Tuesday, December 30, 2014

911 call gave cause to stop car for dwi

Decided November 21, 2014, before the Honorable Edward A. Jerejian, J.S.C. 
On appeal from Garfield Municipal Court, Docket No. 13-93 
DOCKET NO.: 13-93 
BMA: 004-10-14 
This matter is on appeal from the Garfield Municipal Court. On March 27, 2013, Coreen Clark was issued the following three summonses: (1) Driving while intoxicated (“DWI”) contrary to N.J.S.A. 39:4-50; (2) DWI in a school zone contrary to N.J.S.A. 39:4-50(g)(1); and (3) refusal contrary to N.J.S.A. 39:4-50.2. (T31-3 to 11). 
On November 25, 2013, defendant appeared with counsel in the Garfield Municipal Court for trial before the Honorable Giuseppe C. Randazzo. (T). At the conclusion of trial, the Judge found the defendant guilty of DWI, DWI in a school zone, and refusal. (T111-4 to 12). 
This was the defendant’s second DWI conviction. The trial court merged the DWI with the DWI in a school zone and sentenced the defendant to: $807 in fines; $33 in 2 

court costs; $50 Victims of Crime Compensation Board (“VCCB”) assessment; $75 Safe Neighborhood Services Fund (“SNSF”) assessment; $200 DWI surcharge; four (4) year driver’s license suspension; 48 hours in an Intoxicated Driver Resource Center (“IDRC”); two years with an ignition interlock device; and 45 days in Bergen County Jail. (T114-5 to 16). 
The following fines and penalties were imposed for the refusal: $807 in fines; $33 in court costs; $50 VCCB assessment; $75 SNSF assessment; $200 DWI surcharge; four (4) year driver’s license suspension; 48 hours in an IDRC; two years with an ignition interlock device; and 45 days in Bergen County Jail. The refusal penalties were to run concurrent to the sentence for DWI in a school zone. (T114-17 to 23). 
On December 12, 2013, the defendant filed a timely notice of appeal. 
On March 27, 2013, at approximately 8:00 PM, Garfield Police Department dispatcher Joseph Calvitti (Calvitti) received a call from an unnamed concerned citizen reporting an erratic driver traveling on Outwater Lane. (T7-6 to T8-13). The anonymous caller informed Calvitti that a dark GMC with a partial plate of “L95” nearly struck multiple parked vehicles. (T8-17 to 24). At that point, Calvitti relayed that information to Officer Anthony Koptrya (Koptrya) and Officer Matio Pozo (Pozo) of the Garfield Police Department. (T8-25 to T9-12). Calvitti remained on the line with the anonymous caller and the caller conveyed to Calvitti that the defendant was traveling at a high rate of speed, again almost struck a couple of vehicles, and eventually made a left and pulled into the parking lot of the bar Three Wise Monks (bar). (T9-13 to T10-22). 
Upon arriving at the bar, Koptrya approached a dark colored GMC with license 3 

plate “L95CCZ.” (T15-19 to T16-1). Koptrya tapped the defendants window and advised her that he had stopped her due to a report of erratic driving. (T15-25 to T16-1). The Officer asked the defendant for her credentials, and in an attempt to hand over those credentials, the defendant dropped her license, struggled to produce her insurance card, and dropped her AAA card. (T16-9 to T17-12). Koptrya testifies that the defendant had watery and bloodshot eyes, she was unable to keep eye contact, and had a strong odor of alcohol emanating from her breath. (T17-23 to T18-10). It was at this point that the Officer asked the defendant to step out of the vehicle and when doing so, the defendant braced herself for support on the vehicle’s door. (T17-22 to T18-2). 
Officer Kopytra informed the defendant that he would be administering some field sobriety tests. (T18-23 to 25). The Officer administered both the horizontal gaze nystagmus and vertical gaze nystagmus test and at trial both parties stipulated that these test are only admissible for probable cause, and not toward indicia of intoxication. (T19-1 to 7). 
Next, the Officer administered the walk and turn test. (T19-9 to 10). The area where the test was to be performed was level and free of cracks and debris. (T19-13 to 14). When asked to perform the test, the Officer testifies that defendant said she wouldn’t put her foot in front of her and she was only here to pick up money. (T19-22 to 25). Furthermore, she stated that she barely drove because she knows her limit when she drinks. (T20-2 to 5). When the defendant was asked a second time to perform the test, she again refused. (T20-11 to 16). 
Lastly, Kopytra advised the defendant that he would be administering the one leg stand test. (T20-19 to 20). The defendant told the Officer that she would “not fucking do 4 

the test at all.” (T20-22 to 23; T21-1). 
At this point, Officer Kopytra placed the defendant under arrest and brought her to police headquarters. (T21-10 to 12). While in the Officers car, the defendant repetitively addressed the Officer as, “a fucking asshole,” “a fucking newbie,” and “a fucking pig with a hard-on.” (T21-18 to 25). 
At police headquarters, the defendant continued her disrespect toward the Officer and displayed a wide range of emotions such as being angry, being calm, and crying. (T28-3 to T29-14). She then informed Officer Koptrya that she won every DWI case and would beat this DWI case also. (T29-17 to 24). 
Officer Koptrya read the DMV Standard Statement to the defendant, and she refused to give a breath sample. (T24-9 to T25-5). He then read the defendant her miranda rights to which the defendant replied, “fuck you, you’re are an asshole.” (T26-3 to T27-10). At this point, Officer Koptrya concluded that the defendant was intoxicated and arrested the defendant and issued summonses for DWI, DWI in a school zone, and refusal. (T31-3 to 22). 
At trial, he defendant testified on her own behalf and claimed to have suffered from several medical condition such as: ADHD, asthma, anxiety, and bipolar depression. (T68-20 to 23). She testified that she informed the Officer that she was unable to perform the field sobriety test because of these medical conditions. (T70-25 to T71-10). Furthermore, the defendant contends that she attempted to do the walk and turn test, but it would have been impossible due to ground conditions, her medical conditions, and her shoes. (T72-2 to 14). 
Defendant admits to ignoring and eventually denying Officer Koptrya’s request to 5 

provide a breath sample. (T77-7 to 23). 
The Appellate Division has specified that the standard of review to be used by the Superior Court Law Division when hearing a municipal appeal is de novo. R. 3:23-8a. The function of the court is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964). A trial de novo requires the trier to make findings of fact. The Law Division’s role is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of Defendant’s guilt or innocence. State v. States, 44 N.J. 285, 293 (1965); R. 3:23-8a. Appellate courts should defer to the credibility findings of the trial court because they are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record. State v. Locurto, 157 N.J. 463, 475 (1999). 
The defendant argues that Officer Kopytra lacked reasonable articulable suspicion to conduct a motor vehicle stop. 
The State argues that the defendant’s erratic driving, which was reported in a play-by-play manner by an anonymous caller, was sufficient probable cause to conduct a motor vehicle stop. 6 

A police officer is justified in conducting a motor vehicle stop when he has articulable and reasonable suspicion that a driver has committed a motor vehicle offense. State v. Locurto, 157 N.J. 463, 470 (1999). Reasonable suspicion is a lower standard than the probable cause standard needed for an arrest. State v. Stovall, 170 N.J. 346, 356 (2002). 
In State v. Amelio, the court found reasonable articulable suspicion when a defendant’s daughter called 9-1-1 and reported that the defendant was drunk and gave a vehicle description. 197 N.J. 207 (2008). In Navarette v. California, the United States Supreme Court held that the police may conduct a motor vehicle stop based on an anonymous tip pertaining to reckless driving. 134 S.Ct. 1683 (2014). 
In State v. Golotta, the Court found the police acted constitutionally when they conducted a motor vehicle stop solely on information provided to them by an anonymous caller. 178 N.J. 205, 221-222 (2003). The Court stated that the reasonableness requirement of the Fourth Amendment is met when the caller provides sufficient information, such as adequate description of the vehicle or its location, so the officer can verify the vehicle stopped is the same as the vehicle which was identified by the caller. Id. 
In this case, the anonymous caller reached Calvitti, a 9-1-1 dispatcher, through a call being placed to the Garfield Police Department. (T7-23 to T8-4). The caller informed Calvitti that the defendant was driving erratically and nearly hit multiple vehicles. (T8-7 to 22). Additionally, the caller informed Calvitti that the defendant was driving a dark GMC with partial license plate “L95” and gave up to date details of the route the defendant was taking, including the defendant pulling into the parking lot of the Three 7 

Wise Monks. (T8-17 to T10-8). Calvitti passed this information along to Officer Koptrya and Officer Pozo. (T9-2 to 12). The Officer found the defendant’s vehicle, which matched the description provided by the caller, parked where the anonymous caller said it would be. (T15-19 to 23; T48-20 to T49-8). 
For the reasons stated above, this Court agrees that Officer Koptrya had reasonable articulable suspicion to pursue a motor vehicle stop of the defendant. 
Defendant argues that the Trial Court erred when they allowed Calvitti to testify as to his conversation with the anonymous 911 caller. 
The State argues that this testimony was properly admitted into trial under N.J.R.E. 801(c)(3). 
According to N.J.R.E. 801(c)(3), present sense impression testimony is admissible if it is, “a statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate.” 
In State v. Marsh, the court held that statements made by an anonymous informant while witnessing the event in question were inherently reliable and admissible during the trial. 162 N.J. Super. 290, 298-299 (Law. Div. 1978). The court stated that the information relayed was reliable because it was detailed and reported ongoing events. Id. 
In this case, the anonymous caller identified the make of the vehicle as well a partial license plate. (T8-19 to 22). The caller informed Calvitti, in detail, how and where the defendant was driving. (T8-6 to T10-8). Officer Koptrya found the defendants vehicle 8 

exactly where the anonymous caller said the vehicle would be. (T15-19 to 23). There is nothing in the evidence to show that the caller was not reliable. 
Therefore, the Trial Court properly allowed this evidence into trial pursuant to N.J.R.E. 801(c)(3). 
Defendant argues that her asthma condition prevents her from being capable of providing a breath sample. 
The State argues that the defendant refused to submit to a breathalyzer and has provided no evidence that her asthma prevents her from providing a breath sample. 
According to N.J.S.A 39:4-50.2, any person who operates a motor vehicle on a public road is deemed to have given consent to determine the content of alcohol in his blood. The officer must have reasonable grounds to believe the defendant was driving while intoxicated. Id. 
According to State v. Bernhardt, a charge for refusal is proper when “anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the test….” 245 N.J. Super. 210 (App. Div. 1991). 
In this case, the defendant was driving erratically, refusing to attempt the field sobriety test, had bloodshot and watery eyes, and was displaying a wide range of emotions. After being advised of her rights and asked to take breathalyzer, the defendant first stayed silent. (T24-13 to 22). When asked again, Officer Koptrya testifies that the defendant refused to take the test. (T24-13 to T25-5). Defendant also admitted that she refused to take the test. (T77-7 to 23). At that point, the defendant did not inform the 9 

Officer that she could not take the test due to any medical conditions. Furthermore, the defendant offered no expert witnesses to testify to any of her medical conditions. 
For these reasons, this Court finds de novo that there is sufficient evidence to find the defendant guilty of refusal contrary to N.J.S.A. 39:4-50.2. 
The defendant argues that there was not sufficient evidence submitted at trial to prove she was driving while intoxicated. 
The State argues there was sufficient observational evidence to prove the defendant was driving while intoxicated. 
According to N.J.S.A. 39:4-50, a person shall not “operate a motor vehicle under the influence of intoxicating liquors.” A defendant need not be absolutely drunk to be guilty of this but need only be “imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” State v. Johnson, 42 N.J. 146, 164-165 (1964). 
Observational evidence alone is sufficient to establish that a defendant was driving while intoxicated beyond a reasonable doubt. State v. Liberatore, 293, N.J. Super. 580,589 (Law. Div. 1996). The courts will consider a wide range of factors when determining whether defendant was operating a motor vehicle while intoxicated beyond a reasonable doubt. State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining conviction on defendant's driving without headlights on, smell of alcohol on defendant's breath, slurred speech, combative demeanor, difficulty standing, and inability to perform the field sobriety tests); State v. Oliveri, 336 N.J. Super 244, 251-252 (App. 10 

Div. 2001) (sustaining conviction on defendant's watery eyes, slurred speech, inability to follow commands, defendant's admission that he had consumed alcohol, staggering while walking, and failure to complete field sobriety test). 
In this case, the defendant was seen by an anonymous caller driving erratically and almost hitting multiple vehicles. (T8-7 to 22). When the Officer asked for the defendant’s credentials, the defendant had difficulty producing them. (T16-7 to T17-12). Officers smelled a strong odor coming from the defendant’s breath and she had watery and bloodshot eyes. (T17-15 to T18-10). When exiting the vehicle, the defendant had to use the door to brace herself. (T18-11 to 19). The defendant refused to cooperate with any field sobriety test and was uncooperative with officers. (T18-23 to T21-2). Lastly, the defendant displayed a wide range of emotions from being angry, to being calm, to crying. 
Therefore, this court finds de novo, that there is sufficient evidence to determine the defendant was guilty of DWI through observational evidence contrary to N.J.S.A. 39:4-50. 
The defendant argues that the Trial Judge improperly allowed prejudicial evidence into trial. 
The State argues that the evidence admitted was relevant and was properly admitted under N.J.R.E. 403. 
According to N.J.R.E 403, “relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, 11 

or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.” 
The mere possibility that evidence may be prejudicial to the defendant does not justify exclusion. State v. Swing, 328 N.J. Super. 236, 253 (App. Div. 2000). When a judge is balancing under N.J.R.E. 403, the trial judge’s “discretion is a broad one.” State v. Sands, 76 N.J. 127, 144 (1978). Determinations by the trial court will not be overruled on appeal absent a “finding so wide of the mark that a manifest denial of justice resulted.” State v. Carter, 91 N.J. 86, 106 (1982). 
Defendant argues that the testimony of the defendant’s inappropriate behavior and excessive cursing was unduly prejudicial. However, the testimony was probative and relevant to prove beyond a reasonable doubt that the defendant was intoxicated. Defendant argued that she was not intoxicated and her behavior was circumstantial evidence to the contrary. 
Additionally, the trial Judge stated that hearing the testimony would not affect his opinion, that the prosecutor would not sway his opinion, and that there was no jury present to sway. 
Therefore, this Court agrees that the testimony relating to the defendant’s erratic behavior is relevant and not unduly prejudicial. 
The defendant argues that the trial court improperly sentenced the defendant to four (4) years license suspension for DWI in a school zone and four (4) years license suspension on the refusal to run concurrent. 12 

The State argues that although two four (4) year suspensions running concurrently was an improper sentence, the defendant should be sentenced to two two (2) year license suspensions to run consecutively. In State v. Reiner, the New Jersey Supreme Court ruled that the heightened DWI in a school zone penalties only apply if the defendant’s prior conviction of DWI was also in a school zone. 180 N.J. 307, 318 (2004). 
In this case, defendant’s previous conviction was for DWI contrary to N.J.S.A. 39:4-50. That being the case, defendant’s conviction for DWI in a school zone merges into defendant’s DWI. Thus, defendant should be sentenced as a second offender contrary to N.J.S.A. 39:4-50. 
In State v. Frye, the New Jersey Supreme Court held that previous DWI convictions enhance the penalties on subsequent refusal convictions. 217 N.J. 566, 581-582 (2014). In that case, defendant, who had two previous DWI convictions, pled guilty to refusal. Id. at 568. Defendant was sentenced as a third time offender contrary to N.J.S.A. 39:4-50.4a. Id. 
According to N.J.S.A. 39:4-50.4a, for a second offense, “the revocation shall be consecutive to any revocation imposed for a conviction under the provisions of R.S.39:4-50.” 
As stated above, defendant has a previous DWI conviction. Therefore, defendants sentence for refusal shall be sentenced as a second offense and run consecutive to defendant’s conviction for DWI. 13 

Based on the record below, and after oral argument and a de novo hearing, this Court finds the defendant guilty of: (1) Driving while intoxicated contrary to N.J.S.A. 39:4-50; (2) Driving while intoxicated in a school zone contrary to N.J.S.A. 39:4-50(g)(1); and (3) refusal contrary to N.J.S.A. 39:4-50.2. 
As such, this Court imposes the following penalties: 
(1) For violation of N.J.S.A. 39:4-50, the defendant is sentenced to; 

Fine: $506 
DWI Surcharge: $100 
DDEF: $100 
Court Costs: $33 
SNSF: $75 
VCCB: $50 
IDRC: 48 hours 
Loss of D.L.: 2 years 
Ignition Interlock: 2 years 
Jail: 40 Days 
(2) For violation of N.J.S.A. 39:4-50(g)(1), defendants sentence will merge with count 1; 

Fine: $506 
DWI Surcharge: $100 
DDEF Surcharge: $100 
Court Costs: $33 
SNSF: $75 
VCCB: $50 
IDRC: 12 hours 
Loss of D.L.: 1 year 
(3) For violation of N.J.S.A. 39:4-50.2, defendant is sentenced to; 

Fine: $506 
DWI Surcharge: $100 
DDEF Surcharge: $100 
Court Costs: $33 
SNSF: $75 
VCCB: $50 
IDRC: 48 hours 14 

Loss of D.L.: 2 years 
Ignition Interlock: 2 years 
As per N.J.S.A. 39:4-50.4a, defendant’s sentence for violation of N.J.S.A. 39:4-50.2 will run consecutive to her sentence for violation of N.J.S.A. 39:4-50. Additionally, defendant has already served 40 days in the Bergen County Jail. 

Date: November 21, 2014 Honorable Edward A. Jerejian, J.S.C. 

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