STATE OF NEW JERSEY v. JAMES J. REVIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3187-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES J. REVIE,

Defendant-Appellant.

________________________________

April 18, 2013

Submitted November 28, 2012 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 11-045.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief; Kimberly A. Schultz, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, James J. Revie, appeals from his fourth conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, following a trial in the Law Division. On appeal, defendant contends the State failed to prove, beyond a reasonable doubt, that he operated his vehicle under the influence, and that he should have been sentenced as a second offender. We reject both contentions and affirm.

I.

The record reveals that on December 23, 2010, around 7:55 p.m., while on routine patrol in an unmarked vehicle in Mine Hill, Officer Douglas Paugh of the Wharton Police Department observed a vehicle stopped on Pine Street "in the middle of the road" about fifty feet from the stop sign, where it remained for approximately one minute. The vehicle then inched closer to the stop sign and stayed there for another thirty seconds before making a right-hand turn, even though traffic was clear in both directions.

After making the turn, the vehicle suddenly accelerated at a high rate of speed past Officer Paugh. The officer followed in pursuit on Route 46, estimating the vehicle was traveling at approximately sixty miles per hour in a forty-five-mile-per-hour speed zone at that point. During the pursuit, the vehicle strayed onto the shoulder for approximately fifty feet and then returned to the westbound lane for a short while. It then straddled the double yellow line for a short distance before once again returning to the lane. Based upon these observations, Officer Paugh activated his emergency lights and stopped the vehicle.

Officer Paugh approached the vehicle on the driver's side and requested the driver to produce his credentials. The license identified him as James J. Revie. While there, Officer Paugh detected the odor of an alcoholic beverage emanating from defendant. He also observed defendant fumble through his wallet in an effort to locate his credentials. Officer Paugh also noticed that defendant's speech was slow, his eyes were bloodshot and watery, and his face was flushed. When asked if he consumed any alcoholic beverages that night, defendant admitted to having had four or five beers.

Officer Paugh then administered a number of field sobriety tests, starting with the horizontal gaze nystagmus test. He instructed defendant to keep his head still and, using only his eyes, track the movement of the officer's pen. Defendant failed to follow instructions on his first and second attempts. When he eventually performed the test correctly, Officer Paugh observed that defendant's eyes were twitching and that he lacked smooth pursuit in both eyes.

Officer Paugh then instructed defendant to perform the walk-and-turn test after explaining and demonstrating the test to him. Twice during Officer Paugh's instructions, defendant swayed and appeared to lose his balance. Defendant also failed to touch his heel with his toe and was unable to perform the heel-to-toe test in a straight line, stepping off to his right three times.

When Officer Paugh demonstrated the one-leg-stand test, defendant indicated he would have difficulty performing the test because he broke both his ankles years ago. Officer Paugh testified that because defendant's injury was not recent and he did not have casts on his ankles, he encouraged defendant to try his best. Defendant attempted the test three times. Each time, defendant only raised his foot approximately two inches off the ground, swaying from side to side while doing so. He sagged at the knees, lost his balance, and was unable to hold the stance for longer than four seconds. After his third try, defendant refused to continue the test. Officer Paugh placed defendant under arrest for driving while intoxicated and transported him to police headquarters where an Alcotest1 was administered by another officer. Prior to the test, Officer Paugh observed that defendant was swaying, rigid, stood with his feet apart for balance, and his speech was slobbering and slow.

At trial before the municipal court judge, defendant produced Dr. Paul Greenberg, a licensed podiatrist, as an expert witness. Dr. Greenberg testified that defendant has had a history of rheumatoid arthritis and other orthopedic problems, in particular, a history of meniscus tears in both knees, prior fractures of both ankles, as well as his tibia and fibula, and has had screws and rods implanted in his legs.

Dr. Greenberg performed a number of tests on defendant. He stated defendant's vascular evaluation was normal, although he had some swelling in both ankles, which he attributed to defendant's age and weight. The doctor diagnosed a limited range of motion in defendant's ankles, which he expressed is not uncommon among individuals who suffer from rheumatoid arthritis. He concluded that due to his arthritis, defendant had a painful gait which he described as akin to "walking with a rock in your shoe." Lastly, Dr. Greenberg simulated the standardized field sobriety tests defendant underwent and opined defendant's orthopedic problems prevented defendant from performing both the one-leg-stand and the walk-and-turn tests. According to the doctor, these problems would prevent defendant from performing these tests if completely sober and in a controlled environment.

Defendant also presented, without objection, Herbert Leckie, a former member of the New Jersey State Police, as an expert in the area of standardized field sobriety tests. He opined Officer Paugh committed several procedural errors in administering the sobriety tests: 1) he did not ask whether defendant had a pre-existing medical condition or injury that would impair his performance of the walk-and-turn test; 2) he failed to instruct defendant to look at his feet during the walk-and-turn test in order to eliminate distractions, which could impact performance of the test and the reliability of the results; 3) he made defendant walk six steps back and forth rather than nine steps, as prescribed; 4) he failed to administer an alternative test when, during the one-leg-stand, defendant indicated he had medical problems that affect his legs; and 5) he required defendant to perform balance tests, which was improper because defendant was more than fifty pounds overweight. Mr. Leckie also criticized Paugh's failure to explain, during his testimony, the distance between defendant's heel and toe when defendant performed the walk-and-turn test, and Paugh's failure to confirm, during his testimony, that he instructed defendant to keep his hands and arms at his sides during the one-leg-stand test.

On cross-examination, Mr. Leckie testified that during the twenty years he worked as a trooper, he examined hundreds of people under the influence of alcohol. Notably, he admitted it is possible to conclude that a person is inebriated based on their appearance, demeanor, fumbling movements or emitting an odor of alcohol. The State did not produce rebuttal expert witnesses.

At the conclusion of the trial, Judge Michael Luther orally placed his opinion on the record. He found Officer Paugh to be "highly credible" based on his twenty years of experience in the field and his demeanor on the stand. He further found Officer Paugh's decision to stop defendant's vehicle was reasonable in light of defendant's unexplained stop in the middle of Pine Road, his delay in turning after stopping at the stop sign, his sudden acceleration upon turning, traveling above the speed limit, and his erratic driving across the double yellow line and into the shoulder on Route 46.

Next, Judge Luther credited Officer Paugh's testimony defendant smelled of alcohol, his speech was slow and slobbery, his eyes were bloodshot and watery, as well as defendant's admission he had consumed four to five beers that night. In addition, he concluded the somewhat imperfect administration of the sobriety tests was not fatal to the State's case, as defendant struggled to maintain his balance even before he performed the tests.

Judge Luther characterized Dr. Greenberg's testimony as "somewhat vague and ambiguous" and found it to be of limited relevance because the doctor never treated defendant prior to the DWI arrest, nor reviewed x-rays of defendant's injuries. He likewise determined that Dr. Greenberg's re-administration of the field sobriety tests to defendant, as part of his examination, was "of limited value" since defendant "had a vested . . . interest in . . . Dr. Greenberg's opinion of his ability to perform" the tests. Ultimately, Judge Luther concluded the procedural defects in the administration of the sobriety tests did not undermine Officer Paugh's determination defendant was driving while intoxicated, which he deemed appropriate in view of the totality of the circumstances. Consequently, the judge found defendant guilty of all charges. The summonses for speeding, N.J.S.A. 39:4-98; careless driving, N.J.S.A. 39:4-97; failure to keep right, N.J.S.A. 39:4-82; and failure to maintain lane, N.J.S.A. 39:4-88, were merged into the reckless driving charge, leaving the DWI and reckless driving charges remaining for sentencing purposes.

Prior to sentencing, defendant urged the court to treat his DWI conviction, his fourth, as a second offense pursuant to the step-down provision of N.J.S.A. 39:4-50 because there was a gap of more than ten years between his current conviction and his 1994 DWI conviction. He further asserted that such treatment would be proper given that he obtained post-conviction relief for his 1982 conviction, functionally making him a third offender with a hiatus of more than ten years between his second (1994) and third (2011) offenses. Judge Luther rejected defendant's argument, finding defendant had used his "step-down" benefit in 1994 when his third offense was treated as his second. The judge sentenced defendant on the DWI conviction as a third-time offender, imposed a 180-day custodial sentence, which the court stayed pending appeal, a ten-year loss of defendant's driving privileges, and appropriate fines and penalties.

On appeal de novo to the Law Division, Judge David Ironson credited the municipal judge's credibility finding regarding Officer Paugh's testimony. He concluded the automobile stop was constitutionally valid in view of Officer Paugh's observations before the stop, including defendant's sudden stop in the roadway and erratic driving. The judge summarized the remainder of Officer Paugh's testimony, addressing defendant's demeanor before and during the field sobriety tests and concluded:

Although each one of these events described in and of itself may not prove beyond a reasonable doubt that the defendant was intoxicated, this [c]ourt finds, however, that when they are taken together, they do prove beyond a reasonable doubt that the defendant was intoxicated.

[T]he [c]ourt comes to this conclusion even without considering the defendant's performance on the walk[-]and[-] turn test and the one[-]leg[-]stand test. The [c]ourt certainly gives the defendant the benefit of the doubt on said tests due to his medical condition. So, even without those field sobriety tests, when you look at the totality of the circumstances . . . the [c]ourt does believe that, and does find that all these factors, when taken together, prove beyond a reasonable doubt that the defendant was under the influence of an intoxicating liquor, and that he did have a substantial deterioration and diminution of his mental and physical capabilities. The [c]ourt finds that he was invibed [sic] to the extent that his physical coordination and his mental faculties were deleteriously affected.

So, therefore, the [c]ourt does find the defendant guilty beyond a reasonable doubt of Driving While Intoxicated pursuant to N.J.S.A. 39:4-50.

As to the alleged sentencing error, Judge Ironson found defendant "fail[ed] to consider that . . . [he] has already received the benefit of the step-down provision." In reaching this conclusion, the judge relied upon our decision in State v. Burroughs, 349 N.J. Super. 225, 227-28 (App. Div.), certif. denied, 174 N.J. 43 (2002), where we explained the Legislature did not intend the step-down provision to serve as a continuous bail-out program for repeat DWI offenders so long as there was a ten-year gap between their violations of the DWI statute. Ibid. Notably, Judge Ironson stated:

[E]ven if we disregard the 1982 conviction, which I'm required to do for sentencing purposes, you had '81, you had '94 and you have 2011. [Defendant] already got the step-down in 1994, so that's the one-time step-down, and now, even [though] there is more than ten years that have passed between '94 and 2011, he's not entitled -- in my interpretation of Burroughs -- to a second step-down. So, I do find that this is his third offense.

The judge sentenced defendant in accordance with the sentence imposed by the municipal court judge and granted bail pending appeal. The present appeal followed. On appeal, defendant raises the following points for our consideration:

POINT I

THE STATE HAS FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. REVIE OPERATED A VEHICLE UNDER THE INFLUENCE OF ALCOHOL.

POINT II

MR. REVIE WAS INCORRECTLY SENTENCED AS A THIRD OR SUBSEQUENT OFFENDER UNDER LAURICK AND THE "STEP DOWN" PROVISION OF N.J.S.A. 39:4-50(a)(3).

II.

Our role in this appeal is limited in that we will "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 252 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). In that regard, our task is limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). However, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

DWI may be proved by either "proof of a defendant's physical condition or proof of a defendant's blood alcohol level." State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, o.b., 180 N.J. 45 (2004). Therefore, testimony of an officer who observes the physical signs of a defendant's intoxication is sufficient to prove guilt of a DWI offense beyond a reasonable doubt. See Johnson, supra, 42 N.J. at 166; see also State v. Pichadou, 34 N.J. Super. 177, 180 (App. Div. 1955) (holding that in prosecution for driving while intoxicated, "[i]t is not to be doubted that the average witness of ordinary intelligence, although lacking special skill, knowledge and experience but who has had the opportunity of observation, may testify whether a certain person was sober or intoxicated").

Defendant argues his conviction was not supported by credible evidence because the field sobriety tests were improperly administered and the reliability of their results was undermined by his medical condition. Judge Ironson, however, disregarded the results of the psycho-physical tests in concluding the State proved beyond a reasonable doubt defendant was driving under the influence. Rather, he focused upon the totality of the circumstances to determine whether the evidence met the requisite standard.

These circumstances included defendant's erratic operation of his vehicle, Officer Paugh's observation of defendant's physical demeanor, and defendant's admission to the consumption of alcohol, which were sufficient to convict him of DWI. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that "observational evidence" may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI"), aff'd, 293 N.J. Super. 535 (App. Div. 1996); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that the defendant's slurred speech, loud and abusive behavior, disheveled appearance, red and bloodshot eyes, together with the strong odor of alcohol, were sufficient to sustain a DWI conviction). Accepting the existence and validity of defendant's orthopedic problems, as testified to by Dr. Greenberg, does not vitiate his erratic driving, his slow and slobbering speech, his bloodshot eyes, flushed face or the smell of alcohol emanating from his person. These conditions have been deemed sufficient to support a DWI conviction. Morris, supra, 262 N.J. Super. at 422.

III.

Defendant's conviction represented his fourth DWI conviction. His earlier convictions were on April 8, 1981, April 20, 1982, and October 12, 1994. In 1994, defendant was sentenced as a second DWI offender, although it was actually his third offense, because that conviction occurred more than ten years after his 1982 conviction. Shortly before trial in the present matter, defendant secured post-conviction relief from his 1982 DWI conviction that resulted from an uncounseled plea. Therefore, pursuant to State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), that conviction was not considered for purposes of enhancing defendant's penal exposure. Thus, defendant argues he is technically a second offender and, therefore, the Law Division judge erred in sentencing him as a third or subsequent offender. We disagree.

The penal consequences that flow from a DWI conviction escalate with each subsequent DWI conviction. N.J.S.A. 39:4-50. A first-time offender may "in the discretion of the court, [be sentenced to] a term of imprisonment of not more than 30 days . . . ." N.J.S.A. 39:4-50(a)(1)(i) and (ii). A second offender is exposed to a mandatory jail term of "not less than 48 consecutive hours . . . nor more than 90 days . . . ." N.J.S.A. 39:4-50 (a)(2). For a third or subsequent offense, the statute requires a sentence of "not less than 180 days." N.J.S.A. 39:4-50 (a)(3). Pursuant to section (a)(3) of the statute, a defendant whose first and second or second and third convictions are separated by at least ten years is afforded a downward variance at sentencing.

N.J.S.A. 39:4-50(a)(3) provides:

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against him [or her] in order to render him [or her] liable to the punishment imposed by this section on a second or subsequent offen[se], but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes.

In support of his argument that he is entitled to a step-down sentence for the instant DWI conviction, defendant cites an unpublished Appellate Division case: State v. Malone, No. A-1791-07 (App. Div. October 2, 2008). That case does not constitute precedent. See R. 1:36-3 ("No unpublished opinion shall constitute precedent or be binding upon any court.")

We are satisfied State v. Burroughs, supra, 349 N.J. Super. at 225, is dispositive.2 In Burroughs, the defendant was first convicted of DWI in April 1982. Id. at 226. His second conviction came sixteen years later in 1998, at which time he was sentenced as a first offender pursuant to the step-down provision of the DWI statute. Ibid. When convicted of a DWI for a third time two years later, the municipal judge sentenced the defendant as a second offender, reasoning that by virtue of application of the step-down sentence in 1998, the defendant's 1982 conviction had been forgiven. Ibid. The Law Division judge disagreed and remanded the matter for the defendant to be sentenced as a third offender. Id. at 226-27. On appeal, we affirmed. Id. at 227.

We explained the step-down provision of the DWI statute "accords sentencing leniency to a driver who is a second drunk driving offender where there is a hiatus of ten or more years between the first and second offenses, and to a driver who is a third drunk driving offender where there is a hiatus of ten or more years between the second and third offenses. Burroughs, supra, 349 N.J. Super. at 227; State v. Conroy, 397 N.J. Super. 324, 330 (App. Div.), cert. denied, 195 N.J. 420 (2008). We reasoned, however, the Legislature did not, by promulgating this provision, "intend to grant a pardon in perpetuity to an offender who repeatedly violates the law." Burroughs, supra, 349 N.J. Super. at 228.

[H]aving been granted such leniency, the defendant has no vested right to continued "step-down" status where he commits a subsequent drunk driving offense. The earlier offense is not "forgiven." Having been granted leniency by virtue of the infraction-free lapse of time between the two earlier violations, the offender has received his reward for good conduct and is entitled to no further consideration.

[Id. at 227.]

Our Supreme Court has held:

[T]he overall scheme of [New Jersey's drunk-driving] laws reflects the dominant legislative purpose to eliminate intoxicated drivers from the roadways of this State. To this end, the Legislature, working in tandem with the courts, has consistently sought to streamline the implementation of these laws and to remove the obstacles impeding the efficient and successful prosecution of those who drink and drive.

[State v. Tischio, 107 N.J. 504, 514 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, L. Ed.2d 855 (1988).]

Given the well-established public policy in this State to remove drunk drivers from the roadway, it is highly unlikely the Legislature would impose strict sanctions on repeat DWI offenders and simultaneously restrict the applicability of such sanctions. Lucci, supra, 301 N.J. Super. at 63, (stating it is doubtful that "just because a repeat offender manages to have a ten-year hiatus between his or her second and third offenses, the Legislature intended that all subsequent offenses would be treated as second offenses for enhanced penalty purposes").

A

1 For reasons not relevant to the issues on appeal, the result of the Alcotest was not admitted into evidence.

2 It is important to note that there are no published cases on point regarding this issue. In State v. Ciancaglini, 204 N.J. 597, 612 (2011), confronted with the question of whether a defendant's prior conviction for refusal to submit to a Breathalyzer test can be used to enhance her sentence on a subsequent DWI conviction, the New Jersey Supreme Court broached but declined to resolve the tangential issue of whether a defendant may twice avail himself of a step-down.