STATE OF NEW JERSEY v. SHERRY DEICHMILLER

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

SHERRY DEICHMILLER,

Defendant-Appellant.

___________________________

March 25, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-10-12-Y12.

Kenneth C. Krause argued the cause for appellant.

Bradford R. Day, Assistant Prosecutor, argued the cause for respondent (Richard T. Burke, Warren County Prosecutor, attorney; Kelly Anne Shelton, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Sherry Deichmiller was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50.1 Because this was defendant's second DWI conviction, Judge Ann R. Bartlett sentenced her to a two-year driver's license suspension, forty-eight hours in the Intoxicated Driver Resource Center (IDRC) program, and thirty days of community service. The judge also imposed the appropriate fines, costs and surcharges, and ordered defendant to install an ignition interlock device for two years after completion of her suspension. We affirm.

We derive the following facts from the record. At 11:02 a.m. on April 3, 2011, New Jersey State Trooper Maciej Waclawski arrived at the scene of a one-car accident on County Road 609 in Knowlton Township. The weather was clear and the roadway was dry. Upon his arrival, he saw a Jeep Cherokee off the edge of the right side of the roadway. The vehicle was parked slightly down an embankment approximately forty-five degrees to the roadway with the back of the vehicle facing him as he approached.

Trooper Waclawski approached the vehicle and saw a woman, later identified as defendant, in the driver's seat and a dog in the passenger seat. Defendant said she was "fine" when he asked if she was "okay" or needed medical attention. Defendant also told him that she swerved off the roadway and hit the guard rail because her dog had jumped onto her; however, she never struck the guard rail. Defendant was fumbling for her credentials while the trooper was speaking to her. Although she had her driver's license in her hand, she said she could not find it and kept looking for it. The trooper detected an odor of alcohol coming from defendant and saw that her eyes were watery, her eyelids were droopy, and she had "a thousand yard stare."

Trooper Waclawski asked defendant to exit her vehicle. He smelled a stronger odor of alcohol as she exited and came closer to him. He escorted her to the roadway to administer field sobriety tests. The trooper saw that defendant's speech was slow, she kept rambling about things unrelated to his questions, her eyes were watery and bloodshot, she had "a stare in the distance," and he still detected the odor of alcohol. After defendant twice failed to recite the alphabet, based on his education and experience, he determined that she was under the influence of alcohol and unfit to operate a motor vehicle. Defendant then repeatedly failed to follow his instructions for the horizontal gaze nystagmus test.

Trooper Waclawski arrested defendant and administered her Miranda2 warnings at the scene.3 While transporting defendant to the station, he detected the odor of alcohol in his patrol vehicle, which had not been present prior to defendant's placement in the vehicle. At the station, defendant received her Miranda warnings a second time at 12:08 p.m. She stated that she had consumed "two small bottles [of white wine], bigger than airplane bottles," and stated, incorrectly, that this occurred at 12:00 p.m. Four unopened bottles of white wine were found in her vehicle. An Alcotest was administered, but the results were inadmissible due to problems with the machine.

The municipal court judge found that defendant admitted she operated her vehicle. The judge also determined that Trooper Waclawski was credible, and concluded that based on the trooper's observations, defendant was guilty of DWI beyond a reasonable doubt. The judge sentenced defendant to a two-year driver's license suspension, forty-eight hours in the IDRC program, and thirty days of community service. The judge also imposed the appropriate fines, costs and surcharges, and ordered defendant to install an ignition interlock device for two years after completion of her suspension. The judge stayed the sentence pending appeal to the Law Division.

Following a trial de novo in the Law Division, in a written opinion, Judge Bartlett made detailed factual findings and legal conclusions and determined that defendant operated her vehicle and was guilty of DWI beyond a reasonable doubt. The judge reinstated the sentence imposed by the municipal court judge. On appeal, defendant contends the evidence was insufficient to find her guilty of DWI. We disagree.

On appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. Id.at 162. However, as in the Law Division, we are not in as good of a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A DWI conviction may be based upon physical evidence, such as symptoms observed by the arresting police officers or failure of the defendant to perform adequately on balance and coordination tests. State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996); see also State v. Ghegan, 213 N.J. Super. 383, 385 (App. Div. 1986). A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol or an admission of the consumption of alcohol and poor performance on field sobriety tests, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993); Ghegan, supra, 213 N.J. Super. at 385.

Given our standard of review, we are satisfied that the record contains ample credible evidence from which Judge Bartlett could have found defendant guilty of DWI beyond a reasonable doubt. Johnson, supra, 42 N.J. at 162. Defendant's bloodshot and watery eyes, droopy eyelids, and slow and rambling speech, together with the odor of alcohol, her admission of the consumption of alcohol, and her poor performance on the field sobriety tests, were more than sufficient to sustain a DWI conviction.

1 Defendant was also convicted of failure to maintain a lane, N.J.S.A. 39:4-88b, and careless driving, N.J.S.A. 39:4-97. She does not appeal from those convictions.

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

3 Defendant does not dispute there was probable cause for her arrest.