STATE OF NEW JERSEY v. KATHLEEN R. BELKO

NOT FOR PUBLICATION WITHOUT THE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-4962-15T1
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KATHLEEN R. BELKO,

     Defendant-Appellant.
___________________________

              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
              brief).

PER CURIAM

        Defendant Kathleen R. Belko appeals from her conviction,

following a trial de novo in the Law Division, of driving while
intoxicated (DWI), 
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.

                                   I.

     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.



                                    2                             A-4962-15T1
     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.

                                     3                              A-4962-15T1
      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




1
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                 4                          A-4962-15T1
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

issues.

       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

                                         5                              A-4962-15T1
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

driving, 
N.J.S.A. 39:4-96.

     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.

                                  6                             A-4962-15T1
     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

                                     7                               A-4962-15T1
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

appeal followed.

     On appeal, defendant makes the following arguments:

          I.   Defendant cannot be convicted of refusal
          based on State v. Chun and driving under the

2
   The reckless driving charge was merged by the municipal court
with defendant's DWI conviction.

                                  8                          A-4962-15T1
           influence   as  Defendant          has   established
           reasonable doubt.

           II. An adverse inference must be drawn
           against the State for its failure to preserve
           and produce a video of the Defendant[] at the
           police station.

                                  II.

     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

Manalapan, 
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.

                                      9                             A-4962-15T1
       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, 
157 N.J.
 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

intoxicated.

       Moreover, the credible evidence supports the court's finding

defendant operated her vehicle while intoxicated.                See Clarksburg

Inn, 
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'

                                        10                               A-4962-15T1
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.

Federico, 
414 N.J. Super. 321, 327 (App. Div. 2010); State v.

Liberatore, 
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

reasonable doubt.

      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

                                      11                                  A-4962-15T1
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



                                12                          A-4962-15T1
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

officer's instructions.

     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.

Gordon, 
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.

     Affirmed.




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