Opinion
DOCKET NO. A-3963-12T2
10-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CATHERINE POUCH-MENDOLA, Defendant-Appellant.
Bathgate, Wegener & Wolf, P.C., attorneys for appellant (Daniel F. Corrigan, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 12-12. Bathgate, Wegener & Wolf, P.C., attorneys for appellant (Daniel F. Corrigan, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief). PER CURIAM
Following a trial de novo in the Law Division, defendant appeals from her conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50. We affirm.
In February 2011, at approximately 8:00 p.m., Officer Shannon T. Foote received a call dispatching him to the location of a vehicle fire. When he arrived at the scene, the officer located the vehicle positioned sideways in the roadway and in a snow bank, and observed a firefighter extinguishing the fire. The officer questioned defendant's daughter about who was driving the vehicle. As a result of that conversation, the officer entered the woods, followed a trail of footprints in the snow, and located defendant laying on the ground in a sticker bush with a jacket covering her face.
The officer spoke to defendant, who told him that she entered the woods because her daughter was verbally abusing her. When the officer was within a couple of feet of her, he smelled an odor of alcohol, and as he communicated with her, the officer detected the odor of alcohol emanating from her breath. Defendant admitted she had been drinking alcohol. The officer asked defendant if she was injured, and defendant responded that she was not injured from the crash, but that she had preexisting injuries. Defendant told the officer that she had ankle problems, so the officer helped defendant back to the road, and defendant told him that she crashed the vehicle and it caught fire.
Officer Louis A. Notare also arrived at the accident scene and made his own observations of defendant. When he arrived, he was unable to administer field sobriety tests because of the snow and ice on the ground. He too smelled alcohol emanating from defendant's person. The officers arrested defendant and transported her to headquarters.
Officer Notare conducted four field sobriety tests at the police station. Officer Notare observed that defendant was unable to walk a straight line, her eyes were bloodshot and watery, and she failed to keep her balance. At headquarters, Officer Foote continued to smell an odor of alcohol, and noticed that defendant was swaying and staggering, her speech was slurred, and her eyes were bloodshot and watery.
At headquarters, defendant voluntarily submitted to a breath test. However, the Alcotest machine froze after she supplied a second breath into the machine, and the results failed to print. As a result, Officer Foote rebooted the machine, causing the initial test results to be deleted, and obtained two new breath samples. The second round of breath samples registered, and the results successfully printed. Defendant's blood alcohol content was .09 percent. The police then charged defendant with DWI.
The parties tried the case in municipal court for three days. The State produced testimony from Officers Foote and Notare. Defendant did not testify on her own behalf, but challenged the Alcotest results by producing testimony from an expert in the use and operation of the Alcotest machine. On rebuttal, the State produced testimony from its own Alcotest expert, who opined that the test was performed properly and the results were reliable.
The municipal court judge found that Officers Foote and Notare were credible witnesses. Based solely on the officers' observation evidence, the judge found defendant guilty of DWI beyond a reasonable doubt. Although the municipal court judge found defendant guilty without considering the Alcotest results, he concluded that the test results were reliable. As a result, he also found defendant guilty of DWI relying on the Alcotest readings. As this was defendant's second DWI conviction, the judge imposed a two-year loss of license and appropriate fines and penalties. The judge stayed the sentence pending defendant's appeal to the Law Division.
The Law Division judge conducted a trial de novo finding defendant guilty of DWI beyond a reasonable doubt. Like the municipal court judge, he found defendant guilty based solely on the officer's observation evidence. The judge also concluded that the Alcotest results were reliable and found defendant guilty based on the .09 percent reading. The judge sentenced defendant to a two-year loss of license and imposed appropriate fines and penalties. The judge stayed the sentence pending this appeal.
On appeal, defendant raises the following points:
Defendant's point headings fail to meet the standards required under Rule 2:6-2(5). --------
POINT IDefendant maintains that the officers lacked probable cause to arrest and charge her with DWI, the State produced insufficient observation evidence to convict her beyond a reasonable doubt, and the judge erred by considering the Alcotest results.
OPERATION.
POINT II
PROBABLE CAUSE.
POINT III
RELIABILITY OF THE ALCOTEST RESULTS.
When a defendant appeals a decision made by a municipal court to the Law Division, the court is required to conduct a de novo review of the record, giving "due regard to the municipal judge's opportunity to view the witnesses and assess credibility." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). On appeal from the Law Division's decision, we must determine whether the Law Division judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 162).
We reject defendant's contention that the police lacked probable cause to arrest her. While the State must prove guilt beyond a reasonable doubt, State v. Cummings, 184 N.J. 84, 89 (2005), probable cause to arrest is a lower threshold, i.e., "a well-grounded suspicion that a crime has been or is being committed" by the defendant, State v. Marshall, 199 N.J. 602, 610 (2009) (citation and internal quotation marks omitted). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Ibid. (alterations in original) (citation and internal quotation marks omitted). Although it is difficult to define the concept with precision, probable cause requires "more than a mere suspicion of guilt" but less evidence than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010) (citations omitted).
Probable cause for driving under the influence will be found where an officer "had reasonable grounds to believe that the driver was operating a motor vehicle in violation" of the DWI statute. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citation and internal quotation marks omitted). In assessing probable cause, a judge considers the totality of the circumstances. State v. Moore, 181 N.J. 40, 46 (2004). The facts are viewed "from the standpoint of an objectively reasonable police officer." Basil, supra, 202 N.J. at 585 (citation and internal quotation marks omitted).
Here, Officer Foote observed defendant laying on the snow-covered ground, in a sticker bush with a jacket covering her face; he detected an odor of alcohol when he approached her and then smelled alcohol from her breath; defendant admitted to the officer that she had been drinking; and she stated that she crashed the vehicle into the snow bank. Officer Notare also detected an odor of alcohol emanating from defendant's breath at the scene.
Under the totality of the circumstances, these facts established sufficient grounds for an objectively reasonable police officer to believe that defendant had operated a motor vehicle in violation of the DWI statute. See Basil, supra, 202 N.J. at 585. There exist sufficient facts, therefore, to establish a well-grounded suspicion that defendant drove her car while intoxicated. See State v. Wright, 107 N.J. 488, 502-04 (1987). Accordingly, we conclude there is no occasion to disturb the Law Division's decision, as it was supported by sufficient credible evidence in the record. See State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).
We further conclude that the State produced sufficient observation evidence to convict defendant of DWI beyond a reasonable doubt. It is well-established that an officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See State v. Cryan, 363 N.J. Super. 442, 456-57 (App. Div. 2003) (sustaining DWI conviction based on observations of defendant's bloodshot eyes, hostility, and strong odor of alcohol); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer's observation of the defendant's driving without headlights on, inability to perform field sobriety tests, combativeness, swaying, and detection of odor of alcohol on the defendant's breath); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001) (sustaining DWI conviction based on officer's observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day).
Here, defendant admitted that she crashed the vehicle and had been drinking alcohol earlier in the day. At the scene, the officers detected an odor of alcohol emanating from her breath. At headquarters, the officers observed defendant's slurred speech, stumbling, loud demeanor, watery eyes, odor of alcohol, inability to satisfactorily perform two of four field sobriety tests, swaying, and staggering. As we have previously stated, a defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993). Such is the case here.
We reject any suggestion that defendant's asserted preexisting injuries, to her ankles, feet, wrists, and shoulder, in addition to certain other illnesses, diminished the quantum of overwhelming observation evidence of guilt. Moreover, Officer Notare asked defendant if she was able to perform the sobriety tests given her medical condition. Defendant voluntary agreed to perform the tests, and failed two of the tests administered, namely the walk-and-turn test and the one-legged stand. Even if defendant's injuries somehow impaired her ability to perform the physical aspects of the tests, the record contains sufficient credible evidence to support the judge's finding that defendant was guilty of DWI beyond a reasonable doubt. The officer's observations, combined with defendant's own admission that she had been drinking, are sufficient to support a conviction for DWI.
Finally, because there exists sufficient evidence to convict defendant of DWI beyond a reasonable doubt based solely on the observations of the officers, we need not address defendant's last contention as to the reliability of the Alcotest results. We add for the sake of completeness, however, that the judge properly considered the Alcotest results. The municipal court judge accepted the testimony of the State's expert and concluded that the test was properly administered and was otherwise reliable. See State v. Chun, 194 N.J. 54, 77-148, (setting forth the procedures for administering the test), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The Law Division judge independently reached the same conclusion. In reviewing the testimony of both experts, we are satisfied that the judge reached the correct result. The combined testimony of the experts indicate that the machine was shut down and the initial test results were lost. However, there is no evidence to suggest that the machine was flawed or that it rendered inaccurate or unreliable results after being rebooted. As a result, there exists independent credible evidence in the record to convict defendant of DWI on a per se basis. N.J.S.A. 39:4-50 (stating that "a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . ." will be guilty of DWI) (emphasis added).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION