Opinion
DOCKET NO. A-3999-12T2
02-03-2014
STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. DANIEL BELL, Defendant-Respondent/Cross-Appellant.
Paula Jordao, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief). Joseph P. Rem, Jr., argued the cause for respondent (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel and on the brief; Tamra Katcher, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-031.
Paula Jordao, Special Deputy Attorney General/Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Ms. Jordao, on the brief).
Joseph P. Rem, Jr., argued the cause for respondent (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel and on the brief; Tamra Katcher, on the brief). PER CURIAM
Following a trial on charges of driving while under the influence and reckless driving, a judge of the Hanover Township Municipal Court found defendant Daniel Bell not guilty of reckless driving, N.J.S.A. 39:4-96, and guilty of driving with a blood alcohol concentration of .10% or higher and of driving while under the influence, N.J.S.A. 39:4-50(a)(1)(i)-(ii). This was defendant's first conviction for violating N.J.S.A. 39:4-50, and his Alcotest reading was .16%.
Upon defendant's conviction for a first violation of N.J.S.A. 39:4-50, which was based on evidence of a blood alcohol concentration of .10% or higher, the municipal court was required to impose, among other penalties, a license suspension "for a period of not less than seven months nor more than one year" and "a fine of not less than $300 nor more than $500." N.J.S.A. 39:4-50(a)(1)(ii). In conformity with that provision, the municipal court imposed a license suspension of seven months and a fine of $356.
Other penalties mandated for a first violation of N.J.S.A. 39:4-50(a)(1) are not elevated for those whose blood alcohol concentration is .10% or higher. See N.J.S.A. 39:4-50(a) (ii) (both providing for "a period of detainment of not less than 12 hours nor more than 48 hours . . . served as prescribed by the program requirements of the Intoxicated Driver Resource Centers . . . and, in the discretion of the court, a term of imprisonment of not more than 30 days").
Had defendant been found guilty of driving while under the influence based on evidence other than a blood alcohol concentration of .10% or more, he would have been subject to a shorter period of suspension and a fine set within a lower range. N.J.S.A. 39:4-50a(1)(i). In that circumstance, the law mandates a license suspension "for a period of three months" and "a fine of not less than $250 nor more than $400." N.J.S.A. 39:4-50a(1)(i) (providing the penalties for a violation of N.J.S.A. 39:4-50 based on a blood alcohol concentration of .08% or higher but less than .10% or on operation of "a motor vehicle while under the influence of intoxicating liquor").
At the trial de novo in the Law Division, defendant argued that the Alcotest results should have been excluded. The judge determined that the State failed to establish the admissibility of defendant's Alcotest results in accordance with State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The judge found two deviations from Chun — one, that the officer did not give defendant a copy of the Alcotest results on the night in question; and two, because the judge was not satisfied that the officer observed defendant for twenty minutes preceding the Alcotest.
Because the Alcotest results were the State's only evidence supporting a conviction based on defendant having a blood alcohol concentration of .10% or higher, the judge's evidentiary ruling required defendant's acquittal. See State v. Reyes, 50 N.J. 454, 458-59 (1967) (holding that a judgment of acquittal is required where the State's evidence, viewed in the light most favorable to the State, is inadequate to prove each element of the offense beyond a reasonable doubt). Accordingly, the judge vacated defendant's per se conviction and the penalties imposed.
In contrast, accepting the municipal court's credibility determinations and based upon the testimony the State presented in the municipal court, the judge found that the State proved defendant's guilt of driving while under the influence beyond a reasonable doubt. Accordingly, the judge found defendant guilty on that ground and imposed penalties within the range authorized by N.J.S.A. 39:4-50(a)(1)(i). The sentence the judge imposed differed from that imposed by the municipal court in two respects — the license suspension is for three months, not seven, and the fine imposed is $250, not $356.
The State appeals the judgment entered by the Law Division and contends that the judge erred in excluding the Alcotest reading. In short, the State seeks reinstatement of the per se conviction entered by the municipal court, which would require a longer period of suspension and a greater fine. Because we conclude that the issue raised by the State is moot, we dismiss its appeal.
Generally, "as a matter of judicial restraint, 'courts should not decide cases where a judgment cannot grant relief.'" Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000) (internal citation omitted); see also State v. Lyles, 291 N.J. Super. 517, 530 (App. Div. 1996) (dismissing as moot the State's cross-appeal from the trial court's holding that fresh-complaint evidence was inadmissible, because the conviction was affirmed), certif. den. sub nom. State v. R.F.L., 148 N.J. 460 (1997). That is the problem here; the relief the State seeks cannot be granted.
It is well-settled that the State may not appeal a final judgment in a criminal or quasi-criminal case when a charge has been dismissed on evidentiary grounds. State v. Widmaier, 157 N.J. 475, 491 (1999). In State v. Krause, 399 N.J. Super. 579, 580-81 (App. Div. 2008), this court reinstated a municipal court's conviction that was reversed by the Law Division. We explained that this was permissible because the Law Division's contrary determination was "unrelated to factual guilt or innocence." Id. at 581 n.1. But in this case, the Law Division's determination is related to factual guilt — absence of essential evidence. In Krause, our decision was based on the judge's erroneous legal conclusion — that the ordinance was invalid. Id. at 583-84.
The State argues that the judge's ruling does not have the same significance as an acquittal with respect to this appeal. We disagree, because the judge's evidentiary ruling left the State without any evidence of an essential element of the per se violation — evidence that his blood alcohol concentration was, in fact, .10% or higher. In short, because all evidence of defendant's blood alcohol concentration was excluded, the State could not prove defendant's guilt. See Sanabria v. United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43, 57 (1978) (holding that a "judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error").
The State relies on State v. Kashi, 360 N.J. Super. 538 (App. Div. 2003), aff'd, 180 N.J. 45 (2004), for the proposition that this court may reinstate the conviction for the per se violation of N.J.S.A. 39:4-50a(1)(i) vacated by the Law Division because of its evidentiary ruling. The State's reliance on Kashi is wholly misplaced.
Kashi involved a prosecution for an incident of driving while under the influence that occurred on March 24, 2001. 360 N.J. Super. at 540. At the time of that incident and when this court decided Kashi, the penalties for driving while under the influence and driving with a blood alcohol concentration of .10% or higher were identical. N.J.S.A. 39:4-50(a)(1) (as defined in L. 2000, c. 117, § 1, effective Sept. 13, 2000, and in L. 2001, c. 12, § 2, effective January 29, 2001, and in L. 2002, c. 34, § 17, effective July 1, 2002).
It was not until January 20, 2004, when L. 2003, c. 314, § 2 took effect, that N.J.S.A. 39:4-50 provided penalties for driving with a blood alcohol concentration of .10% more severe than the penalties for one found guilty of driving while under the influence established by observation or established by evidence of a blood alcohol concentration of .08% or more but less than .10%. Compare N.J.S.A. 39:4-50(a)(1)(i)-(ii) (as adopted in L. 2003, c. 314, § 2 and amended through L. 2009, c. 201, § 1, effective Jan. 14, 2010). We have discussed the differences in the penalties above, the most significant one being a license suspension for a minimum of four additional months.
In Kashi, this court affirmed the Law Division's entry of a judgment of conviction for violating N.J.S.A. 39:4-50 on a different basis than the municipal court. The municipal court determined that the testimony the State offered to establish that defendant was under the influence based on his conduct was inadequate to support a finding of guilt on that basis. 360 N.J. Super. at 542-43. Nevertheless. the municipal court had found defendant guilty of violating N.J.S.A. 39:4-50 based on the results of his breathalyzer test. Ibid.
In contrast, on trial de novo in the Law Division, the judge found that the State's evidence of defendant's conduct was adequate to establish defendant's intoxication and entered a conviction for violating N.J.S.A. 39:4-50 on that basis. Id. at 543.
On appeal, defendant argued that the municipal court's determination that there was inadequate evidence to prove intoxication based on conduct precluded the Law Division judge from convicting him on that basis. This court rejected that claim. We reasoned:
Defendant misapprehends the offense of driving while intoxicated. There is one such offense, created by N.J.S.A. 39:4-50, guilt of which is proved through either of two alternative evidential methods: proof of a defendant's physical condition or proof of a defendant's blood alcohol level. A failure of proof on one aspect is not, by any measure, an acquittal. Defendant was not "acquitted" of anything in the municipal court. The municipal court judge who presided over the trial made his own assessment of the evidence and found defendant guilty through one evidential avenue.
[Kashi, supra, 360 N.J. Super. at 544-45.]
The difficulty for the State is that N.J.S.A. 39:4-50 no longer provides the same penalties for all forms of driving while under the influence. As previously noted, it now punishes driving with a blood alcohol concentration of .10% or more more severely than driving while under the influence or with a blood alcohol concentration of .08% or more but less than .10%. Thus, if the State were to prevail on this appeal, defendant would have a higher penalty, one that would have been appropriate only if the Law Division had not excluded the Alcotest results. For that reason, the State cannot rely on Kashi.
In fact, in Kashi we distinguished a prior decision of this court, State v. Lanish, 103 N.J. Super. 441 (App. Div. 1968). Lanish, like this case, involved an iteration of the drunk driving law that provided different penalties depending upon the proofs. Id. at 443. Judge Wefing, writing for the panel in Kashi, distinguished Lanish on that ground. She explained:
The statute at one point made a distinction between driving while intoxicated and driving while impaired. In that context, a driver who was acquitted in municipal court of driving while intoxicated under subsection (a) of the then-statute but convicted of driving while impaired under subsection (b) could not, on a trial de novo, be found guilty of driving while intoxicated. State v. Lanish, 103 N.J. Super. 441, 444 (App. Div. 1968). That analysis has no bearing under the current statute.
[Kashi, supra, 360 N.J. Super. at 545.]
To the extent the State seeks a conviction for the most serious form of driving while under the influence defined in N.J.S.A. 39:4-50, this case is controlled by Lanish, not Kashi. The State cannot obtain an order imposing a conviction for a violation that carries a more serious penalty following the Law Division's dismissal of that charge based on suppression of the evidence needed to prove an essential element of the more serious violation.
The State's claim to the contrary overlooks important reasoning in the Supreme Court's decision affirming Kashi that limits the holding. The Court stressed:
[B]ecause the de novo review did not subject defendant to a conviction after an acquittal, or to the possibility of conviction of a more serious offense, or of an offense carrying a higher penalty, we find no double jeopardy or due process violation.
Lastly, we take this opportunity to reaffirm our prior policy decision that a defendant convicted and sentenced in a municipal court may not be subjected to a greater sentence on appeal.
[180 N.J. at 48-49.]
We see absolutely no basis for concluding that the policy reaffirmed by the Supreme Court in Kashi would permit this court to grant the relief the State seeks in this case — a more stringent sentence imposed on appeal from the Law Division's judgment and on defendant's appeal from his conviction based on the officer's observations. Because no relief can be granted, the State's appeal is dismissed as moot.
That said, we turn to defendant's cross-appeal. Defendant raises one issue:
THERE IS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE COURT'S FINDING [THAT DEFENDANT WAS] GUILTY OF DRIVING WHILE INTOXICATED BASED ON THE OBSERVATIONS OF POLICE OFFICER KAISER.
Having reviewed the record, we conclude that defendant's conviction is amply supported by competent evidence in the record and affirm on that basis. See State v. Locurto, 157 N.J. 463, 471 (1999). Officer Kaiser's testimony, which the municipal court credited, established the following. The officer saw defendant's car on the side of the road just before 5:00 a.m. Defendant was standing thirty to forty yards away and behind some shrubbery, and Officer Kaiser asked him what happened. Defendant stared back blankly and tapped his chest. Defendant's speech was so slurred that Officer Kaiser could not understand what he was saying. In addition, defendant's eyes were bloodshot, his breath carried a strong odor of alcohol, and he was swaying and staggering. Finally, the curb by defendant's car had marks that were consistent with damage to defendant's car.
Defendant presented expert testimony to undermine the State's evidence, but that testimony did not require the municipal court to discredit Officer Kaiser's testimony or give the judge, on trial de novo, a ground to reject it. The arguments defendant presents are, in the end, based on his disagreement with findings the judge could have reached in considering the record anew and relying on Officer Kaiser's testimony, which the municipal court credited. But our standard of review requires us to defer. Substantially for the reasons stated by Judge Gibbons Whipple in her oral decision of March 21, 2013, we reject defendant's cross-appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION