STATE OF NEW JERSEY v. KATHLEEN LAW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3614-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KATHLEEN LAW,

Defendant-Appellant.

_____________________________

August 19, 2013

Submitted February 6, 2013 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. A-37-2011.

Stephen J. Buividas, attorney for appellant.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Kathleen Law was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4 50. On appeal, defendant raises the following points for our consideration:

POINT I

THE FACTS PRESENTED AT TRIAL WERE INSUFFICIENT, CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, TO WARRANT A CONVICTION.

POINT II

DEFENDANT'S CONVICTION MUST BE SET ASIDE BECAUSE THE PROSECUTOR PRESENTED THE SUPERIOR COURT JUDGE WITH EVIDENCE WHICH HAD BEEN ORDERED SUPPRESSED AT A PRIOR STAGE OF THE PROCEEDINGS.

POINT III

DEFENDANT'S CONVICTION MUST BE SET ASIDE BECAUSE THE COURT BELOW PERMITTED THE PROSECUTION TO FILE AN UNTIMELY TRIAL BRIEF TO WHICH DEFENDANT WAS AFFORDED NO OPPORTUNITY TO REPLY.

We have considered the points in light of the record and applicable principles and conclude there is no basis to disturb the findings below. However, we express our disapproval of the State's submission to the Law Division judge, one day before the hearing, of the results from the Alcotest, which the municipal judge had excluded. We find this particularly troublesome because the State elected not to cross-appeal the exclusion of the test results after defendant filed her de novo appeal. In light of its decision not to appeal the ruling, we find no merit to the State's position that it provided the results of the breathalyzer test to "preserv[e] the issue of the wrongful exclusion of the . . . findings," in the event the court acquitted defendant of DWI. We agree, as the Law Division judge suggested, that such an approach may implicate double jeopardy principles. However, we need not resolve that issue in this appeal because the Law Division judge expressly stated that his findings were based on the record presented before the municipal judge. Under our standard of review, we are convinced the record provides substantial, credible evidence supporting defendant's conviction and we therefore affirm.

Prior to trial, defendant moved to dismiss the charge based upon an alleged lack of probable cause to arrest defendant for DWI. The court denied the motion and the matter proceeded to trial, where the parties agreed that the testimony elicited at the probable cause hearing would be incorporated into the trial and considered by the court. The court, however, granted defense counsel's motion to exclude the results of the breathalyzer test based upon its interpretation of our first decision in State v. Holland, 422 N.J. Super. 185 (App. Div. 2011). The municipal judge interpreted the decision as remanding to the trial court in order to conduct a "Frye[1] [h]earing to see what the similarities and dissimilarities are," which, in the municipal judge's mind, "support[ed] [his] conclusion [here] that [he could not] accept the Alco[t]est reading . . . because nobody has conducted a Frye hearing and said that it is a same, similar or dissimilar testing instrument or what, if any, the affect may have on the Alco[t]est reading itself."

The evidence upon which the court based its findings that defendant operated her motor vehicle under the influence was as follows. On March 7, 2011 at 9:55 p.m., Patrolman Shaun McCann was dispatched to the scene of a one-vehicle accident after being called there by his superior, Sergeant Robert Worrich. At the time of his arrival, defendant was outside of her vehicle speaking with Sergeant Worrich. The accident had occurred on Park Boulevard near the CVS Pharmacy off Berlin Road in Clementon. Patrolman McCann had passed by this area about twenty minutes earlier while responding to another matter and had not seen defendant's vehicle at that time. He inquired of defendant as to what had happened. She told the officer she had been reaching for her cell phone when she crashed into the utility pole. He asked whether she had been drinking and she responded that she had consumed some drinks at home but was okay to drive.

Patrolman McCann testified defendant exhibited slurred speech, glassy eyes, a slight sway, and an odor of alcohol. He advised defendant that he believed she was under the influence and that he would be performing field sobriety tests.

The first test he directed defendant to perform was the "walk and turn" test. He explained that in this test, the suspect stands heel-to-toe with their hands at their side as the officer instructs them to take nine steps heel-to-toe before turning and walking nine steps back to the starting position in the same manner. He explained the test to defendant and advised her not to start the test until he told her to do so. Notwithstanding these instructions, defendant started the test while he was still giving her the directions, proceeded to take an incorrect amount of steps, and then walked back to the starting point normally instead of heel-to-toe.

The next test Patrolman McCann administered was the one-leg stand. The officer testified that he had given defendant instructions on how to perform this test, and the instructions were to raise her leg six inches off the ground and begin counting until he instructed her to stop. Again, contrary to his instruction that she wait to begin the test until he told her to do so, defendant started the test while he was still speaking. She lifted her leg much higher than six inches off the ground and could not stand for longer than five seconds.

Although the officer testified that he performed a horizontal gaze nystagmus (HGN) test on defendant, the court granted defense counsel's motion to exclude any testimony regarding the results of that test. The court agreed with the defense's argument that: (1) the test was relevant only to probable cause, not for proving a DWI, and (2) Patrolman McCann was not certified to perform this test.

Finally, Patrolman McCann asked defendant to recite the alphabet from A to Z without singing. According to the officer, defendant began to sing the alphabet after his instructions, at which point he stopped her and asked her again not to sing it. Defendant complied and recited the alphabet slowly.

Based upon the totality of the circumstances, specifically, the field tests and the officer's observations, the officer placed defendant under arrest for DWI, administered Miranda2 warnings and transported her to the police station.

At the station, Patrolman McCann administered the standard drinking/driving questionnaire, which included questions as to whether the driver is ill or on medications, as well as questions addressing other factors that could influence the level of intoxication, such as what had been eaten and when or where the last drink was consumed. Defendant exercised her right to decline answering any of these questions. Defendant did not testify.

After closing arguments were presented by the attorneys, the municipal judge ruled that although it was certainly possible defendant was injured as a result of the accident or had become intoxicated after the accident, as defense counsel had urged, there had been no testimony presented that would make either of those assertions credible. The municipal judge further ruled that Patrolman McCann's testimony had been consistent and that the officer's observations were credible and reliable. Based upon the totality of the circumstances, the municipal judge ruled that defendant was guilty beyond a reasonable doubt of DWI.

Defendant filed a de novo appeal of her conviction to the Law Division. The State did not cross-appeal the municipal judge's exclusion of the results of the Alcotest. Rather, the day before the August 16, 2011 hearing, the State provided the Law Division judge with the breathalyzer test results.

During the hearing, there was extensive discussion between the Law Division judge and counsel regarding how the breathalyzer test results should be treated. The judge ultimately reached his determination without consideration of those test results. The judge noted defense counsel's concern that his judgment had been permeated by his knowledge of the .12 breathalyzer test results. The judge explained that his "back and forth" with the prosecutor "was to point out that this case was -- is -- was by no means a slam-dunk in [his] mind[,]" and in response to defense counsel's expressed concerns about his impartiality, he stated that he could only "say . . . that [he] really did make an effort to decide this case excluding it."

Turning to the evidence he relied upon to conclude the State proved, beyond a reasonable doubt, that defendant operated her motor vehicle under the influence, the judge found:

I don't believe that [defendant] drank alcohol after the accident. There's no evidence of it. She had been drinking before the accident.

It's true that there is no evidence as to how much she had been drinking. But the evidence in the record below indicates that she was swaying, slurred, had bloodshot eyes, and watery eyes at the scene. That's evidence of somebody -- somebody having more than a beer or a glass of wine, but being intoxicated.

Additionally, although she passed after singing the first time the Alphabet Test, she failed the walk and turn test, and failed the one-legged stand.

. . . .

. . . [I]t's a one vehicle accident. The -- the defendant had ingested alcohol before the accident happened[,] . . . [was] swaying in terms of the ability to stand, [had] slurred speech, bloodshot eyes and watery eyes, [and] that's highly indicative of somebody that was drinking too much.

And when you add that with the failure of the two of the three field sobriety [tests], and even with the alphabet test, the defendant first started singing the alphabet test. It's a minor point. But that's not exactly 100 percent passage of it in -- in that regard. She was intoxicated and she was driving.

The court imposed a mandatory two-year revocation of defendant's driving privileges as a second-time offender and a mandatory forty-eight hours at an Intoxicated Driver Resource Center. In addition, the court ordered installation of an ignition interlock device and also imposed the requisite fines, penalties, surcharges and court costs. The court also vacated the stay of defendant's license surrender.

I.

A Law Division judge in a trial de novo must "make his own findings of fact" based upon the record made in the municipal court. State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). "His is not the appellate function governed by the substantial evidence rule but rather an independent fact-finding function . . . ." Ibid. (citations omitted).

On the other hand, our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge could reasonably have been reached by the sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 472 (1999) (citing State v. Barone, 147 N.J. 599, 615 (1998)); State v. Johnson, 42 N.J. 146, 162 (1964). Additionally, we accord great deference to the consistent conclusions of two other courts, State v. Stas, 212 N.J. 37, 49 n.2 (2012), and "[u]nder the two-court rule, [we] ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Locurto, supra, 157 N.J. at 474; State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999)).

"That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Johnson, supra, 42 N.J. at 162. We will reverse only after being "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . ." Ibid. Measured under this standard, we discern no basis to disturb the Law Division judge's determination.

Defendant contends that when the evidence presented is considered under the totality of the circumstances, it was insufficient to support a conviction for DWI. We disagree.

In order to prove that a person is guilty of driving while intoxicated under N.J.S.A. 39:4-50(a), the State must establish the defendant's guilt beyond a reasonable doubt through either proof of the defendant's physical condition or their blood alcohol level. State v. Howard, 383 N.J. Super. 538, 548 (App. Div.), certif. denied, 187 N.J. 80 (2006) (quoting State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff'd, 180 N.J. 45 (2004)). An admission of alcohol consumption in combination with a police officer's observations and the defendant's failure to successfully complete field sobriety tests is sufficient to prove that a defendant was driving while intoxicated, even in the absence of a breathalyzer test. See State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div. 1988) (affirming the Law Division's de novo affirmation of the municipal court's conviction of the defendant for DWI based on the officer's observations, the defendant's admission of consuming alcohol, and the defendant's failure of multiple field sobriety tests, even though the breathalyzer test was excluded from evidence), certif. denied, 114 N.J. 473 (1989).

Here, as in Nemesh, the municipal judge, as well as the Law Division judge, found defendant guilty of DWI based upon defendant's physical condition, as witnessed by the officer, her admission that she had been drinking, and circumstances surrounding the accident. In other words, the decision was based upon the "totality of the circumstances" as opposed to any single observation or test being determinative. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996). The municipal judge credited Patrolman McCann's testimony that defendant was swaying while standing, staggering when walking, exhibited bloodshot and watery eyes, addressed the officer with slurred speech, and had the odor of alcohol on her breath. Additionally, the municipal judge credited the officer's testimony that defendant failed two of the three field sobriety tests and did not follow the officer's instructions initially on the third test. Further, defendant told the officer that "[s]he had some drinks at home, but she was okay to drive." Though defendant's counsel contends it was possible that defendant had gone to a local establishment and imbibed before the officer's arrival, both courts below found this assertion to be unsupported by any evidence in the record.

II.

Next, defendant contends the State's submission of the Alcotest to the Law Division, which the municipal judge excluded and which decision the State did not cross-appeal, constitutes reversible error in this case because, despite the best efforts of the Law Division judge in attempting to make a decision without taking the Alcotest into consideration, the proverbial toothpaste cannot be put back into its dispenser. As we noted earlier, since the State did not elect to cross-appeal the exclusion of this evidence by the municipal judge, there was no basis to present this evidence, on the eve of trial, under the pretext of "preserving the record." The evidence was proffered before the municipal judge, excluded, and no cross-appeal taken once defendant appealed the conviction. Therefore, there was nothing to preserve, an observation made by the Law Division judge.

The Law Division judge engaged in extensive discussion with counsel, particularly the prosecutor, about what the State sought to achieve with this late submission. Following fourteen transcript pages of argument by defense counsel, during which there was no reference to the Alcotest results, the court states, "Well, let's discuss the two things that are the elephants in the room." The next thirty-two pages of the transcript are devoted to the court's discussion of what course of action the State and the defense wanted to take with regard to the Alcotest results, with the court, sua sponte, proposing to (1) remand the matter back to the municipal judge because the judge erroneously excluded the results, (2) grant an adjournment for the parties to take discovery and have the matter tried de novo before him on the Alcotest, or (3) resolve the case based upon the record before the court. During colloquy, the judge acknowledged his awareness of the results, indicated the record may be sufficient to convict, but it was not a "slam-dunk," and if the same evidence were before him with a .02 reading, he would acquit.

Defense counsel objected to the court's consideration of the Alcotest results, and the court rejected the State's proposal that the court decide the case on the record and if defendant were acquitted, then consider the Alcotest results which the State submitted to "preserve the record." The court then decided the matter based upon the record.

It is evident from our thorough review of the record that the Law Division judge struggled with his knowledge of the .12 reading. While he expressed, in his statement of reasons, that he "really did make an effort to decide [the] case excluding [the Alcotest results,]" it is difficult to conclude that the decision reached was not influenced by his knowledge of the results. Nonetheless, our function is to review that same record, not anew, but solely to determine whether substantial credible evidence exists in the record to support the judge's findings. We have no hesitation in concluding that substantial credible evidence supports the determination, irrespective of the improper submission of the Alcotest results.

The judge likened the record before him to the case of State v. Cleverly, 348 N.J. Super. 455 (App. Div. 2002), where we were "satisfied that the record contains substantial credible evidence to support the finding by the Law Division judge that defendant was driving while under the influence of intoxicating liquors, without regard to the breathalyzer reading" which was admitted into evidence in that case. Id. at 465. In Cleverly, the evidence presented was that the defendant had been driving at night with his headlamps turned off, the officer's observations of an odor of alcohol on the defendant, the defendant's swaying while walking, his inability to perform the one-leg raising test, and the defendant's slurred speech. Id. at 457. The evidence here was more compelling.

Defendant was involved in a one-car accident, admitted to drinking previously, swayed while standing, exhibited bloodshot eyes, slurred speech, and failed two of the three sobriety tests administered. Additionally, although she ultimately recited the alphabet correctly, she initially failed to follow the direction to recite the alphabet rather than sing it. Deferring to the credibility assessment made by the municipal judge, there was substantial, credible evidence in the record to sustain the conviction.

III.

Finally, defendant argues that there exists another basis for setting aside her conviction, namely, the State's filing of its opposition brief with the Law Division one day prior to the commencement of trial. The State does not dispute its untimely filing of its brief. Rather, its supporting brief contends the untimely filing was due to personnel shortages. We note that on October 18, 2011, the court entered an order directing defendant to file her brief by December 1, 2011, and that the State file its brief by January 13. There is nothing in the record indicating that the State notified the court of its personnel problems and requested a further extension. A court order is not a matter of form. Rather, it is expected to be followed. A personnel shortage affecting the timely submission of papers is certainly understandable. However, at a minimum, an inability to comply with a court order warrants notice to the court and an adversary. However, the State's failure to fulfill that obligation in this instance does not warrant the extraordinary relief sought, setting aside defendant's conviction.

At the outset, despite defendant's claim that she was "left with no meaningful opportunity to address the matters which that brief contained[,]" no objection to the court's consideration of the State's brief was raised before the trial court. Rather, the first reference to the late submission came after defense counsel had completed oral argument and during the court's extensive discussion related to consideration of the Alcotest results. The court took a five-minute break for each side to consider the options proposed by the court. It was after court resumed that defense counsel stated:

I appreciate the opportunity to talk to my client. We would like to go forward without the Alcotest. Our concern is, and I didn't bring this up, but I did write it down on my . . . notes, that the State had an opportunity to appeal it, just like the defense had an opportunity to appeal, which we did, within the 20 day period, 20 days being Municipal, 25 being Superior. The State never appealed the decision of the lower [c]ourt in reference to the Alcotest suppression. The day before the trial[,] the State submits to the [c]ourt -- and I'm not saying anything -- they did anything wrong or anything of that nature, but the State submits the Alcotest results to the [c]ourt, and the [c]ourt now sees a .12 reading, whereas the lower [c]ourt did not see that reading.

So, my concern as . . . an attorney, I think I would have a duty to be concerned that this [c]ourt has now seen the reading. Now, what if the reading was a .06. We're all human. Does that make a decision? You know, does that bear any weight in that sense? That's my . . . concern.

No other concerns were voiced. Therefore, we reject the argument that defendant was deprived of the opportunity to meaningfully respond to the untimely submission.

1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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