Friday, April 19, 2024
NJ DWI Law revised 2023
NJ DWI Law revised 2023
On December 22nd the Governor signed changes to the DWI law (NJSA 39:4-50) which did three pretty important things.
1.Permits plea bargaining in DWIs. Certified Municipal Court Attorneys can better help clients
2. Allows an arrested defendant to get an interlock device immediately and then get credit for it if sentenced later.
3 extended the life of the 2019 penalty revisions which were due to expire.
The bill signed was
ASSEMBLY, No. 4800
https://pub.njleg.state.nj.us/Bills/2022/A5000/4800_S2.PDF
As amended and reported by the committee, Assembly Bill No. 4800 concerns the use of ignition interlock devices (IID) for drunk driving offenses.
P.L.2019, c.248 revised certain provisions of this State’s drunk driving statutes. This legislation:
1) reduced the length of driver’s license forfeiture for convictions of drunk driving and refusing to submit to a breathalyzer and increased the period of required IID installation for these offenses;
2) required the license of a drunk driver who attests to not owning, leasing, or operating a motor vehicle to be forfeited during the required period of IID installation; 3) imposed certain IID compliance requirements to be met before an IID may be removed after the required period of installation; and 4) removed enhanced penalties for drunk driving and refusal convictions occurring in a school zone. The legislation is scheduled to expire on the first day of the fifth year after the effective date, which is January 1, 2024.
The bill extends the expiration date of P.L.2019, c.248 so that the legislation will expire on the first day of the tenth year next following the effective date of P.L.2019, c.248, which is January 1, 2029. The amended bill also clarifies that only the amendatory language and supplemental sections of P.L.2019, c.248 will expire on January 1, 2029, and the text of the statutes amended in P.L.2019, c.248 will return to the text that was in effect prior to the enactment of P.L.2019, c.248.
Under the amended bill, the amendatory language contained in this bill will also expire on January 1, 2029. The intent is for both the amendatory language and supplemental sections of P.L.2019, c.248, and the amendatory language in this bill, to expire on the same date.
In addition, the bill provides that a person who has been arrested for certain driving while intoxicated (DWI) offenses may, upon arrest and prior to any conviction, voluntarily install an IID in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, and request from the Motor Vehicle Commission (MVC) a driver’s license with a notation stating that the person is not to operate a motor vehicle unless it is equipped with an IID.
The bill provides that the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order.
The amended bill provides that a person who has been arrested for a first DWI offense whose blood alcohol concentration (BAC) was at least 0.08% but less than 0.10%, who was otherwise under the influence of intoxicating liquor, or whose BAC was 0.10% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is not to be subject to a fine as set forth under current law.
Under the bill, a person who has been arrested for a first DWI offense whose BAC was 0.15% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine. The bill provides that a person is not entitled to the credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person.
The bill further provides that a person who has been arrested for a second, third or subsequent DWI violation who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine as set forth under current law. A person is not entitled to a credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person.
Under the bill, the fine waiver for first, second, third, or subsequent offenses only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction
Under prior law, for a first DWI offense, a person whose BAC was 0.15% or higher is required to forfeit the right to operate a motor vehicle for a period of four to six months following installation of an IID and the IID is to remain installed for nine to 15 months after the period of license forfeiture. Under the amended bill, the person is required to forfeit the right to operate a motor vehicle for a period of three months following installation of an IID, and the IID is to remain installed for 12 to 15 months after the period of license forfeiture.
Further, the amended bill provides that notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement for a DWI or refusal to submit to a breathalyzer offense is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes (the State’s motor vehicle code) or offense under Title 2C of the New Jersey Statutes (the State’s criminal code). The bill further provides that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months.
Under the bill, in addition to any penalty imposed under current law, in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended.
Finally, the bill provides that nothing in the bill is to be construed to preclude the installation of an IID for a violation of Title 39 of the Revised Statutes under the appropriate factual basis.
As amended and reported by the committee, Assembly Bill No. 4800 (1R) is identical to Senate Bill No. 3011 (3R), which was also amended and reported by the committee on this date.
COMMITTEE AMENDMENTS
The committee amendments:
1) provide that when a person requests a notated license from the MVC, the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order;
2) clarify that the fine waiver for a person who voluntarily installs an IID and obtains a driver’s license with the appropriate notation only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction;
3) provide that in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended;
4) provide that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months; and
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave.,Edison, NJ 08817
(Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com
39:3-10.13. Alcohol, Controlled Substance Use Prohibited
39:3-10.13. Alcohol, Controlled Substance Use Prohibited |
Notwithstanding any other provision of law to the contrary, a person shall not operate a commercial motor vehicle in this State with an alcohol concentration of 0.04% or more, or while under the influence of a controlled substance. |
Thursday, April 04, 2024
Friday, February 23, 2024
Supreme Court removes Guideline 4. DWI plea bargain are allowed per new DWI statute effective February 23, 2024
Supreme Court removes Guideline 4. DWI plea bargain are allowed per new DWI statute effective February 23, 2024
NJ Supreme Court officially removed Guideline 4 which had prohibited plea bargaining of DWIs in the Municipal Court. The Court order is expressed as comity with the Legislature's view in the recent DWI statute amendments. This changes 40 plus years on prohibition on DWI plea bargains. The Supreme Court recognized the new plea-bargaining statute which became effective on February 19, 2024. L.2023, c. 191, §§ 2, 9.
DWIs can possibly be plea bargained as long as there's a factual basis
Monday, January 01, 2024
DWI operation inferred here
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ELIZABETH KARLINSKI,
Defendant-Appellant. _______________________
Argued October 4, 2023 – Decided October 27, 2023 Before Judges Currier and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Appeal No. MA22-001.
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.
PER CURIAM
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2836-21
Defendant Elizabeth Karlinski appeals from her conviction for driving while intoxicated (DWI). Following a trial in the municipal court, Judge Michael A. Guadagno conducted a de novo trial based on the municipal court record. Judge Guadagno issued an order and accompanying written opinion finding defendant guilty of DWI, N.J.S.A. 39:4-50. A key disputed issue was whether defendant was operating her vehicle when it crashed onto private property. In his eight-page written opinion, Judge Guadagno made independent findings of fact and adopted the municipal court judge's "inescapable" inference that defendant had been driving the vehicle. After carefully reviewing the record in light of the governing legal principles and the arguments of the parties, we affirm substantially for the reasons explained in Judge Guadagno's thorough opinion.
The record shows that on March 9, 2019, police were dispatched around 1:00 a.m. to a motor vehicle crash on the lawn of a private residence. The vehicle, a Jeep registered to defendant, had apparently driven through a T- intersection, over a curb, and crashed through a fence surrounding a garden and into shrubbery. Defendant was the only person present when police arrived. A responding officer assisted defendant out of the driver's side of the Jeep. The passenger's side door was locked and unobstructed. Defendant's blood alcohol
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content was determined to be 0.23%—nearly three times the legal limit. Defendant told police her "boyfriend" had been driving and claimed he fled the scene after the crash. However, she did not identify him by last or even first name and provided only a generic description. He was never identified by name and was never found.
Defendant raises the following contentions for our consideration:
POINT I
THE EVIDENCE PRESENTED BELOW WAS NOT SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT OPERATED THE VEHICLE.
POINT II
THE EVIDENCE PRESENTED BELOW DID NOT ESTABLISH THAT MS. KARLINSKI'S VEHICLE WAS OPERABLE.
When a defendant appeals a municipal court conviction, a Law Division judge conducts a de novo trial on the municipal court record. R. 3:23-8(a)(2). The Law Division judge must make independent findings of fact and conclusions of law but defers to the municipal court's credibility findings. State v. Robertson, 228 N.J. 138, 147 (2017); State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Kuropchak, 221 N.J. 368, 382 (2015).
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"[T]he rule of deference is more compelling where . . . two lower courts have entered concurrent judgments on purely factual issues." Locurto, 157 N.J. at 474; accord State v. Stas, 212 N.J. 37, 49 n.2 (2012). “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, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).
Furthermore, in an appeal from a de novo hearing on the record, we do not independently assess the evidence. Id. at 471. Our review of a Law Division judge's decision is limited to determining whether the findings made by the judge "'could reasonably have been reached on sufficient credible evidence present in the record.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
N.J.S.A 39:4-50(a) defines driving while intoxicated as: "[a] person who operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood. . . ." Our Supreme Court has "construe[d] the terms of N.J.S.A 39:4-50(a) flexibly, pragmatically and purposefully to effectuate the legislative goals of the drunk-driving laws." State
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v. Tischio, 107 N.J. 504, 514 (1987). Importantly for purposes of this appeal, "[o]peration [of a vehicle] may be proved by any direct or circumstantial evidence—as long as it is competent and meets the requisite standards of proof." State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005) (quoting State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992)). Operation may be proved "by observation of the defendant in or out of the vehicle under circumstances indicating that the defendant had been driving while intoxicated. . . ." Id. at 11.
As Judge Guadagno aptly noted, there is strong circumstantial evidence supporting the inference defendant drove her Jeep into the fence while intoxicated. Notably, police helped defendant out of the driver's side of the car—the passenger's side door was not obstructed. If defendant was in the passenger's seat when the vehicle crashed, she would have exited through the front passenger's door. In other words, there would have been no need for her to shift from the passenger's seat over to the driver's seat to exit the Jeep if she had been in the passenger's seat at the time of the crash.
Moreover, defendant was the only person at the scene of the crash when police arrived. Although she informed police her boyfriend was the driver, she could not provide police with his name or address. There was sufficient
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circumstantial evidence for the court to conclude defendant was the driver of the vehicle.
We add that defendant's reliance on State v. Daly, 64 N.J. 122 (1973), is misplaced. In Daly, the State failed to prove the defendant intended to move his car when he was found sleeping in his parked car in a tavern's parking lot. Id. at 124-26. The present situation is starkly different. Here, defendant was not in a parked car, asleep, and in a reclined position. Id. at 124-25. Furthermore, as Judge Guadagno stressed, "there was not a shred of evidence to support defendant's initial claim that a 'boyfriend,' who she never identified, had been driving at the time of the crash and fled the scene."
Nor are we persuaded by defendant's attempts to cast doubt on the credibility of the officer who was the only witness at the trial. Defendant asserts the testifying officer did not know "exactly when the accident" occurred, did not feel the engine to determine whether it was still warm, and did not mention in his report whether the car was still running when he arrived at the scene. Judge Guadagno reviewed the officer's dashcam recording, finding it "thoroughly corroborate[d] his testimony." Judge Guadagno concluded defendant "presented no reason why this court should not defer to the municipal court's well-supported determination that [the officer] testified credibly." We agree.
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We likewise reject defendant's contention the State failed to prove the vehicle was operable. Defendant relies on State v. DiFrancisco, 232 N.J. Super. 317 (Law Div. 1998). In DiFrancisco, the defendant was found behind the steering wheel of a truck that was stuck in a ditch, inoperable, and had to be towed from the scene. Id. at 319-20, 323. In determining the State had failed to prove drunk driving, the Law Division judge focused on the significant amount of time that might have elapsed between when the truck was last operated and when police found it in the ditch. Id. at 320, 323. The judge concluded that although the facts permitted an inference that the defendant had been driving at some prior time, there was no proof he did so while intoxicated. Id. at 323.
DiFrancisco does not preclude other courts from drawing reasonable inferences from the facts presented at trial. As we have already noted, it is well- established that operation of a vehicle while intoxicated may be proven by circumstantial evidence. See Ebert, 377 N.J. Super. at 10.
In this instance, both the municipal court judge and Judge Guadagno concluded defendant drove her car while intoxicated, which resulted in the crash and damage to her vehicle. The record amply supports the conclusion defendant's Jeep was damaged because she drove it through a T-intersection,
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over a curb, through a fence, and into shrubbery. In sum, if defendant's vehicle was inoperable when police arrived at the scene,1 it is because she crashed it into a fence. Obviously, it was operable immediately prior to the crash. We reiterate that both the municipal court judge and Judge Guadagno found the inference defendant was the driver "inescapable."
To the extent we have not addressed them, any remaining arguments raisedbydefendantlacksufficientmerittowarrantdiscussion. R.2:11-3(e)(2).
Affirmed.
1
The fact that defendant's vehicle was towed from the scene does not conclusively establish it was inoperable. N.J.S.A. 39:4-50.23(a) requires that a vehicle involved in drunk driving be impounded by the arresting law enforcement agency.
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A-2836-21
Sunday, December 31, 2023
NJ DWI Law revised 2023
NJ DWI Law revised 2023
On December 22nd the Governor signed changes to the DWI law (NJSA 39:4-50) which did three pretty important things.
1.Permits plea bargaining in DWIs. Certified Municipal Court Attorneys can better help clients
2. Allows an arrested defendant to get an interlock device immediately and then get credit for it if sentenced later.
3 extended the life of the 2019 penalty revisions which were due to expire.
The bill signed was
ASSEMBLY, No. 4800
https://pub.njleg.state.nj.us/Bills/2022/A5000/4800_S2.PDF
As amended and reported by the committee, Assembly Bill No. 4800 concerns the use of ignition interlock devices (IID) for drunk driving offenses.
P.L.2019, c.248 revised certain provisions of this State’s drunk driving statutes. This legislation:
1) reduced the length of driver’s license forfeiture for convictions of drunk driving and refusing to submit to a breathalyzer and increased the period of required IID installation for these offenses;
2) required the license of a drunk driver who attests to not owning, leasing, or operating a motor vehicle to be forfeited during the required period of IID installation; 3) imposed certain IID compliance requirements to be met before an IID may be removed after the required period of installation; and 4) removed enhanced penalties for drunk driving and refusal convictions occurring in a school zone. The legislation is scheduled to expire on the first day of the fifth year after the effective date, which is January 1, 2024.
The bill extends the expiration date of P.L.2019, c.248 so that the legislation will expire on the first day of the tenth year next following the effective date of P.L.2019, c.248, which is January 1, 2029. The amended bill also clarifies that only the amendatory language and supplemental sections of P.L.2019, c.248 will expire on January 1, 2029, and the text of the statutes amended in P.L.2019, c.248 will return to the text that was in effect prior to the enactment of P.L.2019, c.248.
Under the amended bill, the amendatory language contained in this bill will also expire on January 1, 2029. The intent is for both the amendatory language and supplemental sections of P.L.2019, c.248, and the amendatory language in this bill, to expire on the same date.
In addition, the bill provides that a person who has been arrested for certain driving while intoxicated (DWI) offenses may, upon arrest and prior to any conviction, voluntarily install an IID in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, and request from the Motor Vehicle Commission (MVC) a driver’s license with a notation stating that the person is not to operate a motor vehicle unless it is equipped with an IID.
The bill provides that the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order.
The amended bill provides that a person who has been arrested for a first DWI offense whose blood alcohol concentration (BAC) was at least 0.08% but less than 0.10%, who was otherwise under the influence of intoxicating liquor, or whose BAC was 0.10% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is not to be subject to a fine as set forth under current law.
Under the bill, a person who has been arrested for a first DWI offense whose BAC was 0.15% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine. The bill provides that a person is not entitled to the credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person.
The bill further provides that a person who has been arrested for a second, third or subsequent DWI violation who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine as set forth under current law. A person is not entitled to a credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person.
Under the bill, the fine waiver for first, second, third, or subsequent offenses only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction
Under prior law, for a first DWI offense, a person whose BAC was 0.15% or higher is required to forfeit the right to operate a motor vehicle for a period of four to six months following installation of an IID and the IID is to remain installed for nine to 15 months after the period of license forfeiture. Under the amended bill, the person is required to forfeit the right to operate a motor vehicle for a period of three months following installation of an IID, and the IID is to remain installed for 12 to 15 months after the period of license forfeiture.
Further, the amended bill provides that notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement for a DWI or refusal to submit to a breathalyzer offense is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes (the State’s motor vehicle code) or offense under Title 2C of the New Jersey Statutes (the State’s criminal code). The bill further provides that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months.
Under the bill, in addition to any penalty imposed under current law, in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended.
Finally, the bill provides that nothing in the bill is to be construed to preclude the installation of an IID for a violation of Title 39 of the Revised Statutes under the appropriate factual basis.
As amended and reported by the committee, Assembly Bill No. 4800 (1R) is identical to Senate Bill No. 3011 (3R), which was also amended and reported by the committee on this date.
COMMITTEE AMENDMENTS
The committee amendments:
1) provide that when a person requests a notated license from the MVC, the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order;
2) clarify that the fine waiver for a person who voluntarily installs an IID and obtains a driver’s license with the appropriate notation only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction;
3) provide that in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended;
4) provide that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months; and
KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW
2053 Woodbridge Ave.,Edison, NJ 08817
(Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com
Sunday, October 15, 2023
Court rejects here challenge to Dwi and refusal State v Simmons
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
KEVIN SIMMONS,
Defendant-Appellant.
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2022- 002.
PER CURIAM
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3438-21
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a trial de novo in the Law Division, defendant Kevin Simmons was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50; and refusal to submit to a chemical breath test (refusal), N.J.S.A. 39:4-50.4a.1 He was sentenced to pay appropriate fines, costs, and penalties. Defendant now appeals from the June 3, 2022 order, contending the State did not meet its burden of proving the violations and seemingly challenges the municipal court's credibility findings. Discerning no evidentiary errors or grounds to reject the Law Division's decision, we affirm.
I.
The trial de novo was conducted on a review of the municipal court record.
R. 3:28-8(a). The municipal court trial was held on October 18, 2021 and December 22, 2021. The State's case was presented through the testimony of the arresting officer, New Jersey State Police (NJSP) Trooper Israel Dela Rosa- Vargas (Dela Rosa). Defendant elected not to testify but called two witnesses on his behalf: Joseph M. Tafuni, of Pinnacle DWI Consulting Group, who was qualified as an expert in Alcotest machines and field sobriety testing; and defendant's friend, Hazima Robinson.
1 The municipal court dismissed a third summons, parking in a no-parking zone, N.J.S.A. 39:4-138(g), for lack of prosecution.
2
A-3438-21
Around 1:26 a.m. on March 9, 2020, Dela Rosa was dispatched to milepost 152 along the northbound lanes of the Garden State Parkway (GSP) in response to a reported medical emergency. Upon his arrival, Dela Rosa observed a car on the grass off the shoulder. The driver's side door was open. Defendant was "sleeping and snoring" behind the wheel. When he approached the car, Dela Rosa detected an odor of alcohol emanating from inside the vehicle. He did not recall whether the engine was running, or whether the keys were in the ignition. There were no other occupants in the car.
Dela Rosa awakened defendant and requested his credentials. Defendant was "alert and oriented" but he was mumbling and slurring his speech, rendering him "incoherent." Defendant claimed he was not involved in an accident. He told Dela Rosa he pulled over to the side of the road and was awaiting a ride. Dela Rosa then asked defendant to exit the vehicle and submit to standard field sobriety testing. Because defendant "had difficulty standing and walking," Dela Rosa "assisted [him] out of the vehicle."
Defendant failed the horizontal gaze nystagmus (HGN) test. Dela Rosa explained that before issuing the test, he permitted defendant to sit on the hood of his car because he had difficulty standing. Defendant was unable to follow
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Dela Rosa's repeated instructions "to keep his head straight" and could not track an object with his eyes. Defendant's eyes were "bloodshot and watery."
Dela Rosa arrested defendant "for suspicion of DWI" based on: his slurred and incoherent speech; "slow movement of hands"; "failure to follow instructions"; "inability to stand or walk without assistance"; "bloodshot and watery eyes"; the odor of alcohol emanating from the car and defendant's breath; and the "off-the-road" location of defendant's car. Dela Rosa advised defendant of his Miranda2 rights and drove him to the Bloomfield barracks. While in transit, Dela Rosa noticed an odor of alcohol in his patrol car "that was not previously present."
At the station, defendant was asked to perform the walk-and-turn and one- legged-stand balance tests. In view of "defendant's level of intoxication and [the] unsafe nature of the highway on the weekend," Dela Rosa had not asked defendant to perform these tests on the side of the GSP. Defendant failed both tests.
Dela Rosa again advised defendant of his Miranda rights. Defendant did not respond to each question posed and refused to sign the Miranda form. Dela Rosa then asked defendant additional questions pursuant to the standard operator
2 Miranda v. Arizona, 384 U.S. 436 (1966). 4
A-3438-21
questionnaire. Defendant responded that he had diabetes, but denied that he was sick, under a doctor's care, or taking medicine, including insulin. Defendant acknowledged that he had consumed "six to eight beers." He refused to answer any other questions but agreed to give a breath sample.
Dela Rosa testified that he personally placed defendant under "continuous and uninterrupted" observation for the requisite twenty minutes before administering the initial Alcotest. Defendant failed to provide a sufficient volume of breath to obtain a reading. Two more tests were attempted, but defendant provided insufficient breath samples each time. Defendant "did not look like he was . . . trying to provide a good sample." After the third test, Dela Rosa concluded defendant refused to provide a sample. Defendant was issued summonses and released when his ride arrived.
A retired NJSP breath test coordinator, Tafuni challenged the reliability of the field sobriety tests and doubted Dela Rosa's testimony that he had observed defendant for twenty minutes prior to conducting the first Alcotest. Tafuni testified that the HGN test was unreliable because Dela Rosa only checked for one indicator, "smooth pursuit," and did not check for resting nystagmus, meaning whether "the eyes [are] moving as you're staring at them." Nor did he check for a third indicator, whether "the eyes [are] able to track
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equally." Tafuni opined that the balance tests performed at the station were unreliable because defendant was "more than sixty pounds overweight." He also concluded, based on information set forth in an NJSP database, that Dela Rosa performed a "control solution change" at 2:05 a.m. on the night of the incident and, as such, the trooper could not have observed defendant continuously in the twenty minutes preceding administration of the Alcotest.
Robinson testified that she knew defendant for ten years. About two hours before Dela Rosa was dispatched to the scene, defendant called Robinson and requested a ride home. According to Robinson, defendant said "he was tired . . . and had pulled over." She further testified that defendant was a truck driver and had been driving for "forty-eight, fifty hours."
Following Robinson's testimony, the court questioned Tafuni concerning the timing of the solution change. The State recalled Dela Rosa in rebuttal. Dela Rosa testified that he did not change the solution while observing defendant prior to administering the Alcotest. Defendant then recalled Tafuni who stood by his testimony and stated that "the foundational document" would clarify the issue.
On the second day of trial, the State recalled Dela Rosa. Referencing the "solution change document" moved into evidence as S-21, Dela Rosa said he
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initiated the solution change at approximately 1:08 a.m. – before he was dispatched to the scene. Further, once the process is initiated, the machine completes the solution change on its own. Dela Rosa explained that the timestamp from the database reflected the time the solution change was completed.
During oral argument before the municipal court, defendant challenged Dela Rosa's credibility and the trooper's multiple requests to review his report to refresh his recollection. He therefore contended the State failed to prove the DWI and refusal charges. Following argument, the court reserved decision.
On January 24, 2022, the municipal court rendered a thorough oral decision, detailing its factual and credibility findings in view of the governing law, and found defendant guilty of DWI and refusal. Crediting Dela Rosa's testimony, the court found, "based upon the totality of circumstances at the scene on the [GSP]," which included defendant's "demeanor and physical condition," and Dela Rosa's observations, "there was sufficient probable cause to arrest defendant," whose physical condition "was subsequently corroborated by [his] performance on the field sobriety tests at the police station." The court was not persuaded that defendant called Robinson for a ride before the trooper arrived
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at the scene. Nor was the court convinced there were any flaws in the administration of the Alcotests.
On the same date, the court sentenced defendant to the minimum fines and penalties for both offenses. Because defendant's driver history abstract reflected a prior DWI conviction, the court sentenced defendant as a second-time offender on the DWI violation. The court stayed imposition of sentence pending receipt of documentation that defendant's prior conviction had been vacated.
In his ensuing appeal to the Law Division, defendant maintained the State failed to prove the DWI and refusal charges. Oral argument was held before Judge Christopher S. Romanyshyn on May 25, 2022. Defendant argued there was insufficient proof that he had operated the car while intoxicated because he: was not observed driving his car; was asleep for an indeterminate time when Dela Rosa arrived at the scene; and had called Robinson to pick him up. Citing Tafuni's testimony, defendant also challenged Dela Rosa's conclusion that defendant refused to submit to the Alcotest. After oral argument, the judge reserved decision.
On June 3, 2022, Judge Romanyshyn issued a comprehensive written opinion, rejecting defendant's contentions. The judge conducted a thorough
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review of the evidence presented to the municipal court and made independent factual findings and legal conclusions in view of the controlling law.
Regarding the DWI charge, Judge Romanyshyn found the "direct and circumstantial evidence" adduced in this case "demonstrate[d] both that . . . defendant was under the influence of alcohol and 'operating' a vehicle within the DWI statute." Recognizing Dela Rosa "might not have been able to recall minute details with particularity," the judge found the trooper "provided a sufficiently complete and vivid account of defendant's behavior and performance during the tests and at the scene."
Recounting "the strong circumstantial evidence" that defendant "recently drove the car," the judge rejected his contention that the State failed to prove operation within the meaning of the DWI statute. In doing so, the judge rejected defendant's reliance on State v. Daly, 54 N.J. 122 (1973). The judge elaborated:
Unlike Daly, where [the] defendant was found asleep in his car outside a tavern, with the engine running, in this case defendant was found on the shoulder of the [GSP], which is a limited access roadway. That circumstance alone, without any admission by defendant, is sufficient to infer operation. As the municipal judge observed, defendant had to get there somehow and there was no evidence of any other operator or passenger. The driver door was open, and . . . defendant was sitting in the driver seat, asleep and snoring.
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The judge further found defendant was "the sole occupant of that vehicle," and admitted "he 'pulled over' and had consumed 'a couple of beers.'"
Turning to the refusal charge, Judge Romanyshyn found unavailing defendant's argument that he was not afforded additional attempts to complete the breathalyzer test. The judge reasoned:
[Defendant] was not entitled to additional attempts after the officer gave him three attempts at the test. Once the officer determined that the defendant was refusing to comply with the test by failing to give an adequate breath sample – both in terms of quantity (all attempts) and duration (second attempt only) – absent other reasons there was enough evidence to charge him with refusal.
Citing our decision in State v. Monaco, 444 N.J. Super. 539, 551 (App. Div. 2016), the judge found: "Defendant asserted no other reason he could not provide adequate breath samples."
Nor was the judge persuaded that Dela Rosa lied about the timing of the solution change. Meticulously citing the trial record, Judge Romanyshyn credited Dela Rosa's testimony, which the judge found was corroborated by S- 21.
Regarding defendant's sentence, the judge was satisfied that defendant's prior DWI conviction "was vacated on post-conviction relief." Accordingly, defendant was sentenced as a first-time offender to forfeiture of his driver's
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license until an ignition interlock device was installed, twelve hours at an Intoxicated Driver Resource Center, and appropriate fines and penalties. This appeal followed.
Citing the transcript of the municipal court's decision, defendant raises the following points for our consideration:
POINT [I]
THE COURT BELOW IMPROPERLY FOUND THE ST A TE'S ONL Y WITNESS CREDIBLE DESPITE
INCONSISTENT AND TESTIMONY .
POINT [II]
CONTRADICTORY
THE STATE DID NOT PROVE THE DEFENDANT VIOLATED EITHER N.J.S.A 39:4-50 OR N.J.S.A. 39:4-[5]0.4A BEYOND A REASONABLE DOUBT.
II.
Well-settled principles guide our review. On appeal from a municipal
courttotheLawDivision,thereviewisdenovoontherecord. R.3:23-8(a)(2). The Law Division judge must make independent "findings of fact and conclusions of law but defers to the municipal court's credibility findings." State v. Robertson, 228 N.J. 138, 147 (2017). This deference is especially appropriate when a municipal court's "credibility findings . . . are . . . influenced by matters such as observations of the character and demeanor of witnesses and common
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human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Kuropchak, 221 N.J. 368, 382 (2015). Indeed, the municipal court has the unique opportunity to assess live testimony. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
Unlike the Law Division, however, we do not independently assess the evidence. Locurto, 157 N.J. at 471. In an appeal from a de novo hearing on the record, we consider only the action of the Law Division and not that of the municipal court. State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). Our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge "could reasonably have been reached on sufficient credible evidence present in the record." Locurto, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
The rule of deference is more compelling where, as here, the municipal and Law Division judges made concurrent findings. Id. at 474. We accord great deference to the consistent conclusions of two other courts. State v. Stas, 212 N.J. 37, 49 n.2 (2012). "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, 157 N.J. at 474.
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Having considered defendant's contentions in view of the applicable law, and our deferential standards of review, we conclude they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by Judge Romanyshyn in his well-reasoned decision. We add only the following remarks.
As a preliminary matter, it appears defendant challenges the municipal court's credibility findings, which are not before us on this appeal. See Oliveri, 336 N.J. Super. at 251. To the extent defendant challenges the Law Division judge's findings, we are not persuaded. Because Judge Romanyshyn's factual and credibility findings were supported by "sufficient credible evidence present in the record," we discern no reason to disturb his cogent decision. See Locurto, 157 N.J. at 472 (quoting Barone, 147 N.J. at 615).
Affirmed.
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