STATE OF NEW JERSEY v. RONALD ARBUCKLE

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NOT FOR PUBLICATION WITHOUT THE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.

RONALD ARBUCKLE,

Defendant-Appellant.

March 20, 2015

 

Argued March 4, 2015 - Decided

Before Judges Alvarez, Waugh, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 16-14.

Brian S. Schiller argued the cause for appellant (Schiller & Pittenger, P.C., attorneys; Mr. Schiller, of counsel and on the brief).

Rory Eaton, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; William A. Guhl, Assistant Prosecutor, on the brief).

PER CURIAM

Following a trial de novo in the Law Division, defendant Ronald L. Arbuckle was convicted of driving while intoxicated (DWI). Because this was defendant's third DWI conviction, Judge Julie M. Marino sentenced him to 180 days in jail, suspended his driving privileges for ten years, and ordered him to participate in the Intoxicated Driver Resource Center for twelve hours. The court also imposed the appropriate fines, assessments, surcharges, and costs. We affirm, substantially for the reasons stated by Judge Marino in her comprehensive written opinion.

The factual background and legal arguments advanced before the Law Division are set forth in Judge Marino's opinion and need not be repeated here in the same level of detail. Summarizing, on January 26, 2013, at 2:01 a.m., the Manville Police Department received an anonymous call that a snow plow was recklessly kicking up dirt and rocks at the Foxtails Lounge. Officer Joseph Buda was dispatched, and upon arriving at Foxtails observed defendant's vehicle with its plow down despite the lack of snow on the roads. Buda observed defendant leave the customer parking lot and cross the street into the employee lot, where he backed up and returned to the customer lot. Buda testified that "[t]here were people when I had initially pulled up that had directed my attention pointing towards the vehicle. . . ."

Buda moved his vehicle close to defendant's truck and upon approaching defendant detected an odor of alcohol on defendant's breath. Defendant stated that he was "sorry" and that he was "done." Defendant also responded affirmatively when asked by the officer if he had been drinking.

Buda requested that defendant exit his truck and perform field sobriety tests. According to Buda, defendant could not successfully perform the "one-leg stand" test. The officer explained that he terminated the test because defendant was unable to maintain his balance. Defendant also did not correctly perform the "walk and turn" test, as he was unable to walk heel to toe, and he put his arms away from his sides to keep his balance and did not count his steps as instructed.

Buda also testified that "defendant was having difficulty with walking" and that "[h]e was swaying and staggering, and he had to continue to keep his feet spread apart for balance." Based on the tests, defendant's admission to drinking, his observations, and the alcohol on defendant's breath, Buda concluded that defendant was intoxicated, placed him under arrest, and transported him to the Manville Police Station.

At police headquarters, Buda checked defendant's mouth at 2:25 a.m. for foreign objects to begin the twenty-minute observation period necessary before conducting the Alcotest. The observation period was first interrupted at 2:27 a.m. when defendant belched, then again at 2:50 a.m. when he sipped water from the sink during a restroom visit. At 2:55 a.m., defendant belched again, and at 3:07 a.m. defendant visited the bathroom and wiped his mouth with a towel, requiring the observation period to begin anew each time. At 3:27 a.m., after the twenty- minute period passed, Buda administered the Alcotest to defendant. The Alcotest revealed defendant had a blood alcohol content (BAC) of 0.11 percent.

The municipal court judge found defendant guilty of DWI. At a trial de novo in the Law Division, defendant argued that the initial stop of his vehicle was unlawful, that Buda lacked probable cause to arrest him, that the Alcotest results were inadmissible, and that the police acted in bad faith and violated his due process rights in failing to produce a video of the arrest.

In a forty-seven page written decision, Judge Marino carefully reviewed the evidence and rejected defendant's arguments. The judge first found that

Officer Buda acted reasonably in stopping [] [d]efendant's vehicle because he had a reasonable and articulable suspicion that [] [d]efendant was driving recklessly, in violation of N.J.S.A. 39:4-[9]6, due to the fact that he was driving back and forth between two stone covered parking lots with his snow plow down with minimal if any snow accumulation on the ground, with the potential to cause damage to property [(citing State v. Locurto, 157 N.J. 463, 470 (1999))]. In addition, Officer Buda acted reasonably under his community caretaking function because a reasonably objective police officer would have been justified in making an inquiry on property and life under these circumstances. Officer Buda was responding to a complaint of an individual driving recklessly, and was simply investigating this complaint. Several people outside of Foxtail's were concerned, evidencing the fact that the officer's inquiry on property and life was reasonable and designed to protect the public.

Judge Marino next noted that the municipal court judge found Buda's testimony to be credible. Applying the appropriate standard, Judge Marino gave due, but not controlling, regard to this assessment of Buda's credibility. State v. Johnson, 42 N.J. 146, 157 (1964). Pointing to Buda's testimony that he smelled the odor of alcohol on defendant's breath, that defendant admitted he had been drinking, was observed swaying and staggering, and was unable to successfully perform the field sobriety tests, the judge found that Buda's observations were sufficient to establish probable cause to arrest defendant for DWI.

Next, under State v. Chun, 194 N.J. 54, 79, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed 2d 41 (2008), an Alcotest operator must "wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol," and "observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence." The operator must begin counting the twenty-minute period anew "if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth." Ibid. There is no authority that requires the Alcotest operator to maintain constant eye-to-eye contact with the defendant. To the contrary, "[t]he observation may be conducted through non-visual as well as visual means, so long as the observer is able to detect whether the driver has ingested or regurgitated something that would confound the Alcotest results." State v. Carrero, 428 N.J. Super. 495, 513 (App. Div. 2012).

Here, Judge Marino reviewed the record which confirmed that Buda observed defendant continuously for twenty minutes before conducting the Alcotest, and that the officer was able to detect whether defendant ingested or regurgitated something that would confound the Alcotest results. The judge concluded that the requirements of Chun were satisfied, and that the Alcotest results were properly admitted into evidence.

Lastly, defendant argued that his due process rights were violated because the State failed to produce a videotape (MVR) of the entire stop. He contended that Buda had not administered field sobriety tests to him, contrary to the officer's testimony, and thus, the videotape would have contained potentially exculpatory evidence.

Where there has been suppression, loss or destruction of physical evidence in a criminal case, the court must consider three factors in determining if a due process violation occurred: "(1) whether there was bad faith or connivance on the part of the government; (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense; [and] (3) whether defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) (citations omitted), certif. denied, 101 N.J. 335 (1985). The defendant bears the burden of proving bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S. Ct. 1200, 1202, 157 L. Ed. 2d 1060, 1066 (2004).

Here, Judge Marino considered the Hollander factors and found that there was "no evidence in this case that there was bad faith or connivance on the part of the State." To the contrary, the judge accepted Buda's testimony "that he did not activate his overhead lights, therefore the MVR recording device was not activated in this case." The court concluded that it "[could not] find a due process violation for the bad faith destruction of evidence where there was no evidence to destroy in the first place."

Based upon the evidence presented, Judge Marino found the State had proven beyond a reasonable doubt that defendant was guilty of DWI. This appeal followed.

On appeal, defendant renews his arguments before the Law Division and presents the following points for our consideration

I. THE COURT BELOW ERRED IN FINDING THE INITIAL STOP AND QUESTIONING OF [DEFENDANT] WAS PROPER AND SHOULD BE REVERSED.

II. THE COURT BELOW ERRED IN FINDING PROBABLE CAUSE EXISTED TO CONVICT [DEFENDANT] FOR OPERATING HIS VEHICLE UNDER THE INFLUENCE AND SHOULD BE REVERSED.

III. THE COURT BELOW ERRED IN ADMITTING THE ALCOTEST RESULTS INTO EVIDENCE AND SHOULD BE REVERSED.

IV. THE COURT BELOW ERRED IN FINDING A LACK OF BAD FAITH ON THE PART OF THE POLICE UNDER STATE V. HOLLANDER FOR THEIR FAILURE TO PRODUCE AN MVR OF THE MOTION VEHICLE STOP, AND SHOULD BE REVERSED.

Our standard of review is clearly understood. When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid.(alteration in original) (quoting Johnson, supra, 42 N.J.at 157). "Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid.(citing Johnson, supra, 42 N.J.at 161-62).

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the municipal court judge. Ibid.(citing Locurto, supra, 157 N.J.at 474). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts 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." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Having considered defendant's contentions in light of the record and the applicable legal principles, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Our canvass of the record reveals that Judge Marino thoroughly addressed each of defendant's arguments, and that her analysis of these issues was comprehensive and correct. We discern no basis to disturb the findings and conclusions contained in Judge Marino's thoughtful written opinion.

Affirmed.