STATE OF NEW JERSEY v. GERARD MCGINN (2011)

Defendant Gerard L. McGinn appeals from an order of the Law Division dated October 8, 2010, which denied his motion to suppress the results of an Alcotest and affirmed his conviction for operating a motor vehicle under the influence of intoxicating liquor, contrary to N.J.S.A. 39:4–50(a), and failing to signal before turning, contrary to N.J.S.A. 39:4–126.   We affirm.

I.

Summonses were issued to defendant for driving under the influence of alcohol or drugs, contrary to N.J.S.A. 39:4–50;  speeding, contrary to N.J.S.A. 39:4–98;  and failing to signal when turning, contrary to N.J.S.A. 39:4–126.   Thereafter, defendant filed a motion in the municipal court to suppress the results of the Alcotest.   The municipal court conducted a hearing on the motion.

At the hearing, Sergeant Shawn Austin (Austin) of the Cape May Police Department (CMPD) testified that around 2:00 a.m. on May 3, 2009, he was stationed in a marked patrol vehicle on Beach Drive in Cape May. Austin observed a black Mercedes, which was later identified as defendant's car, driving in his direction “at a high rate of speed.”   Austin turned on his radar, which indicated that the vehicle was going forty-one miles per hour.

Austin activated his lights and turned around to follow the car.   He saw the vehicle “make a wide left-hand turn onto Madison Avenue” without signaling.   The vehicle moved into the oncoming lane while making its turn.   The vehicle then made a right-hand turn onto New Jersey Avenue, but signaled before making the turn.   Austin followed the car and observed it turn into a driveway on New Jersey Avenue.

Austin parked his vehicle and saw a passenger stumble out of the car.   Defendant was the driver.   He exited the car from the left.   Austin approached defendant and requested his driver's license and registration.   Defendant complied but Austin testified that it took defendant “some time” to get his license out of his pocket and he stared at his registration for “some time” before handing it over.

According to Austin's police report, defendant was “swaying,” “sagging,” “grasping for support,” and “continually leaning for balance[.]”  His eyes were “bloodshot” and “watery,” his face was “flushed” and his feet were “wide apart for balance[.]”  Austin observed the odor of alcohol coming from defendant's mouth and asked defendant whether he had been drinking.   Defendant said that he drank earlier in the day, but did not state how much alcohol he had consumed.

Officer Walters of the CMPD arrived on the scene.   Austin asked defendant to step to the rear of his car, went to his patrol car to retrieve the audio recorder and returned to administer certain psychophysical tests, including the alphabet test, the count-backward test, the one-legged stand test and the walk and turn test.

Austin asked defendant to recite the alphabet from A to Z slowly and without singing.   Defendant recited the alphabet twice.   The first time, he missed the letter N and repeated certain letters.   The second time, Austin could not understand the last few letters of the alphabet, even though he was within one or two feet of defendant.   When Austin asked defendant to count backward from seventy-seven to forty-nine, defendant missed numbers sixty-eight and fifty-six, and counted down to forty-two instead of stopping at forty-nine.

Next, Austin explained and demonstrated the one-legged stand test, which required that defendant keep his arms at his sides, lift his right or left leg six to ten inches from the ground, and count from one to thirty in thousands.   When defendant first attempted to perform the test, he raised his arms to maintain his balance, failed to count in thousands as instructed, and put his foot down on the ground.   His second attempt produced similar results.

Austin then explained and demonstrated the walk and turn test, which required defendant to face the patrol car and walk forward nine steps, placing his heel directly in front of his toe.   When defendant tried to perform this test, he did not place his heels directly in front of his toes at any point and he spread his arms for balance.

At this point, Austin believed defendant was under the influence of alcohol.   Austin placed defendant under arrest and transported him to the Cape May police station, noting the presence of an alcoholic odor in his patrol car which had not been there before.   Austin attempted to administer the Alcotest but the machine showed a “control test fail.”   The CMPD contacted the Lower Township Police Department (LTPD) and arranged to have the Alcotest administered there.

CMPD Officer Nicholas Gallaccio (Gallaccio) transported defendant to the Lower Township police station at around 3:28 a.m. LTPD Officer Ryan Hansberry (Hansberry) met Gallaccio and defendant in the parking lot and they went inside.   Hansberry is a certified Alcotest operator.   Prior to May 3, 2009, he had administered about forty breath tests.

Hansberry testified that, in order to administer the test properly, the defendant must be observed for twenty minutes prior to the test to ensure that the defendant does not belch or place anything in his mouth that would cause any type of discrepancy with the test.   The video tape of the processing room indicates that Hansberry and defendant entered the room at 3:35 a.m.

Hansberry read defendant a standard statement advising him that he did not have a right to refuse the test.   At around 3:28 a.m., Gallaccio entered the room.   Defendant's first test was recorded at 4:00 a.m., and his second test recorded at 4:03 a.m. During the elapsed twenty-two minute period, defendant bobbed his head twice.   He claimed that he “belched a little bit” and regurgitated some liquid into his mouth.

The municipal court denied the motion to suppress.   The municipal court conducted a trial in the matter beginning on December 10, 2009.   The State presented Austin, who testified concerning the events leading up to defendant's arrest.

Defendant presented testimony from Gilbert Snowden (Snowden), who was qualified as an expert on the proper administration, scoring and reliability of field sobriety tests.   Snowden stated that the alphabet and counting backward tests are not “standardized field sobriety tests.”   He said that Austin did not tell defendant to watch his raised foot while performing the one-legged stand test, which compromised the test.   He also said that because Austin failed to inform defendant to watch his feet at all times during the walk and turn test, that test also was compromised.

Defendant testified on his own behalf.   He explained the sequence of events that led up to his arrest.   He said that on May 2, 2009, he and his friends played eighteen holes of golf in the morning and nine holes in the afternoon.   In between, defendant had lunch, drank some water and a beer.   After they finished playing golf, defendant and his friends went to the clubhouse to watch the Kentucky Derby.   He drank more water and another beer.

Defendant went home and helped prepare dinner.   During dinner, which ended “a little past nine” o'clock, defendant drank a glass of red wine.   At around one o'clock in the morning, defendant received a call from a friend, who told him to pick him and another friend up at a local bar.   Defendant drove there, arriving at around 1:15 a.m. Defendant was at the bar for half an hour and drank “two shots.”   He left the bar around 1:45 a.m. and began to drive home, which was one mile away.

Defendant stated that, at the time, he was on medication twice a day for his allergies.   He failed to take his second dose of medication on the evening of May 2, 2009.   Defendant said that he is “itchy” and his eyes are “watery” when he does not take his allergy medication.

The municipal court judge found defendant guilty of driving under the influence of intoxicating liquor and failing to signal before turning.   Defendant sought de novo review in the Law Division.   He moved to suppress the results of the Alcotest.   The trial court denied that motion and found defendant guilty of driving under the influence of intoxicating liquor and failing to signal a turn.

The court merged the offenses and sentenced defendant to a seven-month suspension of his driving privileges;  required defendant to spend twelve hours in the Intoxicated Driver Resource Center;  and imposed various surcharges, assessments and court costs.   The court entered an order dated October 8, 2010, memorializing its decision.   This appeal followed.

Defendant raises the following arguments for our consideration:

I.  THE STATE FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, THAT THE DEFENDANT WAS OBSERVED CONTINUOUSLY FOR TWENTY MINUTES BEFORE ADMINISTRATION OF THE ALCOTEST.

II. THE ALCOTEST WAS NOT ADMINISTERED WITHIN A REASONABLE TIME AFTER THE DEFENDANT WAS ACTUALLY DRIVING HIS VEHICLE.   CONSEQUENTLY, THE RESULTS OF THE ALCOTEST SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

III. THE PSYCHO/PHYSICAL TESTING AND OBSERVATIONS OF THE DEFENDANT DO NOT ESTABLISH, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT WAS GUILTY OF N.J.S.A. 39:4–50.

II.

Defendant contends that the Alcotest results should have been suppressed.   We disagree.

In State v. Chun, 194 N.J. 54, cert. denied, U.S. , 129 S.Ct. 158, 172 L. Ed.2d 41 (2008), the Court held that the Alcotest results are admissible into evidence if:  “(1) the device was in working order and had been inspected according to procedure;  (2) the operator was certified;  and (3) the test was administered according to official procedure.”  Id. at 134.   Among the required procedures is the requirement that the operator

observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence.   In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[Id. at 79.]

“The essence of this requirement is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time.”   State v. Ugrovics, 410 N.J.Super. 482, 485 (App.Div.2009), certif. denied, 202 N.J. 346 (2010).   To show that it satisfied this requirement, the State need only establish that the defendant “did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results” during the twenty-minute observational period.  Id. at 484–85.

Defendant argues that the video tape shows that he dipped his head twice and touched his mouth.   He asserts that Officers Hansberry and Gallaccio failed to observe these movements and should have begun the twenty-minute observational period anew.   The trial court disagreed, finding that the video established by clear and convincing evidence that the test was conducted properly.   The court observed that Hansberry was in the room with defendant for more than twenty minutes and Gallaccio was present for most of that time.   The court found that the required protocol was followed.

Defendant testified that he “belched a little bit,” regurgitated some liquid into his mouth, and believed he was going to be sick, but the municipal and trial courts did not find this testimony credible, given the depictions on the video tapes.   Based on its review of the video tape, the trial court found that there was nothing “in terms of body language or speech or sound that suggests ․ that there had been any regurgitation, vomiting, belching, cough [ing], [or] anything” that would compromise the test.

We must defer to the findings of the trial court where, as here, its findings are supported by sufficient credible evidence in the record.  State v. Locurto, 157 N.J. 463, 470–471 (1999).   Deference to the trial court's findings is especially appropriate when the court's findings are influenced by its ability “ ‘to hear and see the witnesses[.]’ ”. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).   Furthermore, the rule of deference is even more compelling where both the municipal court and the trial court have reached the same conclusions on purely factual issues.  Id. at 474.

III.

Next, defendant argues that the Alcotest results should not have been admitted because the test was not administered within a reasonable time after his arrest.   A breath sample is “ ‘evanescent’ ” and, therefore, law enforcement officers must “ ‘administer the breathalyzer test within a reasonable time after the arrest in order to obtain an accurate reading.’ ”  State v. Marquez, 202 N.J. 485, 511 (2010) (quoting State v. Widmaier, 157 N.J. 475, 487 (1999)).

Here, the record shows that two hours passed between defendant's arrest and the administration of the Alcotest.   The delay was due in part to the fact that the Alcotest machine at the Cape May police station was not operating properly and the test had to be performed at the Lower Township police station.   We are satisfied that the test was performed within a reasonable time.  State v. Samarel, 231 N.J.Super. 134, 137 (App.Div.1989) (holding that breath test was performed in a reasonable time when administered within three hours of arrest);  State v. Dannemiller, 229 N.J.Super. 187, 189–90 (App.Div.1988) (finding that breath test performed within five and one-half hours of arrest was performed in a reasonable time).

IV.

Defendant also contends that the psychophysical tests administered by Austin, along with his observations, were insufficient to support a finding of guilt under N.J.S.A. 39:4–50.   In support of his argument, defendant relies upon Snowden's testimony that the results of the tests were “compromised” and the alleged conflicts between Austin's and Gallaccio's testimony.

We note that the Alcotest results are, standing alone, sufficient to support defendant's conviction of driving while intoxicated.   Thus, we need not consider this argument.   In any event, we are satisfied that there is sufficient credible evidence to support defendant's conviction, wholly aside from the Alcotest results.

Here, the trial court found that the defendant's failure to adequately perform the alphabet and counting backward tests established probable cause to believe that defendant had consumed alcohol “to such [an] excessive degree as [to] deleteriously affect[ ] his ability to lawfully operate a motor vehicle.”   The court noted that defendant “mumbled” or “slurred” when asked to perform the alphabet test and missed numbers when asked to count backward.   The court also noted that defendant did not accurately perform the walk and turn or the one-legged stand tests.

The court found that the results of these tests, along with defendant's admission that he had been drinking, established beyond a reasonable doubt that defendant was guilty of violating N.J.S.A. 39:4–50.   We are satisfied that there is sufficient credible evidence to support the court's findings.   Locurto, supra, 157 N.J. at 471.   Defendant's arguments to the contrary are not of sufficient merit to warrant discussion.   R. 2:11–3(e)(2).

Affirmed.

PER CURIAM