NOT FOR PUBLICATION WITHOUT THE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-4962-15T1
STATE OF NEW JERSEY,
KATHLEEN R. BELKO,
Argued January 16, 2018 – Decided February 8, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Municipal
Appeal No. 42-12-15.
Michael P. Albano argued the cause for
appellant (Albano & Viola, LLC, attorneys;
Michael P. Albano, on the briefs).
Gretchen A. Pickering, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert W. Johnson,
Acting Cape May County Prosecutor, attorney;
Gretchen A. Pickering, of counsel and on the
Defendant Kathleen R. Belko appeals from her conviction,
following a trial de novo in the Law Division, of driving while
N.J.S.A. 39:4-50(a), and refusal to submit to
a chemical breath test (refusal),
N.J.S.A. 39:4-50.4. Based on
our review of the arguments advanced on appeal in light of the
record and applicable law, we affirm.
On a rainy evening in January 2015, off-duty Wildwood police
sergeant Matthew Sicilia observed a vehicle traveling at
approximately five miles below the speed limit drift to the left,
nearly hitting parked cars three separate times. Sicilia saw the
vehicle make a wide left turn at an intersection, mount the curb
and strike a road sign, bending the sign post and causing the sign
to dislodge from the post. Sicilia called the Wildwood Police
Department, reported what he saw and waited for patrol officers
to arrive. Sicilia saw the vehicle's driver, later identified as
defendant, exit the vehicle, appear to assess the damage and get
back into the vehicle.
Wildwood police officer David Holman responded to the scene.
Sicilia told Holman what he saw, and then left. Holman approached
defendant, who was still in the vehicle's driver's seat, and asked
for her license and registration. Defendant asked Holman why he
stopped her, and he explained she had been involved in an accident.
Holman testified defendant appeared confused.
When Holman asked defendant for her vehicle documents, she
emptied the contents of her purse on her lap, but Holman observed
her driver's license in her hand. Holman did not immediately
detect the odor of alcohol, and asked defendant if she had any
medical issues. Defendant denied any medical issues, but Holman
called for a rescue team because defendant appeared disoriented.
While waiting for the rescue team's arrival, Holman asked defendant
to exit the vehicle.
Holman observed defendant appear to lean on the vehicle for
balance when she exited. He asked defendant if she had been
drinking, and she admitted having one glass of wine at a local
restaurant. Holman administered a Horizontal Gaze Nystagmus Test
(HGN), and observed an "involuntary jerking" of defendant's eyes
that indicated alcohol impairment.
While the rescue team assessed defendant, Holman detected an
odor of alcohol emanating from defendant's breath. The rescue
team determined defendant's vital signs were normal, and defendant
denied the need for medical treatment.
Because of the weather conditions, and with defendant's
consent, Holman transported defendant to the police station to
perform field sobriety tests. Once at the station, Holman set up
a DVD recorder to record the tests. He testified he later
discovered no recording was made due to an equipment malfunction.
Holman administered two field sobriety tests: a walk-and-turn
and a one-leg stand. He instructed defendant how to perform the
tests, and demonstrated each. During the walk-and-turn, defendant
was unable to stand heel-to-toe or walk in a line taped to the
floor, and leaned on a wall for balance. Defendant failed to
complete the one-leg stand test, dropping her foot several times
before giving up.
Holman arrested defendant for DWI and explained her Miranda1
rights. In response to Holman's questions, defendant denied being
sick but said she had an injury to her right hip. According to
Holman, defendant, who was sixty-one years old, did not appear to
suffer from any shortness of breath, wheezing, coughing, or any
other difficulty breathing.
Defendant agreed to give a breath sample. Holman instructed
defendant concerning the breath test, and directed that she must
seal her lips around the mouthpiece when providing the sample.
Defendant said she understood the instructions, and attempted the
test four times.
For the first sample, defendant blew into the machine for
less than half of a second and stopped. The Alcotest registered
Miranda v. Arizona,
384 U.S. 436 (1966).
no airflow. Holman observed that defendant did not appear to be
out of breath or to have any trouble breathing, and did not wheeze.
Holman changed the mouthpiece and again instructed defendant
on the test procedure. Defendant began blowing into the mouthpiece
but, contrary to Holman's instructions, lifted her lips from the
mouthpiece, permitting air to escape from her mouth without going
into the mouthpiece. Holman advised defendant she was not
providing a good sample and defendant, for the first time, claimed
she had asthma. Holman testified defendant was not short of
breath, did not wheeze, and showed no signs of any breathing
Undeterred, Holman replaced the mouthpiece and again
instructed defendant about the test. Defendant did not seal her
lips around the mouthpiece during the third test and did not
provide any airflow into the device.
Prior to the fourth attempt, Holman again instructed
defendant concerning the test and reiterated that she was required
to keep her lips sealed around the mouthpiece. Holman told
defendant that if she failed to provide a breath sample, she would
be charged with refusal.
Defendant began providing a breath sample in accordance with
the instructions, but when Holman told defendant she was providing
a good sample, she took her lips off of the mouthpiece and stopped
blowing. Again, Holman did not observe that defendant was short
of breath or exhibited any breathing issues. Holman terminated
the test, and charged defendant with DWI, refusal and reckless
Defendant testified that prior to the accident and her arrest,
she met a friend at a bar and had a shot of tequila with club
soda. She then went to a local restaurant for dinner and had a
glass of wine before dinner. She recalled the bartender poured a
second glass of wine because she wanted to drink wine with her
dinner. Defendant testified she did not recall drinking the second
glass of wine, eating her dinner or what occurred during the
approximately two-and-one-half hours she was at the restaurant
before leaving in her car. She recalled, however, having two sips
of a liqueur after dinner, paying the bill and having difficulty
calculating the tip, and slurring her speech.
Defendant did not recall leaving the restaurant, but
remembered being approached by Holman after the accident. Asked
to address her performance on the chemical breath test, defendant
testified she had never seen the test before and "wasn't sure what
exactly [she] should be doing."
Defendant's husband, Carl Johnson, testified defendant called
him after dinner, and spoke "like a little baby." He was unable
to understand what she said.
Defendant called DWI expert John Flanagan. He opined that
under the guidelines established in State v. Chun,
194 N.J. 54
(2008), "women over the age of [sixty] need only to provide 1.2
liters of breath versus 1.5 liters of breath." He testified the
Alcotest machine used by Holman had outdated firmware, which did
not automatically adjust from 1.5 liters of air to 1.2 liters of
air after an officer inputs the suspect's age. Flanagan also
testified defendant was 130 pounds overweight, which would
"severely impact her ability to perform the field sobriety test."
In a detailed oral opinion, the Law Division judge found
defendant's testimony was not credible. The court determined
Sicilia and Holman were credible witnesses and accepted their
version of the facts. The court found defendant guilty of DWI
based on the officers' observations of defendant's erratic
operation of her vehicle resulting in an accident, her difficulty
in retrieving the vehicle credentials, her leaning on the vehicle
for support after exiting the vehicle, the odor of alcohol from
her breath, defendant's failure to correctly perform the field
sobriety tests and her admission to consuming alcoholic beverages
prior to operating her vehicle.
The court also found defendant guilty of refusal. The court
determined defendant "purposely attempted and did circumvent the
test by providing no samples, by manipulating her mouth to prevent
air from going into the machine." The court rejected as not
credible defendant's testimony she did not understand how to
provide the sample, and that she suffered from breathing difficulty
and from asthma. The court noted there was no medical evidence
defendant suffered from asthma, and accepted as credible Holman's
testimony that defendant never exhibited any signs of shortness
of breath or wheezing during the administration of the chemical
breath test. The judge accepted Holman's testimony that defendant
failed to provide an adequate sample by letting air flow outside
of the mouthpiece and, in the fourth test, by simply choosing to
stop blowing. Relying on Holman's testimony about the equipment
malfunction, the court rejected defendant's request for an adverse
interest against the State because it did not provide a recording
of defendant's performance of the tests at the police station.
The court sentenced defendant as a first-time DWI offender
to a three-month loss of driving privileges, and to a concurrent
seven-month loss of driving privileges for refusal.2 The court
imposed the requisite fines and other mandatory penalties. This
On appeal, defendant makes the following arguments:
I. Defendant cannot be convicted of refusal
based on State v. Chun and driving under the
The reckless driving charge was merged by the municipal court
with defendant's DWI conviction.
influence as Defendant has established
II. An adverse inference must be drawn
against the State for its failure to preserve
and produce a video of the Defendant at the
We review the Law Division's decision following a trial de
novo on appeal from a municipal court by employing the "substantial
evidence rule." State v. Heine,
424 N.J. Super. 48, 58 (App. Div.
2012). "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."
State v. Clarksburg Inn,
375 N.J. Super. 624, 639 (App. Div. 2005).
We review the Law Division's interpretation of the law de novo
without according any special deference to the court's
interpretation of "the legal consequences that flow from
established facts." Manalapan Realty, L.P. v. Twp. Comm. of
140 N.J. 366, 378 (1995).
Defendant first argues the court erred by finding her guilty
of DWI. She claims the proofs were inadequate to support her
conviction because she did not drink enough alcohol to become
intoxicated, the accident may have caused her to become disoriented
and confused, and her age and physical limitations caused her poor
performance on the field sobriety tests.
Defendant's argument is founded on her testimony, which the
municipal court and Law Division rejected as not credible. We
defer to the judge's credibility determinations and where, as
here, the municipal court and Law Division found defendant's
testimony was not credible, we "ordinarily should not undertake
to alter concurrent findings of fact and credibility
determinations made by [the] two lower courts absent a very obvious
and exceptional showing of error." State v. Locurto,
463, 474 (1999) (citations omitted). Defendant has not
demonstrated any error in the Law Division's credibility
determinations. Thus, we defer to the court's finding that
defendant's testimony was not credible, and reject her contention
her testimony created a reasonable doubt that she drove while
Moreover, the credible evidence supports the court's finding
defendant operated her vehicle while intoxicated. See Clarksburg
375 N.J. Super. at 639. The State may satisfy its burden of
proving a DWI charge "through either of two alternative evidential
methods: proof of defendant's physical condition or proof of a
defendant's blood alcohol level." State v. Howard,
383 N.J. Super.
538, 548 (2006) (quoting State v. Kashi,
360 N.J. Super. 538, 545
(App. Div. 2003), aff'd,
180 N.J. 45 (2004)). Lacking proof of
defendant's blood alcohol level, the State relied on the officers'
testimony concerning defendant's physical condition to satisfy its
burden at trial.
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); accord State v.
414 N.J. Super. 321, 327 (App. Div. 2010); State v.
293 N.J. Super. 580, 589 (Law Div.), aff'd o.b.,
293 N.J. Super. 535 (App. Div. 1996). Here, the credible evidence
showed defendant erratically operated her car and caused an
accident, was confused, smelled of alcohol, admitted drinking
three different alcoholic beverages and failed two field sobriety
tests. There was sufficient credible evidence supporting the
court's determination defendant was guilty of DWI beyond a
Defendant next claims the court erred by finding her guilty
of refusal. She contends that because she was overweight, had
trouble breathing, and was confused and disoriented after being
involved in a single-car accident, there was a "reasonable doubt
as to whether she was capable of blowing into the Alco[test]
machine . . . ." Defendant had the burden of proving her purported
physical limitations prevented her from completing the chemical
breath test. See State v. Monaco,
444 N.J. Super. 539, 551 (App.
Div.), certif. denied,
228 N.J. 409 (2016). As the court correctly
determined, however, defendant did not sustain her burden because
her testimony was not credible, and she did not present any medical
evidence showing she had any physical limitations preventing her
from completing the test.
Defendant further asserts that because she was over sixty-
years of age, her failure to provide a sufficient breath sample
did not support her refusal conviction under the order entered by
the Court in State v. Chun,
215 N.J. 489, 492 (2013). In Chun,
194 N.J. at 97-100, the Court found that women over the age of
sixty have a reduced ability to generate the 1.5 liters of air
volume the Alcotest device required to obtain an accurate blood
alcohol reading. The Court directed that an Alcohol Influence
Report (AIR) showing an inadequate breath sample for a woman over
sixty is not "admissible as evidence in a prosecution for refusal
. . . unless the woman also provided another breath sample of at
least 1.5 liters." Id. at 151.
Defendant relies on the Court's subsequent order in Chun,
215 N.J. at 492, which further provided that "for women over the age
of 60 in prosecutions for refusal . . . if the only evidence of
refusal is the inadmissible AIR, such women may not be charged
with, prosecuted for, or convicted of that offense." Defendant
contends the order barred her conviction for refusal here.
In this case, the AIR was not "the only evidence" defendant
committed the offense. To the contrary, the court found defendant
purposely circumvented the test by refusing to maintain a seal
around the mouthpiece with her lips and choosing to stop blowing
into the mouthpiece. The orders in Chun do not bar refusal
prosecutions against women who are over sixty, or excuse a sixty-
one-year-old defendant's repeated failure to comply with an
Defendant last argues the court erred by failing to draw an
adverse inference against the State based on its failure to record
her performance of the tests at the police station. We find
insufficient merit in the argument to warrant discussion in a
written opinion. R. 2:11-3(e)(2). The police were not obligated
to record defendant's performance of the tests, see State v.
261 N.J. Super. 462, 464-65 (App. Div. 1993), and although
Holman unsuccessfully attempted to do so, the failure to make the
recording was solely the result of an equipment failure.