STATE OF NEW JERSEY VS. DEBORAH HARRIS (06-05-18, CAPE MAY COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5499-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEBORAH HARRIS,
Defendant-Appellant.
_________________________
Submitted October 14, 2020 – Decided October 26, 2020
Before Judges Yannotti, Haas, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Municipal Appeal No. 06-
05-18.
Jacobs & Barbone, PA, attorneys for appellant (Louis
M. Barbone, on the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Edward B. Simonson,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant appeals from the August 15, 2019 Law Division order finding
her guilty of refusal to submit to a breath test contrary to N.J.S.A. 39:4 -50.4a.
We affirm.
The procedural history and facts of this case are set forth at length in Judge
Sara Beth Johnson's comprehensive written decision and need not be repeated
here in the same level of detail.
Shortly after 8:00 p.m. on September 3, 2017, defendant drove her car into
the passenger side of a vehicle that was stopped at a red light. After the impact,
defendant did not get out of her car for five to ten minutes. When she finally
did so, she said "hi" to the other driver, looked at the driver's side of the vehicle
she hit, and then got back into her own car.
Officer Jamie Fearnhead arrived at the scene a few minutes later. After
speaking to the occupants of the other vehicle, Officer Fearnhead tapped on the
window of defendant's car to get her attention. Defendant lowered her window
and the officer saw that she was holding her registration and insurance card in
her hand. Defendant told the officer that she did not know what had happened
but explained that she "may have tapped" the other vehicle.
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Officer Fearnhead noticed that defendant's eyes were glassy, and her
speech was slurred. She was stuttering and appeared confused. Defendant
stated she had not consumed any alcohol or taken any medication that night.
Officer Fearnhead asked defendant to get out of her car and when the
officer had the chance to stand next to defendant, she detected a "strong" smell
of alcohol emanating from defendant. When the officer again asked defendant
if she had consumed any alcohol, defendant replied, "Not really."
Officer Fearnhead performed two field sobriety tests, which defendant
was unable to successfully complete. 1 She also administered the Horizontal
Gaze Nystagmus (HGN) test, which suggested that defendant was driving under
the influence (DUI). The officer then arrested defendant for DUI, N.J.S.A. 39:4-
50, and transported her to the police station in Ocean City. Officer Fearnhead
testified that during the drive, "[a] strong odor of alcohol filled the vehicle."
At the station, Officer Fearnhead read the standard nine-paragraph
statement to defendant about the breath test. As she read each paragraph, the
officer observed that defendant was "alert, paying attention, and appeared to
understand what she was being told." When the officer got to the last paragraph
1
Another officer who was at the scene with Officer Fearnhead testified that he
also detected the smell of alcohol coming from defendant as she performed the
field sobriety tests.
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and asked defendant whether she would submit to the test, defendant refused to
do so.
When Officer Fearnhead attempted to record defendant's refusal into the
breath test device at the Ocean City station, she found it was not functioning.
Therefore, the officer transported defendant to the Somers Point station.
At that station, the officer again read defendant the nine-paragraph
statement. At first, defendant stated she would submit a breath sample.
However, when Officer Fearnhead asked defendant to breath into the device, she
refused and told the officer she wanted to return to the Ocean City station.
Officer Fearnhead advised defendant this was not possible, and again asked her
if she would submit to the test. Defendant refused to do so. The officer charged
defendant with refusal, DUI, and careless driving, N.J.S.A. 39:4-97.
While the officer was processing defendant, she provided defendant with
the Miranda2 warnings. After listening to the warnings, defendant exercised her
right to counsel and all questioning ended.
Defendant did not testify at the municipal court trial. However, her
fiancé's daughter, N.R.,3 stated she spent the day on September 3, 2017 with
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
We use initials to protect the privacy of N.R. and her sister, S.R.
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defendant on the beach and did not see her drinking any alcohol during that time.
Defendant left the beach at approximately 5:30 p.m. About seventy-five minutes
later, N.R. joined her father and defendant at a restaurant. Both had a glass of
wine in front of them when she arrived. The group remained at the restaurant
for approximately ninety minutes. N.R. testified that defendant only drank one
glass of wine during the evening. N.R. stated defendant told her she was going
to get some ice cream as she left the restaurant alone in her own car.
On September 27, 2017, S.R. called for an ambulance after defendant
began acting "very confused." S.R. stated that defendant regained her
composure shortly after arriving at the hospital.
In early October 2017, defendant had surgery to remove a glioblastoma 4
from her brain. Defendant's medical expert, Lawrence Guzzardi, M.D., testified
that based upon his review of defendant's records, the tumor was located in an
area of defendant's brain that controls "thought process." According to Dr.
Guzzardi, the tumor was present and affected defendant on September 3, 2017
when she struck the other vehicle and refused to submit to the breath test. Dr.
Guzzardi asserted that defendant began to experience headaches and confusion,
4
A glioblastoma is a cancerous tumor.
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spatial abnormalities, problems with memory, gait instability, visual
impairment, and other symptoms as early as July 2017.
However, the expert admitted on cross-examination that prior to the full
manifestation of defendant's symptoms on September 27, 2017, any periods of
confusion were "intermittent" and were not "frequent" or "severe." He also
conceded that without having conducted a CT scan of defendant on September
3, it was difficult to determine how severe the tumor was at that time, and to
what degree the tumor contributed to any confusion she exhibited during her
interactions with Officer Fearnhead.
Under these circumstances, the municipal court judge found defendant not
guilty of DUI, but guilty of refusing to provide the breath sample, and careless
driving. Defendant appealed to the Law Division, which affirmed defendant's
convictions.
In her thorough written decision, Judge Johnson made detailed findings of
fact and conclusions of law. The judge found that Officer Fearnhead observed
that defendant's eyes were glassy, she was slurring her speech and smelled of
alcohol, and the officer properly conducted field sobriety tests. The judge
further found that once defendant failed to successfully complete those tests, the
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officer had probable cause to arrest defendant and require her to submit to a
breath test.
At the station, defendant expressed no confusion as to the information
Officer Fearnhead read to her concerning the test. She listened attentively and
then refused to take the breath test at the Ocean City station and again at the
Somers Point station. Therefore, Judge Johnson concluded that defendant was
guilty of refusing to take the breath test in violation of N.J.S.A. 39:4 -50.4a.
In so ruling, the judge considered and rejected defendant's argument that
she was unable to "cognitively process and exercise her normal judgment" on
September 3 because of the tumor that was discovered twenty-four days later.
Judge Johnson found, as the municipal court judge did before her, that any issues
caused by the growing tumor were "sporadic and temporary" on the date of the
accident and "did not manifest themselves to even [d]efendant's closest
acquaintances until September 27, 2017 when [d]efendant received the
diagnosis."
Thus, the evidence did not establish "that [d]efendant was confused and
disoriented throughout her entire interaction with [the] officers on the evening
of September 3, which lasted more than [two] hours." Instead, Judge Johnson
determined that Officer Fearnhead's testimony "proved beyond a reasonable
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doubt" that defendant understood she was required to take the breath test, knew
the consequences if she refused to do so, and "knowingly and voluntarily refused
to provide breath samples when asked."
Judge Johnson imposed the same sentence as the municipal court: a
seven-month driver's license suspension, twelve hours in the Intoxicated Driver
Resource Center, and various fines, assessments, and surcharges. The judge also
required defendant to install an Interlock device on her car during the seven -
month period of her suspension and for six months thereafter. 5 This appeal
followed.
On appeal, defendant raises the following contentions:
Point I
While the Normal Standard of Review on a Trial De
Novo Is Whether There Is "Sufficient Credible
Evidence" in the Record, the De Novo Court's
Interpretation of the Law and Legal Consequences That
Flow Therefrom Are Subject to Plenary Review. (Not
Raised Below).
Point II
Defendant's Confusion Because of a Brain Tumor
Presented a Valid Defense to the Charge of Refusal, and
the Court Failed to Consider, and then Hold, the State
to a Standard of Proof Beyond a Reasonable Doubt.
5
The judge stayed the suspension pending appeal, but required defendant to
install an Interlock device in her car.
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Point III
Defendant Harris Proved That She Was Physically and
Neurologically Incapable of Consent and the Exercise
of Voluntary Judgment by More Than a Preponderance
of Evidence, and the State Failed to Disprove Her Non-
Refusal Beyond [a] Reasonable Doubt.
On appeal from a Law Division decision following a de novo municipal
court appeal, the issue is whether there is "sufficient credible evidence present
in the record" to uphold the findings of the Law Division, not the municipal
court. State v. Johnson, 42 N.J. 146, 162 (1964). However, as in the Law
Division, we are not in as good a position as the municipal court judge to
determine credibility and, therefore, we "give deference to those findings of the
trial judge which are substantially influenced by his [or her] opportunity to hear
and see the witnesses and to have the 'feel' of the case, which a reviewing court
cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (citation omitted).
Thus, "[w]e do not weigh the evidence, assess the credibility of witnesses,
or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615
(1997). When we are satisfied that the findings and conclusions of the Law
Division are supported by sufficient credible evidence, our "task is complete and
[we] should not disturb the result, even though [we] . . . might have reached a
different conclusion" or if the result was "a close one." Johnson, 42 N.J. at 162.
A-5499-18T1
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Given our standard of review, we are satisfied that the record contains ample
credible evidence from which Judge Johnson could have found defendant guilty
of refusal to provide a breath test.
The refusal statute, N.J.S.A. 39:4-50.4a(a), provides:
The municipal court shall determine by a
preponderance of the evidence whether the arresting
officer had probable cause to believe that the person
had been driving or was in actual physical control of a
motor vehicle on the public highways or quasi-public
areas of this State while the person was under the
influence of intoxicating liquor . . . ; whether the person
was placed under arrest, if appropriate, and whether he
[or she] refused to submit to the test upon request of the
officer.
Although the statute sets forth a standard of preponderance of the evidence,
"because a breathalyzer refusal case is properly a quasi-criminal matter, the
constitutionally required burden of proof is the one applicable to criminal cases:
proof beyond a reasonable doubt." State v. Cummings, 184 N.J. 84, 89 (2005).
Thus, to secure a conviction under the refusal statute, the State must prove
beyond a reasonable doubt that "(1) the arresting officer had probab le cause to
believe that defendant had been operating a vehicle while under the influence of
alcohol; (2) defendant was arrested for driving while intoxicated; and (3)
defendant refused to submit to a breathalyzer test." State v. Badessa, 185 N.J.
303, 312 (2005) (quoting State v. Wright, 107 N.J. 488, 490 (1987)).
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While the State must prove guilt beyond a reasonable doubt, Cummings,
184 N.J. at 89, probable cause to arrest is a lower threshold, i.e., "a well -
grounded suspicion that a crime has been or is being committed" by the
defendant. State v. Marshall, 199 N.J. 602, 610 (2009) (citation omitted).
"Probable cause exists where the facts and circumstances within . . . [the
officers'] knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a [person] of reasonable caution in the
belief that an offense has been or is being committed." Ibid. (alterations in
original) (citation omitted). Although it is difficult to define the concept with
precision, probable cause requires "more than a mere suspicion of guilt," but
less than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010)
(citations omitted).
Probable cause for driving under the influence will be found where an
officer "had reasonable grounds to believe that the driver was operating a motor
vehicle in violation" of the DUI statute. State v. Moskal, 246 N.J. Super. 12, 21
(App. Div. 1991) (citation omitted). In assessing probable cause, a judge
considers the totality of the circumstances. State v. Moore, 181 N.J. 40, 46
(2004). They are viewed "from the standpoint of an objectively reasonable
police officer." Basil, 202 N.J. at 585 (citation omitted).
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Applying these principles, we discern no basis for disturbing the findings
and conclusions contained in Judge Johnson's thoughtful written opinion. Her
analysis of the issues was comprehensive and correct. Accordingly, we affirm
defendant's conviction substantially for the reasons the judge set forth in her
decision and add the following comments.
Judge Johnson's conclusion that probable cause existed for defendant's
arrest for DUI was well supported by the record. Defendant's demeanor, slurred
speech, and glassy eyes, together with the strong odor of alcohol emanating from
defendant and her failure to successfully perform the field sobriety tests,
established sufficient grounds for an objectively reasonable police officer to
believe that defendant had operated her car in violation of the DUI statute. Basil,
202 N.J. at 585. The fact that the municipal court judge ultimately found there
was reasonable doubt as to defendant's guilt on the DUI charge, does not defeat
a finding of probable cause when, as here, sufficient facts exist to establish a
well-grounded suspicion that defendant drove her car while under the influence.
Wright, 107 N.J. at 502-04.
There was also ample evidence in the record to support the judge's
determination beyond a reasonable doubt that defendant knowingly refused to
take the breath test at each police station. As she did before the trial court,
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defendant asserts that the judge should have adopted Dr. Guzzardi's opinion that
she was too confused throughout the entirety of the events on September 3, 2017
to understand the ramifications of refusing to undergo the test. We disagree.
"[W]e rely on the trial [judge's] acceptance of the credibility of [an]
expert's testimony and the court's fact-findings based thereon, noting that the
trial court is better positioned to evaluate the witness' credibility, qualifications,
and the weight to be accorded [his] testimony." In re D.M.H., 161 N.J. 365, 382
(1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).
Applying this standard, we are satisfied that Judge Johnson properly discounted
the testimony presented by defendant's expert.
Contrary to defendant's contention, Judge Johnson was not required to
accept Dr. Guzzardi's opinion at face value. While the expert opined that
defendant was suffering from the effects of the glioblastoma at the accident
scene, and later when she twice refused to take a breath test, he conceded that
any "confusion" she may have experienced on September 3 would have been
intermittent and not frequent or severe.
Moreover, the record fully supports Judge Johnson's conclusion that
defendant was not "confused and disoriented" during her interactions with
Officer Fearnhead at the two police stations where defendant refused to sub mit
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to the test. Defendant listened attentively to the officer as she read the nine -
paragraph statement to defendant at each station, did not indicate any confusion
as to the substance of the information provided to her, and answered the officer's
inquiries at the end of each statement. Defendant was aware that she had been
transported from one police station to another and, after she was charged with
violating N.J.S.A. 39:4-50.4a, indicated that she understood her Miranda rights
and exercised them by requesting an attorney. Therefore, we reject defendant's
contention on this point.
Affirmed.
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