Summary
listing facts contributing to probable cause for arrest, such as flushed face, drooping and red eyes, the strong odor of alcohol, and an admission of drinking, and stating that "[i]n addition, a suspected drunk driver's refusal to perform any field sobriety tests may be considered as further evidence of his or her intoxication"
Summary of this case from Lozano v. New JerseyOpinion
DOCKET NO. A-5030-12T2
09-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS GILLINGHAM, Defendant-Appellant.
John Menzel, attorney for appellant. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-074. John Menzel, attorney for appellant. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a trial de novo in the Law Division, on May 3, 2013, defendant Thomas Gillingham was convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. The court sentenced defendant to a seven-month driver's license suspension and to participate in the Intoxicated Driver Resource Center (IDRC) program for a period of twelve hours and install an ignition interlock device (the interlock device) in the motor vehicle he principally operates for one year after the expiration of his driver's license suspension. The court also imposed the appropriate fines, costs and surcharges.
Defendant was acquitted of driving while intoxicated (DWI), N.J.S.A. 39:4-50.
The court stayed defendant's sentence pending appeal.
We derive the following facts from the record. At approximately 2:17 a.m. on September 5, 2011, Police Officer Gabriel Farese from the Borough of Union Beach Police Department was "running radar" in a marked police vehicle at the intersection of Route 36 and Rose Lane when he saw defendant's vehicle traveling in the right lane of Route 36 at a high rate of speed. The officer "clocked" defendant's speed at sixty-seven miles per hour in a fifty-mile-per-hour zone, followed the vehicle, and saw it change to the left lane and continue at a high rate of speed. Officer Farese activated the emergency lights on his patrol vehicle and stopped defendant's vehicle. He approached the vehicle and while speaking to defendant, saw that defendant's movements were slow and fumbling, his eyes were watery, and he appeared to be annoyed and avoided eye contact. The officer smelled a strong odor of alcoholic beverage emanating from defendant's vehicle. Defendant denied having consumed alcohol and refused to perform any field sobriety tests. Defendant was arrested and transported to police headquarters.
At police headquarters, Officer Farese read to defendant the eleven instructions contained in the then-applicable Standard Statement for Operators of a Motor Vehicle (the Standard Statement), and asked defendant to submit samples of his breath. The Standard Statement included the following instructions:
8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.The Standard Statement did not include an instruction about the installation of an interlock device.
9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.
10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an [IDRC], and you will be required to satisfy the requirements of that center in the same
manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.
N.J.S.A. 39:4-50.17, which requires the installation of an interlock device for a refusal conviction, became effective January 1, 2001 for convictions committed on or after September 30, 2000. The Attorney General amended the Standard Statement, effective July 1, 2012, to include an instruction about the installation of an interlock device.
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Defendant refused to submit a breath sample, stating, "No," adding that his attorney told him he "didn't have to do it" and that he "wasn't going to do it." Officer Farese then read to defendant the Standard Statement's additional instructions and again asked if he would submit samples of his breath. Defendant responded, "No," and again added that "my attorney told me I don't have to do that, I'm not going to do that." Based on these facts, defendant was convicted of refusal to submit a breath test. This appeal followed.
On appeal, defendant raises the following contentions:
I. Because the Standard Statement Failed to Adequately Inform Defendant of the Consequences of Refusal, This Court Should Acquit Him of Breath Test Refusal.
II. Because Police Lacked Probable Cause to Arrest Defendant on Suspicion of Driving While Under the Influence of Alcohol, This
Court Should Acquit Him of Breath Test Refusal.
Defendant's contention in Point I lacks merit. There is no question that Officer Farese read the correct the-applicable Standard Statement to defendant, which adequately informed defendant that he must submit a breath sample or face serious consequences for refusal. Defendant refused despite knowing that his license would be revoked for a period of no less than seven months and no more than twenty years and he faced a fine of no less than $300 and no more than $2,000, the possible imposition of a consecutive license suspension or revocation if convicted of related offenses, and mandatory participation in the IDRC. Facing these severe penalties, he still refused to submit a breath sample. It is difficult to see how an interlock device instruction would have changed his mind. Notably, he never testified that he would not have refused to submit a breath sample had he known about the interlock device penalty.
Furthermore, the installation of an interlock device does not carry the same impact as a license suspension. Defendant can still drive with an interlock device installed in his car; he just cannot drive while intoxicated. Thus, we conclude that the absence of an interlock device instruction on the Standard Statement read to defendant was inconsequential. See State v. O'Driscoll, 215 N.J. 461, 479 (2013) (finding that a police officer's reading of an outdated Standard Statement was inconsequential because it "inform[ed] defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply[]").
Defendant's contention in Point II, that Officer Farese lacked probable cause to arrest him for DWI, is without merit. To make an arrest for DWI, the arresting officer need only have "'reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Reasonable grounds can be based solely on the officer's observations. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that "observational evidence" may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI."), aff'd, 293 N.J. Super. 535 (App. Div. 1996); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that defendant's slurred speech, loud and abusive behavior, disheveled appearance, red and bloodshot eyes, together with the strong odor of alcohol were sufficient to sustain a DWI conviction); Moskal, supra, 246 N.J. Super. at 20-21 (holding that defendant's flushed face, "drooping and red" eyes, the strong odor of alcohol, and an admission of drinking established probable cause for arrest). In addition, a suspected drunk driver's refusal to perform any field sobriety tests may be considered as further evidence of his or her intoxication. State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000). Based on Officer Farese's observations of defendant, the odor of alcohol emanating from defendant's vehicle, and defendant's refusal to perform field sobriety tests, there was sufficient probable cause for defendant's arrest for DWI.
Defendant's conviction is affirmed, the stay is vacated, and the matter is remanded to the Law Division for implementation of the sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION