STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLEMENT TIRADO,
Defendant-Appellant.
________________________NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
_________________________
September 13, 2010
Argued August 31, 2010 - Decided
Before Judges Payne and Messano.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Municipal Appeal No. 003-06-09.
Jane M. Personette argued the cause for
appellant (Law Offices of Brian J. Neary,
attorneys; Brian J. Neary, of counsel; Mr. Neary and Ms. Personette, on the brief).
Annmarie Cozzi, Assistant Prosecutor, argued
the cause for respondent (John L. Molinelli,
Bergen County Prosecutor, attorney; Ms.
Cozzi, of counsel and on the brief).
PER CURIAM
Defendant, Clement Tirado, appeals his second conviction[1] for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, for which he was sentenced to a two-year license revocation, required to spend forty-eight hours at an Intoxicated Driver Resource Center (IDRC) program, and required to perform thirty days of community service. Appropriate fines and penalties were also imposed.
On appeal, defendant raises the following arguments:
POINT ONE
THE COURT BELOW ERRED IN FINDING BOTH THAT POLICE HAD A REASONABLE AND ARTICULABLE REASON TO STOP MR. TIRADO AND PROBABLE CAUSE TO ARREST HIM.
a. Officer Quintano lacked a reasonable and articulable suspicion to stop Mr. Tirado.
b. Officer Quintano lacked probable cause to arrest Mr. Tirado.
c. The field sobriety tests were incorrectly administered and, therefore, are unreliable.
POINT TWO
THE COURT ERRED IN ITS DETERMINATION THAT MR. TIRADO'S MIRANDA RIGHTS WERE NOT VIOLATED WHEN POLICE CONTINUED TO QUESTION HIM AFTER HE INVOKED HIS RIGHT TO REMAIN SILENT.
POINT THREE
THE COURT ERRED IN FAILING TO SUPPRESS THE BREATHALYZER RESULTS GIVEN THE STATE'S FAILURE TO ESTABLISH THAT DEFENDANT WAS READ THE STANDARD STATEMENT.
I.
A municipal court trial was held in this matter, at which Dumont Police Officer Steven Quintano and Sergeant Vincent Tamburro testified. Quintano was the arresting officer. He testified that on February 14, 2008 at 2:00 a.m., while on road patrol, he was stopped at a red light at the intersection of Prospect and Madison Avenues in Dumont behind a Volkswagen. After deciding to run the car's license plate on his mobile data terminal, Quintano learned that the registered owner of the car was an unlicensed driver. Shortly thereafter, the driver made a right turn onto Madison Avenue, nearly striking the curb in doing so. Quintano decided to make a stop and activated his lights. After proceeding for approximately three blocks, the driver slowly pulled over to the curb.
When approached, the driver, who was observed not to be wearing a seat belt,[2] admitted that his license was expired. Quintano testified that, while speaking to the driver, he noticed a strong of alcohol on his breath, and that his eyes were red. When asked whether he had been drinking, the driver admitted that he had been drinking beer and Jameson and asked whether he had been observed leaving the Corner Inn.
At that point, Quintano commenced administering field sobriety tests. He testified that he first asked the driver to recite the alphabet without singing it. The driver was unsuccessful, first singing, then slurring over the letters M and N, and completing the alphabet with T, U, V, H, I, J, and K. Quintano then administered a counting test, requesting that the driver count backwards from sixty-seven to fifty-two. The driver did so with difficulty, and his speech was slurred, slow, and somewhat incoherent. Quintano then asked the driver to exit the car, but he needed to use the driver's side door as support in doing so. After finding a level, non-icy area and asking whether the driver had any problems with his legs, Quintano instructed the driver to perform a one-leg stand for thirty seconds. However, the driver had difficulty keeping his balance. He frequently raised his arms to achieve balance, and he dropped his foot numerous times. He similarly failed a heel-to-toe, walk and turn test. At this point the driver, Tirado, was placed under arrest and issued summons for DWI, careless driving, failure to wear a seat belt, and driving with an expired license.
Quintano testified that, following defendant's arrest, he was taken to police headquarters and read his Miranda[3] rights. Defendant refused to sign the Miranda waiver form proffered to him, stating that he felt "like [he] was being raped." Quintano described defendant's demeanor as "continuously changing between cooperative, uncooperative," and he stated that defendant "had some fits of crying."
At that point, defendant was turned over to Sgt. Tamburro who administered a breathalyzer test. Both Officer Quintano and Sgt. Tamburro testified that the New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles (standard statement) was read to defendant before the breathalyzer test was administered. However, both denied reading the statement to defendant while testifying that the other did so and was heard doing so. That statement, when produced in court, did not contain information identifying defendant as the person to whom the statement was read, a case number, or either officer's signature. It did, however, list a response of "yeah, yeah" to the first statement on the form. Two breathalyzer readings disclosed defendant's blood alcohol content to be 0.19.
Thereafter, Tamburro again administered Miranda warnings to defendant, and he again refused to sign the Miranda waiver form. Defendant was then asked the questions set forth on Dumont's Drinking/Driving Report Question/Answer Form, responding that he was drinking beer and shots, that he had consumed three pints and "a few 4 shots," and that he had been at Charlie Brown's and the Corner Inn. However when asked the time between each drink, defendant stated that he felt "uncomfortable," and he refused to answer additional questions. Following objections to the admissibility of defendant's statements in response to the form's questions, the prosecutor withdrew his questions regarding the form, and he did not seek to introduce it into evidence.
At the conclusion of the trial, the municipal court judge found that "probable cause" existed for the stop of defendant's vehicle as the result of evidence that his license was expired and that he nearly hit the curb when making a right turn. The judge found defendant not guilty of the seatbelt offense, but found him guilty of driving without a license, careless driving, and DWI, based both on the subjective field sobriety tests and Quintano's observations and also on the breathalyzer test results. A two-year loss of license was imposed, along with forty-eight hours of IDRC instruction, thirty days of community service, two days of jail time, and appropriate fines and penalties.
The matter was appealed, and at that time, a stay of the license suspension was granted. Upon de novo review, a Law Division judge found defendant guilty of DWI on the basis of both the subjective tests and breathalyzer results and guilty of careless driving as the result of his "erratic" turn. She merged the conviction for careless driving with the DWI conviction for purposes of sentencing. The judge found defendant not guilty of driving without a license. In sentencing, the judge declined to order jail time, but otherwise imposed the same sentence that was imposed by the municipal court judge. This appeal followed.
II.
On appeal, defendant argues that Officer Quintano lacked a reasonable and articulable suspicion that a crime or other offense had been committed when he stopped defendant's vehicle. In support of his argument, defendant relies upon the finding of the Law Division judge that he was not guilty of driving without a license. Defendant argues additionally that there is no support in the record for the Law Division judge's conclusion that his driving was erratic.
We reject defendant's position, determining that Quintano's random use of his mobile data terminal to determine the status of the Volkswagen's registration and its owner's license was permissible, State v. Donis, 157 N.J. 44, 55 (1998), and because the information thus obtained suggested a violation of the law, Quintano had a sufficient basis to stop the car for further investigation. Id. at 56. See also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (permitting stop upon articulable and reasonable suspicion that the motorist is unlicensed); State v. Pitcher, 379 N.J. Super. 308, 314-15 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); State v. Lewis, 288 N.J. Super. 160, 164 (App. Div. 1996); State v. Parks, 288 N.J. Super. 407, 410-11 (App. Div. 1996). Any challenge to the reliability of the information obtained from the mobile data terminal must fail as the result of defendant's admission that his license was suspended.
Defendant next asserts that Quintano lacked probable cause for his arrest, arguing that because he was not stuporous, did not fall, was not involved in an accident, was not observed to have dilated pupils, was not incoherent, did not use abusive language, and was not vomiting, a basis for his arrest was lacking. However, such indicia, although probative, are not required. "It is not requisite that '* * * the accused be absolutely "drunk," in the sense of being sodden with alcohol'" State v. Johnson, 42 N.J. 146, 164 (1964) (quoting State v. Emery, 27 N.J. 348, 355 (1958)), but merely that he be shown to have "'imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.'" Id. at 165 (quoting Emery, supra,, 27 N.J. at 355.)
We find that evidence of defendant's admission that he had been drinking beer and shots, his inability to perform field sobriety tests, his difficulties in speaking clearly, and his alcohol-laden breath, adequately established probable cause in this case. "Probable cause for a search or arrest exists where a police officer has a well-founded suspicion or belief of guilt." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). "That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." Ibid. (citing Wanczyk, supra, 201 N.J. Super. at 266). "Probable cause to arrest or search an individual generally is defined as a well grounded suspicion or belief on the part of the searching or arresting officer that a crime [or offense] has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).
"'[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer "had reasonable grounds to believe" that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50].'" Moskal, supra, 246 N.J. Super. at 21 (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Officer Quintano's observations of defendant's appearance, speech and field tests, together with defendant's admission that he had been drinking meet this standard. State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div. 2001). See also State v. Bealor, 187 N.J. 574, 588-89 (2006) (citing with approval decision in which DWI convictions were premised on field sobriety tests); State v. Nece, 206 N.J. Super. 118, 128 (Law Div. 1985) (holding that: "Our courts have long accepted the results of field sobriety tests as reliable evidence of intoxication.").
Moreover, we reject defendant's argument that the field tests were improperly administered because Quintano did not ascertain whether defendant suffered from any underlying condition that would impair his ability to perform the tests and because he did not state (and was not asked) the criteria that he used to judge success or failure. We note that both the alphabet and numbers tests were administered to defendant while he remained in the car, and for that reason, the existence of any underlying physical impairment would not have been relevant to his performance. Further, Quintano testified that, once defendant had alighted, with difficulty, from the car, he was asked if he had any problem with his legs. The fact that Quintano could not remember a negative reply, together with the continuation of testing, raises the inference that defendant's response was negative. And finally, our review of Quintano's testimony detailing the nature of defendant's difficulties in completing the field sobriety tests administered to him satisfies us that a solid evidential basis existed for Quintano's conclusion that the tests were failed.
III.
Defendant next argues that the trial court erred in determining that defendant's Miranda rights were not violated when the police continued to question him after he had invoked his right to silence. At issue is the admissibility of defendant's partial responses to the questions set forth on the Dumont Police Department's Drinking/Driving Report Question/ Answer Form, given immediately after defendant refused to sign a Miranda waiver form.
We decline to address this point, noting that, in the municipal court trial, the prosecutor withdrew all testimony relating to that form when confronted with objections based on Miranda, and he did not introduce the document into evidence. As a consequence, the admissions and documentary evidence did not constitute a part of the municipal court record. We recognize that, when similarly confronted with defense counsel's challenge to the admissibility of defendant's statements as set forth on the Drinking/Driving Form, the Law Division judge found the statements admissible and read them into the record. However, the judge does not appear to have relied on those statements in determining that defendant was guilty of driving while intoxicated. Further, even if the statements were improperly admitted, we find that the evidence was sufficient to sustain defendant's DWI conviction in their absence.
IV.
As a final matter, defendant challenges his per se conviction for driving while intoxicated, premised on the results of the two breathalyzer tests, asserting that the evidence was insufficient to demonstrate beyond a reasonable doubt that the standard statement was read to him or that he was made aware of his right to independent testing.
We have held:
The Legislature has required that police officers read to all defendants arrested for DWI a standard statement, prepared by the Director of the Division of Motor Vehicles, before endeavoring to administer a breathalyzer test. N.J.S.A. 39:4-50.2(e); State v. Widmaier, 157 N.J. 475, 489 (1999). "By doing so, the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Id. at 489.
[State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007), aff'd in part and mod. in part on other grounds, 196 N.J. 537 (2008).]
In this case, the Law Division judge stated that she was unable to determine what officer read the standard statement to defendant, but she was "convinced" that it had been read. Our review of the record does not leave us similarly convinced, State v. Locurto 157 N.J. 463, 470-71 (1999), since neither Quintano nor Tamburro acknowledged having read the statement to defendant, and the statement itself does not clearly manifest the fact that it was in fact read or to whom it might have been read. Moreover, the officers' testimony does not establish that the appropriate statement was read, that the alleged reading conformed to the statement, or defendant's responses other than the alleged "yeah, yeah." In our view, such meager and equivocal evidence does not establish the requisite fact of an accurate reading of the proper statement beyond a reasonable doubt. As a consequence, we reverse defendant's per se conviction for DWI, but affirm his DWI conviction based on subjective evidence including the field sobriety tests.
Affirmed in part and reversed in part.
