STATE OF NEW JERSEY v. OMAR A. TAVERAS

NOT FOR PUBLICATION WITHOUT THE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.

OMAR A. TAVERAS,

Defendant-Appellant.

_______________________________

December 15, 2014

Submitted October 7, 2014 Decided

Before Judges Koblitz and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-12-13.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Jacqueline Choi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from defendant Omar Taveras' third conviction for driving while intoxicated in violation of N.J.S.A. 39:4-50. We affirm for the reasons set forth by Judge Eugene H. Austin, J.S.C., in his well-reasoned, clear, and concise opinion of April 12, 2013.

On March 11, 2012, Officer Michael Rubino, of the East Rutherford Police Department, observed defendant operating his motor vehicle at a speed in excess of twenty miles over the speed limit. When defendant was pulled over and asked for his driving credentials, he fumbled with the paperwork and handed the officer his debit card instead of his driver's license.

The officer testified that defendant's eyes were bloodshot and watery, and that his breath smelled of alcohol. When defendant was asked if he had been drinking, he admitted he had had a "few drinks." When defendant exited his vehicle, he grasped the side of the car for balance and support.

Defendant was then given a series of field tests which he performed poorly. Specifically, when he was told to take nine steps in a straight line, stop, turn left, and then take nine steps back to the starting position, he was unable to perform the test. He was unable to walk the straight line, but more importantly, he made a right turn instead of a left and miscounted the number of steps, despite counting out loud. The officer also observed that defendant's speech was slurred.

Defendant argues that the State did not prove beyond a reasonable doubt that he was operating his motor vehicle under the influence of alcohol, as required by law. See State v. Fearon, 56 N.J. 61 (1970) (citing State v. Fearon, 110 N.J. Super. 131 (App.Div. 1969) (Sullivan, J., dissenting)). Defendant produced testimony by medical experts that he suffered from medical problems with his gait and balance which rendered the coordination field tests invalid. The State presented evidence contesting defendant's medical proofs. Defendant further argues that the officer was never asked at trial whether defendant was, in his opinion, intoxicated, although the officer charged him with driving under the influence of alcohol.

Judge Austin found that defendant's difficulty with balance and gait, and his inability to perform certain field tests was not of importance. Therefore, the question of his medical condition was not significant to the court. As the judge stated at the beginning of the hearing, he himself, because of his age, might have difficulty performing some of the walking and balance tests. In that regard, the court considered other observations by the police officer to be significant. Specifically, Judge Austin found the inability of defendant to carry out simple directions, including turning the wrong direction, miscounting the number of steps, and producing the wrong documentation, as significant evidence of an impairment in defendant's cognitive abilities as a result of the ingestion of alcohol. He also considered defendant's admission of drinking, as well as his speeding, his slurred speech, and his bloodshot and watery eyes when finding the State had proved defendant guilty beyond a reasonable doubt.

We find the judgment of conviction is well supported by the record. R. 2:11-3(e)(1)(A). We affirm the decision of the Law Division.