STATE OF NEW JERSEY v. JENNIFER S. TOWLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JENNIFER S. TOWLE,

Defendant-Respondent.

________________________________________________________________

Argued April 22, 2013 Decided

Before Judges Ashrafi and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 12-04-12.

Laura L. Nazzaro, Assistant Prosecutor, argued the cause for appellant (David J. Weaver, Sussex County Prosecutor, attorney; Ms. Nazzaro, of counsel and on the brief).

Daniel G.P. Marchese argued the cause for respondent.

PER CURIAM

The State appeals from an order entered in the Law Division after a de novo trial that found defendant not guilty of refusing to take a breath test. Because the State's appeal is barred by double jeopardy principles, we affirm.

On August 9, 2010, defendant was arrested by Sparta Township Police Department officers for driving while intoxicated (D.W.I.). After being transported to the police station, defendant refused to submit to a breathalyzer test. She was charged with D.W.I., N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; resisting arrest, N.J.S.A. 2C:29-2(a)(1); and disorderly conduct, N.J.S.A. 2C:33-2(a)(1). She was convicted of all charges in municipal court and sentenced as follows: On the D.W.I. charge, the court imposed a $1000 fine, a ten-year loss of her driver's license, a three-year interlock ignition device on her vehicle, forty-eight hours at the Intoxicated Driver Resource Center (the IDRC), six months in county jail, and other fines and surcharges. On the refusal charge, the court imposed a two-year suspension of defendant's driver's license and forty-eight hours at the IDRC to run concurrent with the D.W.I. sentence, as well as fines and surcharges. The court merged fines and penalties for the resisting arrest conviction with those for the disorderly conduct conviction.

Defendant filed an appeal to the Law Division, which conducted a trial de novo. The Law Division judge reviewed the transcripts of the municipal court trial, watched the videotape of defendant's field sobriety tests and arrest, and listened to the 9-1-1 call. He then made his findings based upon his assessment of the evidence:

I carefully listened to the audiotape, and despite what the police say, it is very clear that on the audiotape her speech is coherent. It is appropriate. There is no slurred speech. . . . She was coherent, I understood every word she said. There was no indication whatsoever on the 9-1-1 tape that she was intoxicated.

We then move to the videotape of her arrest, and when I look at that videotape, I'm struck by the fact that over the 18 or so minutes that she was being questioned by the police, she was coherent. She was standing still. . . . [The officers] looked more like they were agitated or nervous [than] she did. . . . She was standing erect, both feet on the ground. Her clothes were not a mess. Her hair was not out of place. She had all of the appearance of someone who was not drinking, and certainly someone who was not intoxicated.

Now, the test is administered in front of . . . a liquor store, and there are people going back and forth passing her. So to the extent that there is any movement of her when she is performing the objective tests, I'm satisfied that it was . . . just as likely caused by the passage of pedestrian traffic as anything else. . . . [P]eople were walking past her and it is only natural when you are standing on one foot trying to balance yourself that you would be aware . . . of the circumstances that you are in and the people walking past you. The performance of those tests by her on the video don't [sic] indicate to me that she was intoxicated at all.

The Law Division judge discounted the officers' claims that defendant had the smell of alcohol on her breath, finding it was likely that defendant "had the one glass of wine that she admitted to[] and that she was not intoxicated at the time of this event." He then proceeded to state,"

There is a huge credibility gap between what is depicted on the video and . . . what [the officers'] actual testimony was.

. . .

This lady may have had a drink, but she was not intoxicated by any stretch of the imagination, based upon her performance of the objective tests, as well as her manner of speech to the officers, which was coherent, directly answering questions, attempting to complain about a bias incident.

The trial judge further found that the police lacked "probable cause or any reasonable suspicion that [defendant] was intoxicated." Accordingly, the trial judge found defendant not guilty of all charges, including refusal to submit to a breath test.

The State filed a notice of appeal from the order entering a judgment of acquittal on all charges. However, in its brief, the State does not challenge the acquittal of defendant on the D.W.I. charge. The State challenges only the acquittal on the refusal charge, arguing that the trial judge erred in finding that the officers lacked probable cause to arrest defendant based upon his determinations of the officers' credibility. The State contends that the trial judge did not apply the correct standard of review in conducting a trial de novo and incorrectly applied the principle of "false in one, false in all" in rendering the not guilty verdict.

The Double Jeopardy Clause of the United States Constitution guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. This protection is extended to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). In addition, the New Jersey Constitution provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. art. I, 11. See State v. Widmaier, 157 N.J. 475, 490 (1999); State v. Handy, 421 N.J. Super. 559, 606 (App. Div. 2011), certif. granted, 209 N.J. 99 (2012).

"Appeals from judgments of acquittal are constitutionally permissible only where the acquittal is unrelated to a factual determination of defendant's guilt or innocence." State v. Ortiz, 202 N.J. Super. 233, 239 (App. Div.), certif. denied, 102 N.J. 300 (1985). As a result, the government's right to appeal is generally limited to "situations in which the trial court declared a mistrial or ordered a judgment notwithstanding the verdict, a pretrial dismissal, or a dismissal based on procedural, not evidentiary, grounds."1 Widmaier, supra, 157 N.J. at 491; see also Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43, 57 (1978) (holding that defendant's "judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error").

In Widmaier, the Supreme Court explicitly addressed the question "whether the double jeopardy clause of the federal and state constitutions bars the State from appealing defendant's acquittal of the refusal charge." Id. at 481. The Court held that, even though "legally incorrect," id. at 501, a determination made by the municipal court that the defendant did not refuse to take the breath test was "a resolution based at least in part on factual findings." Id. at 500. Therefore, the Court held that the State's appeals were barred by double jeopardy principles. Id. at 501.

Here, it is evident that the trial judge's decision is based upon a finding that the evidence was insufficient to support a conviction of defendant for refusal, rather than a dismissal of the charge for any procedural reasons. The State's appeal is therefore barred by double jeopardy principles.

Affirmed.

1 Rule 2:3-1 identifies those circumstances in criminal actions in which the State may appeal or seek leave to appeal. "All of the judgments and orders included in this rule as appealable have been expressly held not to implicate double jeopardy concerns." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 2:3-1 (2013). None of these circumstances apply to the State's appeal here.