.

The officer conducted a field sobriety test. He stopped the one-legged-stand test because defendant had trouble keeping her balance; defendant's speech was also slurred when she counted out loud. In addition, the officer asked defendant to perform the walk-and-turn test; she was unable to touch heel to toe or maintain a straight line. Defendant was arrested and taken to the police station.

Another officer was called to administer the Alcotest. He later testified that after waiting the required twenty-minute observation period, see State v. Chun, 194 N.J. 54, 79, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), defendant provided two adequate breath samples, resulting in a detected blood alcohol content of .12%. Defendant was issued a summons for driving while intoxicated (DWI), N.J.S.A. 39:4-50, speeding, N.J.S.A. 39:4-98, and failure to exhibit an insurance card, N.J.S.A. 39:3-29.

After hearing testimony regarding defendant's motion to suppress evidence, which was denied, the municipal judge conducted a trial. At the trial's conclusion, the municipal judge found defendant guilty of DWI based upon the result of the Alcotest but found the State's case insufficient insofar as it was based on the officers' observations. This was defendant's second DWI conviction.

The judge imposed a $506 fine, a $100 surcharge, and other penalties and assessments. In addition, defendant's driving privileges were suspended for two years. She was also sentenced to forty-eight hours in jail and directed to complete thirty days of community service.2

Defendant appealed, and the Law Division judge conducted a de novo review. He found defendant guilty of DWI based on both the Alcotest results and the officers' observations. The Law Division judge imposed a $506, a $200 surcharge, and other monetary penalties and assessments. In addition, defendant's driving and registration privileges were suspended for two years, she was directed to provide thirty days of community service, and she was sentenced to a forty-eight hour jail term, which the judge permitted to be served at the Intoxicated Drivers' Resource Center. The judge also convicted defendant of failing to produce proof of insurance and imposed a $155 fine plus costs on that violation.

Defendant appealed to this court, arguing:

I. THE STATE DID NOT PROVE THAT THE MANDA-TORY TWENTY-MINUTE OBSERVATION PERIOD WAS OBSERVED PRIOR TO ADMINISTERING THE ALCO-TEST.

II. THE COURT ERRED IN REFUSING TO TAKE JUDICIAL NOTICE THAT A PERSON CANNOT EXHALE FOR THE EXCESSIVE AMOUNT OF TIME INDICATED BY THE ALCOTEST RESULTS.

III. THE LAW DIVISION ERRED IN FAILING TO DEFER TO THE MUNICIPAL COURT'S CREDIBILITY FINDINGS WITH REGARD TO THE OBSERVATION CASE.

IV. DEFENDANT WAS DENIED [THE] CONSTITU-TIONAL RIGHT TO A SPEEDY TRIAL (Not Raised Below).

We find these arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Points I and II.

In Point I, defendant argues that the DWI conviction cannot be sustained because the officer did not honor the twenty-minute pre-Alcotest observation period required by Chun. In support of this contention, defendant relies on the fact that the officer recorded in his report that the observation period started at 1:50 a.m. and ended at 2:10 a.m., but the report issued from the Alcotest machine indicated that the test protocol began at 2:07 a.m. When confronted about this at trial, however, the officer explained that he gauged the twenty-minute observation period by reference to his wristwatch and not by the Alcotest timer. The trial court was entitled to find that explanation credible and, in applying our standard of review, we are obligated to defer to that finding. State v. Locurto, 157 N.J. 463, 470-71 (1999).

In Point II, defendant refers to the officer's testimony that defendant provided the Alcotest machine with two breaths within two minutes, the first of which lasted for 16.2 seconds and the second lasted for 25.7 seconds. Defendant argues that the trial court erroneously refused her invitation to take judicial notice that exhaling for those periods of time was not possible. Even though the Law Division judge acknowledged that he thought this circumstance was "unusual," he concluded that this question -- in light of the lack of any evidence to suggest the Alcotest machine was not working properly -- was insufficient to give rise to a reasonable doubt. Again, the judge reached a permissible conclusion about the weight of the evidence that is entitled to deference. Moreover, the precise point raised on appeal is not that the judge's finding of guilt was against the weight of the evidence but that he failed to take judicial notice of the impossibility of the extent and timing of the breaths provided by defendant. Even if it could be assumed, which we doubt, that this was a proper area for the application of N.J.R.E. 201(c), we are satisfied the judge did not abuse his discretion in refusing defendant's request.

1When asked where she was coming from, defendant said, "Chicago." When the officer asked about the whereabouts of her luggage, defendant said she had returned from Chicago the day before.

2The judge found defendant guilty of failing to produce proof of insurance and dismissed the summons for speeding.