STATEOF NEW JERSEY v. RONALD HORTON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0204-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RONALD HORTON,

     Defendant-Appellant.
____________________________

              Argued January 30, 2018 – Decided February 23, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Municipal
              Appeal No. 13-16-J.

              Ronald Horton, appellant, argued the cause pro
              se.

              Alexander Mech, Assistant Prosecutor, argued
              the   cause  for   respondent  (Michael   H.
              Robertson,   Somerset   County   Prosecutor,
              attorney; Alexander Mech, of counsel and on
              the brief).

PER CURIAM

        Defendant Ronald Horton appeals from his conviction by the

Law Division for driving while intoxicated (DWI), 
N.J.S.A. 39:4-
50, and refusal to take a breath test, 
N.J.S.A. 39:4-50.4a.                His

appellate      brief   presents     the     following    points   for      our

consideration:

            I. MOTION TO SUPPRESS THE ARREST DUE TO
            UNREASONABLE SEIZURE AND EVIDENCE OBTAINED
            WITHOUT "MIRANDA WARNING"

            II. MOTION TO OVERTURN THE MUNICIPAL COURT'S
            "DWI" DECISION BECAUSE THE STATE DID NOT
            ESTABLISH THAT DEFENDANT HAD A BAC OF 0.08 AND
            COURT DID NOT [FIND] "PROOF BEYOND A
            REASONABLE DOUBT"

            III. MOTION TO OVERTURN THE MUNICIPAL COURT'S
            "DWI REFUSAL" DECISION

     After reviewing the record presented to us, we find no merit

in any of the arguments raised in those three points.             Except as

addressed below, they do not warrant discussion here.                 See R.

2:11-3(e)(2).     We affirm the conviction.       However, we remand for

the limited purpose of correcting a typographical error in the

August   10,    2016   order    memorializing    the    conviction,     which

mistakenly cites the refusal statute as 
N.J.S.A. 39:4-50.2 instead

of 
N.J.S.A. 39:4-50.4a.        See State v. Cummings, 
184 N.J. 84, 90

n.1 (2005).

     A brief summary of the procedural background and the evidence

will suffice.      The municipal court proceedings began with an

extensive hearing on defendant's suppression motion.              The State

presented    testimony   from     Officer    Patrick    Clyne.    Defendant


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presented his own testimony plus that of Herbert Leckie, an expert

on field sobriety testing methods, and Dr. Lance Gooberman, an

expert on the physiological effects of alcohol and the effects of

injury on the ability to perform field sobriety tests.

     According to Officer Clyne, he was dispatched to the scene

of a one-car accident, where he found defendant leaning on the

hood of his car.     Defendant told Officer Clyne that he was "fine,"

and had just taken the turn in the road too fast.              According to

Clyne,   defendant    displayed    some     of   the    typical    signs     of

intoxication: he smelled of alcohol, and had watery eyes and

slurred speech. He also admitted that he had been drinking. Clyne

administered three field sobriety tests – the horizontal gaze

nystagmus (HGN) test, the walk and turn test, and the one-leg

stand test – all of which defendant failed.             At that point, he

arrested defendant.       These events were recorded by the motor

vehicle recorder (MVR) in the police cruiser.1

     Leckie   testified    that   Officer    Clyne     did   not   adequately

question defendant about his possible medical conditions before

administering the field sobriety tests.          He also opined that Clyne

was not qualified to administer the HGN test, and did not reach

reliable conclusions about defendant's performance on any of the


1
  A DVD of the MVR recording was later admitted in evidence during
the trial, without objection.

                                    3                                 A-0204-16T2
tests.     He also disagreed with some of the officer's observations

of defendant's condition, based on viewing the MVR video.

      Dr. Gooberman opined that defendant's lower back problems

would have affected his ability to perform the walk and turn test

and the one-leg stand test.          He also opined that a concussion

would affect defendant's ability to knowingly decline to take the

breath test.     Gooberman also testified that there was insufficient

evidence on which to conclude that defendant was intoxicated.                    He

admitted, however, that he had not watched the MVR video.

      Defendant testified that prior to the accident, he had two

alcoholic drinks with dinner at a local restaurant.               He testified

that he hit his head during the accident and injured his ankle

while getting out of his car.         He also testified that prior back

surgeries left him with physical limitations that affected his

mobility.     He disagreed with Clyne's testimony about his physical

appearance and demeanor at the scene.

      In    denying   the   suppression     motion,    the    municipal     judge

discounted the HGN test, because Clyne was not certified to perform

it.        However,   the   judge   found    that     the    officer   properly

administered the other two tests.            The municipal judge did not

find defendant's experts persuasive, and found Officer Clyne's

testimony more credible than defendant's testimony.



                                      4                                   A-0204-16T2
     After the municipal judge denied the motion, the trial began.

The prosecutor told the judge that, to avoid repetition, the

defense had stipulated that the court could incorporate into the

trial record Officer Clyne's testimony at the suppression hearing.

Defense counsel did not disagree.

     In brief additional trial testimony, the officer recalled

that he smelled alcohol when defendant was in his police cruiser,

and that when they arrived at the police station, defendant's face

was flushed and his eyes were droopy and watery.            Officer Clyne

and Officer Frizziola both testified that defendant refused to

take the Alcotest, after being read the standard warning statement

about the consequences of refusing to take the test.

     After consulting with his attorney, defendant decided not to

testify   at   the   trial.   The   defense   did   not   call   any     other

witnesses.     During his closing argument, defense counsel stated

in passing that he "moved" to incorporate the testimony of his

experts into his trial evidence.         The municipal judge did not

address that "motion."

     In deciding the case, the municipal judge found that defendant

unequivocally refused to take the Alcotest.         After viewing the MVR

video, the judge also found that the State proved defendant's

intoxication while driving, based on Officer Clyne's observations,



                                    5                                  A-0204-16T2
defendant's   admission    that   he       was   drinking,   and   defendant's

failing the walk and turn and one-leg stand tests.

     After considering the municipal court record de novo, the Law

Division judge issued a written opinion dated August 10, 2016,

rejecting defendant's suppression issues and convicting him of

refusal and DWI.    The Law Division judge concluded that Officer

Clyne had "a reasonable suspicion that defendant might be guilty

of DWI and . . . was justified in requesting that . . . defendant

perform standard field sobriety tests."              The Law Division judge

credited testimony that defendant smelled of alcohol, admitted

that he had been drinking, had glassy eyes and slurred speech, and

had "slow and fumbling" movements.                The judge also credited

testimony that defendant failed two properly administered field

sobriety tests.    Thus, he concluded that there was probable cause

to arrest defendant.

     Based on the testimony of the police officers, and the MVR

video, the Law Division judge found defendant guilty of refusal

and guilty of DWI.        The judge reasoned that, because defense

counsel did not call any witnesses prior to making his closing

argument, the testimony of the defense experts was not incorporated

by reference into the trial.       However, the judge also concluded

that even if he considered the expert testimony, it would not

change his decision.

                                       6                               A-0204-16T2
      On this appeal, defendant argues, among other things, that

Officer     Clyne    improperly    interrogated    him     without     first

administering Miranda2 warnings, the State did not establish beyond

a reasonable doubt that he had a blood alcohol content (BAC) of

at least 0.08, and the summons issued to him for refusal was

defective.

      On this appeal, it is not our role to make new factual

findings.     Rather, we determine whether the Law Division judge's

decision is supported by sufficient credible evidence.            See State

v. Locurto, 
157 N.J. 463, 470-71 (1999).                We owe particular

deference where, as here, both the municipal judge and the Law

Division     judge   have   made   essentially    the    same   credibility

determinations.      Id. at 474.    We conclude that the Law Division

judge's factual findings are supported by sufficient credible

evidence.    Based on those findings, there is no reason to disturb

defendant's conviction for breath test refusal and DWI.

      Contrary to defendant's assertion, "a DWI suspect is not

entitled to Miranda warnings prior to administration of field

sobriety tests."     State v. Ebert, 
377 N.J. Super. 1, 9 (App. Div.

2005) (citing State v. Green, 
209 N.J. Super. 347, 350 (App. Div.

1986); State v. Weber, 
220 N.J. Super. 420, 424 (App. Div. 1987)).



2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                     7                               A-0204-16T2
Nor are the police required to administer Miranda warnings before

conducting general questioning of a driver during a roadside

traffic stop.      Green, 
209 N.J. Super. at 350.

       The State was not required to prove defendant's BAC in this

case, where defendant refused the Alcotest.                     Rather, the State

properly proved that defendant was driving while intoxicated,

based on the officer's observations, defendant's admission that

he had been drinking, and defendant's failing the field sobriety

tests.   See State v. Cryan, 
363 N.J. Super. 442, 455-56 (App. Div.

2003); see also State v. Bealor, 
187 N.J. 574, 585 (2006).

       Defendant       did    not    question    the    validity     of    the    summons

charging him with refusal, either before the municipal court or

the Law Division.            We decline to address the issue for the first

time on appeal.         See State v. Robinson, 
200 N.J. 1, 19-20 (2009).

However, we note that a summons is not to be dismissed "because

of any technical insufficiency or irregularity."                          R. 7:2-5; see

State v. Fisher, 
180 N.J. 462, 469-70 (2004).

       As previously noted, we affirm the conviction.                        We remand

this   matter     to    the    Law    Division    for    the   limited      purpose      of

correcting a typographical error in the August 10, 2016 order.

       Affirmed    in    part,       remanded    in    part.    We    do    not    retain

jurisdiction.



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