State v. Reilly, DOCKET NO. A-0952-19
| Decision Date | 03 March 2021 |
| Docket Number | DOCKET NO. A-0952-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. REILLY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 08-19.
Thomas Cannavo argued the cause for appellant (The Hernandez Law Firm, PC, attorneys; Thomas Cannavo, of counsel and on the brief).
Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Alexis R. Agre, of counsel and on the brief).
Defendant appeals from the Law Division's order entered after a de novo trial on the record. The Law Division found defendant guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, DWI with a minor in the motor vehicle, N.J.S.A. 39:4-50.15; possessing an open container of an alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51b; and delaying traffic, N.J.S.A. 39:4-56. We affirm.
We derive our facts from the testimony elicited at trial. On November 22, 2017, at approximately 10:37 p.m., Medford Township police officer John Sabados was on duty as a patrolman when he received a call reporting a car parked in an intersection "for a long period of time with loud music." Sabados responded to the scene and saw an SUV parked in an intersection, approximately ten feet past a stop sign. The engine was running, its lights were on, and there was loud music coming from the vehicle. Sabados could see the driver, later identified as defendant, "looking down or slouched down."
Sabados parked his police car behind the SUV and activated the emergency lights on his vehicle.1 The officer got out of his car and approached the driver's side of defendant's car. As he stood at the driver's side window,Sabados observed defendant looking down at his cell phone in his lap. Sabados knocked on the window several times before defendant noticed him. The officer described defendant as "shocked" and then he lowered his window a few inches.
Sabados saw a "small child" in a car seat in the backseat of defendant's car, and a "half empty" "pint-size, 750 milliliter" bottle of Fireball whisky was in the front center console. Sabados stated he "detected the odor of alcoholic beverage emanating from the vehicle." Defendant said the whisky belonged to his fiancée, who he had recently dropped off at their home after an argument. Afterwards, defendant stated he went for a drive with his daughter to cool off.
When Sabados asked defendant for certain documents, defendant "fumbled" to remove his license, taking a period of time to produce it. He eventually gave the officer the registration for a different vehicle and an expired insurance card. Defendant told Sabados he had gone to dinner with his fiancée earlier in the evening where he consumed two or three drinks. Sabados noted defendant's slurred speech and bloodshot eyes.
Sabados then asked defendant to exit his car and walk to the front of the police car to perform standardized field sobriety tests. To perform a horizontal gaze nystagmus test, Sabados instructed defendant to follow a pen using only his eyes and not to move his head. Sabados said defendant moved his head tofollow the pen several times. Sabados also detected the odor of alcohol emanating from defendant's mouth as he stood next to him.
Before conducting a walk-and-turn test, Sabados asked defendant if he had any issues with his legs which would affect his ability to walk or stand in a straight line. Defendant responded that he had no cartilage in his right leg, which affected his ability to both bend and walk.
The officer instructed defendant to put his left foot in front of his right foot with his hands down at his sides, demonstrating the position for him. He also asked defendant to take nine heel-to-toe steps forwards and nine steps backwards along an imaginary line. Defendant failed to keep his hands down at his side, failed to walk heel-to-toe, failed to properly turn, and stepped off the imaginary line multiple times.2
Prior to conducting the one-leg stand test, Sabados again inquired whether defendant had any injuries that would affect his ability to stand on one leg. When defendant indicated he had a bad leg, Sabados asked whether standing on the other leg would help defendant and defendant replied "yes". Sabados then instructed defendant to stand with his feet together with his arms down at hissides. Sabados told defendant to lift the leg of his choice, directly in front of him, six inches above the ground, and, while staring at his raised foot, to count out loud until the officer instructed him to stop. Sabados again demonstrated the proper position.
Defendant attempted to perform the test by lifting his right leg. In doing so, he swayed, put his foot down several times, failed to keep his arms at his sides, failed to look at his raised foot, and slurred his speech while counting. At one point, defendant stated he had a bad knee. In light of his observations and defendant's inability to perform the field sobriety tests, Sabados concluded defendant was unfit to operate a motor vehicle and arrested him for DWI.
Once defendant was seated in the back of the police car, Sabados noted the strong odor of alcohol. He also detected the odor of alcohol emanating from defendant's mouth once he was brought to the police station.
Defendant was tried on the DWI and other related charges in municipal court on two days in January and March 2019. The Alcotest results were ruled inadmissible because of a break in the officers' direct observation of defendant prior to the administration of the test. The State presented Sabados as its witness.
Kevin Flanagan, a former State Trooper, was qualified as an expert in the administration of field sobriety tests. Flanagan opined that Sabados did not instruct defendant properly regarding the tests. He also stated that defendant's orthopedic condition with his knee would cause him pain and his obesity might cause him difficulty in performing the tests. On cross-examination, Flanagan conceded that defendant failed the tests and it was only possible that his physical condition affected his performance.
Defendant also introduced testimony from Dr. Lawrence Guzzardi, M.D., qualified as an expert in the areas of emergency medicine, medical toxicology, and orthopedic trauma. Dr. Guzzardi testified that he reviewed a medical record that indicated defendant had sustained a metatarsal fracture in his right foot in 2011. In addition, Dr. Guzzardi stated he reviewed chiropractic records from March 2014 in which defendant complained of back pain and stiffness, and hip and rib cage discomfort. An MRI of the lower spine in 2014 revealed bulging discs.
Dr. Guzzardi also testified regarding his review of additional records in 2014 in which defendant was diagnosed with a degenerative condition - a meniscal tear in his right knee. Although the meniscus was repaired, Dr. Guzzardi stated defendant continued to have recurring pain and swelling in theknee. Dr. Guzzardi opined that defendant's orthopedic issues and obesity adversely impacted his ability to complete the field tests.
Dr. Guzzardi also stated that the video footage of defendant's arrest did not conclusively establish defendant's intoxication. He opined that defendant's initial slurring was not due to intoxication because defendant's speech returned to normal at a rate faster than alcohol dissipates. Guzzardi expressed his belief that defendant's slurred speech was due to being suddenly awakened by Sabados.
On cross-examination, Dr. Guzzardi admitted he did not examine defendant at any time. He also conceded he did not know the condition of defendant's knee or back at the time of defendant's arrest. Although the doctor agreed defendant exhibited signs of impairment on the MVR, he found there were other explanations for his demeanor and behavior other than alcohol intoxication.
On May 1, 2019, the municipal court judge issued an oral decision. He initially advised that he found all of the witnesses to be credible. Having reviewed the videotape, the judge noted that when Sabados arrived at the scene, defendant's car was parked in the middle of an intersection. There was very loud music coming from the interior of the car and defendant did not respond to the police car's overhead lights or the initial knocks on the window.
The judge found defendant was unable to maintain his balance and had "significant slurring" of his speech. Although the judge noted defendant told Sabados he had orthopedic issues with his right knee, he nevertheless had trouble performing the field sobriety tests that appeared unrelated to any problems with his knee. The judge concluded that "given the totality of the circumstances, [and] all of the observations," defendant was guilty of DWI, DWI with a minor in the car, possessing an open container of alcohol in the car, and delaying traffic.
The court sentenced defendant as a third DWI offender3 to 180 days in the county jail, ten years' loss of driver's license with eleven years of ignition interlock to run concurrently, forty-eight hours at the Intoxicated Driver Resource Center, as well as a $1006 fine, and various fines and surcharges. For the DWI with a minor in the car conviction, the judge imposed an additional six months' loss of driving privileges to run consecutively with the suspension for defendant's DWI conviction, as well as an additional fine and court costs. The court stayed the jail sentence pending the outcome of the appeal.
Defendant appealed to the Law Division where the court conducted a...
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