NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-0204-16T2
STATE OF NEW JERSEY,
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
Alexander Mech, Assistant Prosecutor, argued
the cause for respondent (Michael H.
Robertson, Somerset County Prosecutor,
attorney; Alexander Mech, of counsel and on
Defendant Ronald Horton appeals from his conviction by the
Law Division for driving while intoxicated (DWI),
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
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
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
N.J.S.A. 39:4-50.4a. See State v. Cummings,
184 N.J. 84, 90
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
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
A DVD of the MVR recording was later admitted in evidence during
the trial, without objection.
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.
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,
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.
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
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
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)).
Miranda v. Arizona,
384 U.S. 436 (1966).
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