Saturday, February 14, 2015

DWI reserved and remanded where judge made improper credibility determinations State v BARILLARI

DWI reserved  and remanded where judge made improper credibility determinations State v BARILLARI
STATE OF NEW JERSEY, Plaintiff-Respondent,
DEVIN BARILLARI, Defendant-Appellant.
DOCKET NO. A-5311-12T2
Argued March 26, 2014
January 30, 2015
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2012-062.
Brian W. Mason argued the cause for appellant (Nuzzi & Mason, LLC, attorneys; Vincent J. Nuzzi, of counsel; Mr. Mason, on the brief).
Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, of counsel and on the brief).
The opinion of the court was delivered by
        Defendant Devin Barillari appeals his convictions following a trial de novo of Driving While Intoxicated (DWI), N.J.S.A. 39:4-50, and Careless Driving, N.J.S.A. 39:4-97. He contends
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the Law Division judge found him guilty of driving while intoxicated based on unsound and legally inadequate evidence, and that the State did not prove beyond a reasonable doubt that he committed the offense of careless driving. Having considered the record in light of defendant's arguments and controlling law, we reverse defendant's DWI conviction and remand this matter to the trial court for a trial de novo on the record. We affirm defendant's careless driving conviction.
        On December 19, 2009, defendant was arrested and charged with driving while intoxicated and careless driving. Following motion practice that spanned nearly two years, the case was tried in municipal court on non-consecutive days over three months. The State developed the following proofs at the municipal court trial.
        While on routine patrol during a snowy night, veteran Fairfield police officer Christopher Nicholas drove through a rear restaurant parking lot where he observed defendant doing "fishtails" in a Jeep. As the officer watched, defendant lost control of the Jeep, striking a snow bank and nearly missing a fire hydrant. Defendant reversed the Jeep, accelerated forward, and nearly struck a snow plow. Defendant then drove to a parking spot in front of the restaurant where Nicholas approached him.
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        As Nicholas approached the Jeep, defendant opened the door, and Nicholas asked why he was operating the vehicle in such a manner. The officer smelled alcohol on defendant's breath and observed that defendant's eyes were bloodshot and watery and his face was flushed. He asked defendant if he had anything to drink. Defendant said he had two beers. Based on his observations as well as his training and experience, Nicholas believed defendant was intoxicated.
        The officer's experience was considerable. He had attended courses for breathalyzer operation and DWI detection, each course lasting one week, and he had also received training in standardized field sobriety testing. In addition, the officer had undergone two weeks of classroom and field training to qualify as a drug recognition expert. He had twice been certified to administer the Alcotest and had made between 200 and 300 arrests of people who were driving while intoxicated.
        Believing that defendant was under the influence of alcohol, Nicholas administered field sobriety tests after first confirming that defendant had no medical problems or conditions that would prevent him from performing the tests. The officer had defendant perform the tests next to his Jeep, in a flat, well-lit area, free of debris. Nicholas first testified that he
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picked the area because there was no snow on the ground but then corrected himself and said there was a light coating of snow.
        The officer had defendant undergo the following field sobriety tests: Horizontal Gaze Nystagmus (HGN); alphabet; walk-and-turn; and one-legged stand. The HGN test, consisting of an officer holding a stimulus in front of a suspect's eyes and moving it from side-to-side, is used to detect nystagmus, which is "defined as the involuntary jerking of the eye." State v. Doriguzzi, 334 N.J. Super. 530, 534 (App. Div. 2000). "[I]t is generally understood that alcohol use, among other things, will cause nystagmus." Ibid. The remaining tests required defendant to follow instructions and perform physical movements: reciting the alphabet from the letter C to the letter Z; walking nine steps heel-to-toe while keeping his hands down at his side and looking at his feet, stopping, turning, and returning to the starting point; and, standing stationary, lifting one foot approximately six inches off the ground while staring at his toe and keeping his hands at his side.
        According to the officer, defendant's performance on the tests evidenced that he was under the influence of alcohol. Nicholas observed defendant's eyes involuntarily jerk during the HGN test. With respect to the walk-and-turn test, Nicholas testified that "[t]here was no line in the parking lot,
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obviously, due to . . . snow covered parking lot . . . and in the position where I was, I don't believe there was a line." Because there was no line, Nicholas asked defendant to follow an imaginary line on the pavement. While performing the test, defendant stopped several times to balance himself, both on the first nine steps going and the second nine steps returning. Defendant also "did not touch heel-to-toe." Additionally, defendant raised his arms for balance during the entire test. With respect to the one-legged stand test, defendant "swayed right to left for the entire test[,]" and he used his arms for balance by raising them more than six inches or greater. During the last few seconds of the test, defendant put his foot down, swayed, and raised his arms for balance.
        Based on his observations of defendant, Nicholas concluded that defendant had been driving while under the influence of alcohol. The officer placed defendant under arrest.
        Defendant was transported to police headquarters where Nicholas read him Miranda1 warnings, asked him the questions on a drinking and driving questionnaire, and read "the DMV standard statement form regarding the Alcotest." In response to a question on the drinking driving questionnaire, defendant said
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that he had four beers that evening between seven o'clock and nine-thirty, with approximately one-half hour between each drink, at the restaurant where he was arrested. According to the Alcotest results, defendant had a blood-alcohol concentration of .09 percent.
        To establish a reasonable doubt as to the prosecutor's proofs, defendant presented the testimony of four lay witnesses and an expert. One of the witnesses, defendant's friend Rory, had gone to defendant's house in the afternoon to work on a truck and was with defendant until his arrest in the restaurant parking lot. Defendant's friend Shawn picked up defendant and Rory at approximately five-thirty to go to the restaurant for dinner. Rory was not clear about precisely what defendant had to drink before Shawn picked them up to go to the restaurant. During cross-examination, Rory acknowledged his testimony at a probable cause hearing that defendant had one twelve or sixteen ounce beer.
        In any event, Rory, Shawn and defendant went to the restaurant and sat down to eat dinner. While they ate, it snowed outside. According to Rory, the restaurant manager, Aaron, who was also their friend and lived with defendant, said he would comp their meal if they would shovel snow from the front restaurant sidewalk. Rory, Shawn and defendant went
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outside, took approximately twenty to twenty-five minutes to shovel approximately eight inches of snow from the sidewalk, and then returned. When they returned to the restaurant, Shawn left but Rory and defendant remained. Aaron said he would drive them home. When Aaron decided to close the restaurant around nine o'clock due to the snow, defendant went out to warm up Aaron's Jeep. That led to the events that culminated in defendant's arrest.
        Rory went to the rear parking lot and got into the front passenger seat of the Jeep. The lot was snow-covered. After waiting fifteen or twenty minutes, they drove the Jeep to the front of the restaurant, believing that Aaron might be at the front door. Aaron was not there, and they did not stop because a snow plow was beginning to plow the front parking lot. They circled the parking lot twice. The Jeep did slide in the snow in the rear parking lot but it never fishtailed because the four-wheel drive was engaged.
        According to Rory, the front parking lot was snow-covered; the plow had only plowed a small part of the driveway. The second time they circled in front of the restaurant, Rory got out of the Jeep to see what was keeping Aaron. When Rory returned, he saw the police cars and he saw the police arrest defendant. He did not see the police make defendant do any
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tests. The parking lot was covered by approximately six inches of snow. Rory had observed no signs that defendant was visibly intoxicated at any time throughout the day and night.
        Defendant's three other lay witnesses, to the extent they observed defendant during the sequence of events described by Rory, corroborated his testimony. Shawn was with Rory and defendant from five-thirty in the afternoon to eight-thirty that night. When Shawn left the restaurant, it was snowing heavily and four or five inches of snow had accumulated. The restaurant parking lot had not been plowed. Shawn had seen defendant drink two twelve-ounce bottles of beer but defendant appeared to be fine and showed no signs of intoxication.
        The restaurant's bartender testified that after defendant shoveled the restaurant's sidewalk, he came back in and sat at the bar for "[a]bout an hour, maybe an hour and a half," during which time he drank one beer. When the bartender left the restaurant, defendant was in the rear parking lot in a Jeep. The bartender recalled there being eight inches of snow on the ground. None of the parking spaces had been plowed. She testified that she had been trained to observe signs of intoxication, such as slurred speech, flushed face, frequent trips to the bathroom, swaying, bloodshot eyes, sleepiness, and rowdiness. She had spoken with defendant while he was at the
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bar and he had displayed none of these signs. Had she observed any, she would have notified the manager. Unlike defendant, Rory was intoxicated.
        Like the bartender, the restaurant's manager, Aaron, was trained to observe signs of intoxication. He had seen defendant display no signs of being under the influence of alcohol.
        Plaintiff's expert, Joseph Tafuni, is the president and founder of Pinnacle DWI Consulting Group. A former State Trooper who retired after twenty-eight years, Tafuni spent twenty years as a breath coordinator and instructor in the New Jersey State Police Alcohol and Drug Testing Unit. He had become certified by the manufacturers of several breathalyzers and later the Alcotest. Tafuni was also qualified to train police officers to become certified breath test operators. He had trained thousands of New Jersey based police officers to properly process DWI suspects and conduct breathalyzer and Alcotest testing. In fact, Nicholas had been his student. Additionally, Tafuni had trained thousands of police officers to properly administer, document, and interpret the results of standardized field sobriety testing.
        Tafuni was critical of nearly every aspect of Nicholas's DWI investigation of defendant, including the field sobriety tests, the Alcotest, and Nicholas's preparation of his reports.
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Although witnesses had testified that a significant amount of snow had accumulated on the restaurant parking lot where the police arrested defendant, Nicholas's report did not document those conditions, an omission that contravened protocol in a DWI investigation. Tafuni explained that weather conditions play a critical role in the administration of standardized field sobriety tests. Defense witnesses had testified that when they left the restaurant there were no parking spaces in the parking lot that were not covered by snow. Nicholas documented neither the weather conditions nor the parking lot's conditions.
        Tafuni said Nicholas administered the alphabet test correctly but did not properly document defendant's mistakes and therefore did not follow protocol. Tafuni also surmised that dyslexia could affect the test. As to the HGN test, Tafuni explained Nicholas did not check for "resting nystagmus" to determine whether defendant had a medical condition that might affect his performance. Tafuni also said Nicholas held the stimulus too close to defendant's face. Additionally, Tafuni explained that inclement weather could affect the HGN test.
        According to Tafuni, Nicholas should not have performed the walk-and-turn test on a slippery surface such as snow or ice and did not properly document defendant's performance. Tafuni held the same opinion concerning the one-legged stand test.
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According to Tafuni, National Highway Traffic Safety Administration (NHTSA) standards are violated when field sobriety tests are performed on a slippery surface.
        Tafuni also criticized Nicholas for not activating the overhead lights on his patrol car and stopping the Jeep as soon as he observed it fishtailing. Lastly, Tafuni criticized Nicholas for not observing defendant for a sufficient amount of time at police headquarters before having defendant give a breath sample for the Alcotest.
        The municipal court judge found defendant guilty of DWI and careless driving. The judge declined to consider the HGN test and, with respect to the other field tests, found that the weather conditions - including a slight coating of snow in the area where they were performed - affected them. The judge did not, however, totally ignore the tests; rather, he found they were relevant to defendant's ability to understand and follow instructions.
        The judge found credible the testimony of Nicholas as well as the testimony of defendant's witnesses. He accepted, however, Nicholas's observations of the Jeep fishtailing. The judge also found credible that the officer smelled alcohol when he first spoke with defendant, observed defendant's flushed face and bloodshot eyes, and learned from defendant that he had been
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drinking beer. The judge gave great weight to the officer's opinion that defendant was operating his vehicle while under the influence of alcohol. The judge concluded:
When viewing the facts in their entirety, and in a totality of the circumstances, I find the following: There was clearly erratic operation of this motor vehicle. Clearly, the defendant was operating the motor vehicle in a public area. Defendant's admission of ingesting two beers, then later admitting to four beers, the officer's observations, the officer's training, based upon all those factors, I must enter a finding of guilty based upon observations alone.
        The judge further found that there were no procedural violations concerning the Alcotest, and he therefore accepted the results. Based on his credibility determinations and findings of fact, the judge found defendant guilty of DWI based on his .09 percent blood alcohol concentration. The judge also found defendant guilty of careless driving but merged that charge with the DWI.
        The judge fined defendant $256, suspended his driving privileges for three months, ordered him to spend twelve hours in an intoxicated driver resource center, and imposed appropriate costs and assessments. Defendant appealed to the Law Division.
        Unlike the municipal court judge, the Law Division judge concluded that the Alcotest results were unreliable and
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inadmissible to establish defendant's guilt, thereby finding, implicitly, a reasonable doubt as to the Alcotest results. Nevertheless, the judge found defendant guilty based on the combination of Nicholas's observations of defendant's demeanor and the conclusions the officer derived from defendant's performance on the field sobriety tests. In doing so, the court made a significant credibility determination that was contrary to that of the municipal court judge concerning the reliability of the field sobriety tests.
        In determining that Nicholas had probable cause to make an arrest, the Law Division judge relied heavily upon defendant's poor performance of the field sobriety tests. In its written opinion, the court detailed both the manner in which Nicholas administered the test and the manner in which defendant performed them, or more accurately, failed to perform them. The court then explained:
[Defendant] insists the results of the field sobriety tests are unreliable because the ground was covered with several inches of snow. However, Officer Nicholas testified to only a "dusting" or a "slice of paper" worth of snow. As to the suitability of the testing environment, this court defers to the credibility findings of the municipal court . . . . The municipal court found Officer Nicholas's testimony "to be credible and believable" and his "version of the facts to be true and correct." Here, Officer Nicholas testified the amount of
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snow on the ground was "insignificant" and "did not [affect] the test."

[(emphasis added).]
        Although the court stated that it was deferring to the credibility findings of the municipal court judge concerning the suitability of the testing environment, the municipal court judge had discounted the field sobriety tests after finding that the "testing environment" may have affected the results:
In regard to the officer's testimony in regard to the field sobriety tests, taking his testimony along with the expert's testimony and along with the testimony of the parties as to the location, . . . I do find that the conditions in that location were not ideal conditions. And that the tests were impacted by the conditions in that area.

I do believe the officer, in accordance with his testimony, picked an area with little snow. It wasn't being done . . . in drifts. And there was, as he testified, a slight coating of snow. And I'm satisfied that those conditions would impact testing such as this in regard to weather, snow, and other elements.
        Thus, though stating that it was deferring to the municipal court judge as to the suitability of the testing environment, the court on trial de novo overlooked the municipal court's finding, based on its assessment of the testimony of Nicholas, defendant's expert, and the other witnesses, that the field sobriety tests were performed in a location with less than ideal
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conditions and that the conditions, whether snow and other elements, would impact the testing.
        In determining defendant was guilty of DWI, the Law Division judge stated:
At trial, Officer Nicholas recalled his observations of appellant on the night in question as well as the outcome of the various field sobriety tests. This testimony was consistent with that adduced at the probable cause hearing, and, in the interest of brevity, this court will not reiterate it here.
        With respect to the testimony of defendant's expert, Tafuni, the court acknowledged that he "testified 'the results of the field sobriety tests . . . were compromised due to the improper administration of the testing and also the weather conditions.'" The court rejected, however, Tafuni's reliance on NHTSA standards for conducting sobriety testing, concluding that there was no legal requirement that police officers administer sobriety tests in accordance with the NHTSA. The court further found that "by Mr. Tafuni's own admission, field sobriety tests are not entirely nullified by inclement weather or administration inconsistent with NHTSA procedure." The court then determined that the field sobriety tests were admissible. After reiterating the details of defendant's performance on the tests, the court stated:
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Though he acknowledged eight to ten inches of snow on the grass and "some spots of the parking lot," Officer Nicholas consistently maintained the area on which the tests occurred was "fairly flat and . . . free of debris," and not substantially obscured by snow accumulation:

Officer: [E]ither it was a vehicle that was parked [in the area] that recently moved or the plow just recently went over it. I don't recall . . . But the area was clear.
        The court convicted defendant of DWI. Although the court's opinion does not address the penalties, the parties apparently do not dispute that defendant's sentence was the same imposed by the municipal court judge.
        Defendant raises the following points on this appeal:




1. The Law Division Erred when It Ruled, as a Matter of Law, that It Would Not Consider Whether the Field Sobriety Tests Below Were Conducted in Contravention of NHTSA Testing Standards.

2. The Law Division Failed to Consider the Municipal Trial Court's Finding that the Weather Impacted the Field Sobriety Tests.
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3. The Law Division Erred in Accepting the Inherently Unsound Opinion that Ice Is a Suitable Surface for Testing Balance.

4. The Law Division Erred in Relying on Nicholas's Testimony Regarding the HGN Tests.

5. Nicholas's Testimony Regarding the Field Sobriety Test Results Was Improperly Bolstered by Statistical Studies. (Plain Error).

6. The Law Division Failed to Make Independent Credibility Findings after Rejecting the Municipal Court Assessment of Nicholas's Alcotest Testimony.



        When a defendant appeals a conviction of violating a motor vehicle law following a trial de novo, the scope of our review is both narrow and deferential. State v. Stas, 212 N.J. 37, 48-49 (2012). Our function as a reviewing court is to determine whether the factual findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). When we conclude the findings and conclusions of the Law Division meet that criterion, our "task is complete," and we "should not disturb the result" even if we "might have reached a different conclusion" or if the result was a close one.
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Ibid. We "defer to trial courts' credibility findings that 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, 474 (1999) (citations omitted). "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing Midler v. Heinowitz, 10 N.J. 123, 128—29 (1952).
        In his first point, defendant argues that the field sobriety tests were unreliable and that the Law Division judge erred by ruling to the contrary. We agree with that part of defendant's argument that the Law Division judge overlooked the municipal court's finding, based on its credibility determinations, that the weather conditions affected the field sobriety tests and therefore the results were partially unreliable.
        As previously explained, the Law Division judge appeared to defer to the municipal court findings with respect to the suitability of the "testing environment." The judge did not explain, however, the inconsistency between the statement about deferring to the credibility findings of the municipal court as
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to suitability of the testing environment but disregarding the finding, "that the conditions in that location were not ideal conditions . . . [a]nd that the tests were impacted by the conditions in that area."
        The Law Division judge also appeared to overlook the inadmissibility of HGN test results "as an element of proof to permit the factfinder to conclude that failure of the HGN test, in combination with the failure of coordination tests, sufficiently proves defendant's guilt of driving under the influence of alcohol." Doriguzzisupra, 334 N.J. Super. at 546. In finding defendant guilty of DWI, the court specifically noted that "appellant displayed involuntary jerking of the eyes during the HGN test."
        The discrepancy between the Law Division judge's purported deferral to the municipal court judge as to the suitability of the testing conditions, and the subsequent overlooking of the municipal court's findings, is troubling for another reason. There was undisputed evidence by an expert who once instructed officers on how to perform field sobriety tests that the tests should be performed on a non-slippery surface. The prosecutor produced no foundational evidence that the tests were valid if performed on a snow-covered surface, even if the snow was simply a "light dusting" or "paper thin." This is particularly
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pertinent to tests such as the walk-and-turn and one-legged-stand that may be difficult for some individuals to perform even on dry, unobstructed surfaces. Thus, even if the Law Division judge correctly concluded that there is no requirement that officers administer field sobriety tests in accordance with the NHTSA, the question remains whether the tests are valid if not conducted on non-slippery, unobstructed surfaces. Such evidence was not presented in this case.
        The State argues that "the weather conditions on the night in question [cannot] possibly negate the other observations of drunkenness that the officer testified credibly about and that both the municipal court and Law Division relied upon to find the State had satisfied its burden." As an example, the State points out that the officer observed defendant's eyes to be bloodshot, his face flushed, and an odor of alcohol emanating from his breath. The State also points to defendant's inconsistent statements about whether he drank two beers, three beers, or four beers.
        Clearly, the municipal court judge made an explicit finding that those observations, coupled with the officer's experience, were sufficient to establish defendant's guilt beyond a reasonable doubt. However, on appeal from a trial de novo, we "consider only the action of the Law Division and not that of
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the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). We are unable to discern from the Law Division opinion whether the judge found sufficient evidence to convict defendant in the absence of the defendant's physical performance of the field sobriety tests. Our standard of review does not permit us to speculate that the Law Division judge would have found defendant guilty of DWI beyond a reasonable doubt even in the absence of the field sobriety tests. See Doriguzzisupra, 334 N.J. Super. at 534-35, 547 (requiring a new trial where the municipal court judge and Law Division judge improperly relied on HGN tests in finding defendant guilty of DWI even though the arresting officer had smelled alcohol emanating from defendant's car, defendant's eyes were watery and bloodshot, defendant admitted drinking a couple of beers, and defendant had also failed to properly perform on walk-and-turn and one-legged stand tests).
        Defendant's argument that the prosecution did not establish beyond a reasonable doubt that he committed the offense of careless driving is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Nicholas' observations of defendant's operation of the Jeep, observations which the Law Division judge found credible, are amply supported by credible evidence in the record.
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        For the foregoing reasons, we reverse defendant's DWI conviction and remand this matter to the Law Division for a trial de novo on the record. We affirm defendant's careless driving conviction.
        Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.