NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0489-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANKLIN MARINHO,
Defendant-Appellant.
__________________________
Argued September 28, 2016 – Decided August 21, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Municipal
Appeal No. 001-20-13.
James B. Seplowitz argued the cause for
appellant (Foy & Seplowitz LLC, attorneys; Mr.
Seplowitz, of counsel and on the brief).
Elizabeth R. Rebein, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Gurbir S. Grewal,
Acting Bergen County Prosecutor, attorney;
Jacqueline Choi, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
On September 27, 2012, the North Arlington Municipal Court
found defendant Franklin Marinho guilty of driving while
intoxicated (DWI), N.J.S.A. 39:4-50.1 This was defendant's third
DWI conviction. On October 11, 2012, the municipal court sentenced
defendant pursuant to N.J.S.A. 39:4-50(a)(3) to serve 180 days of
imprisonment in the Bergen County Jail, imposed the mandatory
fines and penalties, revoked defendant's right to operate a motor
vehicle in this State for ten years, and directed him to install
an ignition interlock device that would remain for the ten-year
period of suspension. On that same day, the municipal court
entered an order staying the execution of the sentence, but
excluded the requirement to install the ignition interlock device,
pending the outcome of defendant's appeal for a de novo review
before the Law Division as provided under Rule 3:23-8.2
On August 13, 2013, defendant appeared before the Law Division
represented by private counsel for a trial de novo of his municipal
court conviction. Defendant argued that the municipal court
1
The municipal court also convicted defendant of failing to
produce the vehicle's registration card, N.J.S.A. 39:3-29(b);
delaying traffic, N.J.S.A. 39:4-56; and failing to produce the
insurance identification card, N.J.S.A. 39:3-29(c). Defendant is
not challenging his conviction on these Title 39 infractions in
this appeal.
2
The decision to grant or deny an application for a stay of the
revocation of a defendant's driver's license in DWI cases pending
appeal is now governed by the standards established by the Supreme
Court in State v. Robertson, 228 N.J. 138, 150-52 (2017).
2 A-0489-13T1
violated his constitutional right to a speedy trial because it
took a total of 312 days, consisting of four pretrial court
appearances and six non-sequential trial days, to reach a final
decision. Defense counsel also claimed that unrebutted expert
testimony from a toxicologist established that the arresting
officer's description of defendant as "being passed out behind the
wheel of a car, with vomit on him, was consistent with someone
suffering from carbon monoxide poisoning." Stated differently,
counsel argued that the State did not prove, beyond a reasonable
doubt, that defendant was under the influence of alcohol at the
time of his arrest.
After conducting a de novo review of the record developed
before the municipal court, Rule 3:23-8(a)(2), and applying a
deferential standard of review to the factual findings based on a
witness's credibility, State v. Johnson, 42 N.J. 146, 157 (1964),
the Law Division judge found defendant guilty of DWI. Applying
the four-factor balancing analysis in Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972), the
judge also rejected defendant's speedy trial argument. The Law
Division judge imposed the same sentence as the municipal court
and "stayed all fines/penalties pending appeal," but ordered that
the ignition interlock device remain installed pending and during
the appeal.
3 A-0489-13T1
Defendant filed a Notice of Appeal to this court on September
27, 2013. On September 19, 2014, this court, on its own motion,
entered an order pursuant to Rule 2:5-3(f) remanding the matter
to "the Borough of North Arlington Municipal Court for
reconstruction of the proceedings on April 26, 2012." We directed
the municipal court to complete this task within sixty days.
After the reconstruction of the record was completed, we directed
the Law Division to reconsider its earlier decision.
On May 8, 2015, defendant filed a motion requesting that we
enforce our order dated September 19, 2014. On May 27, 2015, we
granted defendant's unopposed motion, remanded the matter to the
Law Division, and directed the "reconstruction of the record
. . . be completed within thirty (30) days[.]" We stated that we
would grant no further extensions, and again remanded the matter
to the Law Division for reconsideration.
After receiving the reconstructed record from the municipal
court, Judge Susan J. Steele, who was then the Presiding Judge of
the Criminal Part,3 conducted a second trial de novo on January
20, 2016. Judge Steele was not the judge who decided this case
in August 2013. Before hearing the arguments of counsel, Judge
Steele comprehensively reviewed the procedural history of the case
and noted that proceedings before the municipal court were delayed
3
Judge Steele has since retired.
4 A-0489-13T1
a number of times due to technical problems with the audio
recording equipment. The actual trial was also adjourned at
defense counsel's request due to the unavailability of a witness.
Against this procedural backdrop, Judge Steele heard the arguments
of counsel and reserved judgment.
The case reconvened on February 2, 2016, at which time Judge
Steele placed her factual findings on the record and explained the
legal basis for finding defendant guilty of DWI. Based on the
record developed before the municipal court, Judge Steele found
that at approximately 6:00 p.m. on November 20, 2011, defendant
drove to a restaurant located in the Town of Kearny in Hudson
County to eat "his first meal of the day[.]" According to
defendant, he also "consumed five mugs of wine," which he described
as "ten ounce mixed drinks, consisting of half wine and half Seven-
Up."
At approximately 8:00 p.m., James O'Connor, the Chief of
Police of the Township of Lyndhurst in Bergen County, arrived at
the restaurant with a friend. O'Connor was off-duty and had gone
to the restaurant to eat dinner. O'Connor testified as a witness
for the State. Defendant did not know O'Connor before he
encountered him at the restaurant. The two men started talking
while seated at the restaurant's bar. O'Connor testified defendant
struggled to sit on the bar stool and had a "flushed face,
5 A-0489-13T1
bloodshot watery eyes, and slurred speech." Defendant left the
restaurant at approximately 10:00 p.m. Judge Steele found that
after leaving the restaurant, defendant sat in his car for about
fifteen minutes talking to a friend on his cellphone. When the
conversation ended, defendant drove away.
North Arlington Police Officer Joseph Rinzivillo testified
that at approximately 10:46 p.m. on November 20, 2011, he was
driving his marked patrol car southbound on Ridge Road when he
"observed the defendant, Mr. Marinho, asleep at the wheel at a red
light . . . with his head to the steering wheel." When the traffic
light turned to green, Rinzivillo stepped out of the patrol car,
walked toward defendant's car, and knocked "on the window several
times, trying to get Mr. Marinho's attention. He would not wake
up. [Rinzivillo] then proceeded to open Mr. Marinho's door and
he woke up." Rinzivillo testified that he "smelled a strong odor
of alcohol emanating from [defendant's] breath." Rinzivillo then
placed defendant's car in park.
Rinzivillo described what happened next:
Q. You put the vehicle in park.
A. Put his vehicle in park. He was out of it.
Q. Okay. Did he say anything at that time to
you?
A. He did not say anything to me.
. . . .
6 A-0489-13T1
He just woke up stunned.
Q. Okay. Did you make any other observations?
. . . .
A. I saw some vomit on his shirt and a strong
odor of alcoholic beverage emanating from his
breath. The whole car was really, really
strong.
. . . .
I asked Mr. Marinho has he been drinking
tonight. He told me yes, he has. He was out
to dinner in Kearny. I asked him what he
[was] drinking and he said wine, mugs of wine.
Q. Okay. At some point in time did you ask
the defendant to step out of his vehicle?
A. Yes, I did.
. . . .
Q. Tell me what happened when the defendant
came out of his car?
A. He was swaying, staggering and slurring his
speech as I was instructing him to do some
field sobriety testing.
Rinzivillo asked defendant to perform a field sobriety test.
He directed defendant to walk nine steps heel-to-toe with his
hands to the side of his body. When defendant reached the ninth
step, Rinzivillo asked defendant to "turn around and pivot and
walk back nine steps in a straight line[.]" Although he attempted
to perform the test, Rinzivillo testified defendant was unable to
follow the instructions. "He was swaying back and forth, having
7 A-0489-13T1
his arms trying to balance himself. And for his safety, as well
as mine, I had to stop the test." Based on these observations,
Rinzivillo concluded defendant was "highly intoxicated" and placed
him under arrest for DWI. According to Rinzivillo, defendant
"kept apologizing" and said he had had "too much to drink."
Rinzivillo transported defendant in his patrol car to the
North Arlington Police Station. At the station, Rinzivillo read
defendant his Miranda4 rights. Judge Steele found defendant
voluntarily consented to waive his Miranda rights and admitted to
Rinzivillo "that he had consumed five mugs of wine." Judge Steele
found defendant "cried constantly," admitted he drove his car
while intoxicated, stated that he "had too much to drink,"
apologized to the officers, and "begged for the police to release
him."
Defendant claimed he was disoriented and disheveled during
the arrest because he inadvertently inhaled carbon monoxide gas
that had seeped into the interior of his car from a defective
exhaust pipe. According to defendant, he discovered this alleged
problem when he took his car to a mechanic on November 28, 2011,
eight days after his arrest. The mechanic used "a dual smoke
detector carbon monoxide detector" he purchased from Home Depot
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
8 A-0489-13T1
to detect the presence of the gas in the interior compartments of
the car.
Judge Steele found the mechanic "placed the device on the
trunk of the car and determined that the car had an exhaust leak
in the trunk which he repaired." At trial, defendant called Dr.
Gary Lage to establish the physiological effects of inhaling carbon
monoxide gas. Dr. Lage had a Bachelor of Science in Pharmacy from
Drake University, a Master of Science in Pharmacology from the
University of Iowa, and a Doctor of Philosophy in Pharmacology
from the University of Iowa. The municipal court judge admitted
him as an expert in the field of toxicology.
Dr. Lage described the toxicological effects of inhaling
carbon monoxide:
At low levels it'll cause dizziness, vomiting.
At higher levels it'll cause nausea and lack
of coordination. At higher levels it'll cause
sleepiness and even coma, and ultimately
death, and it's not so much the level of carbon
monoxide in the air, but the level of
carboxyhemoglobin. That's the molecule that's
formed once it binds with hemoglobin. As the
concentration of carbonxyhemoglobin goes up,
the toxic effects go up.
Q. And is there any way for a person to notice
that they are inhaling carbon monoxide?
A. No. Just like we don't recognize carbon
dioxide, you don't recognize carbon monoxide.
It has no odor. So there's no way to notice
it. That's why we all have carbon monoxide
detectors in our houses, is because there's
. . . no early warning of the effects.
9 A-0489-13T1
Q. And if someone inhaled carbon monoxide,
. . . setting aside the cases of fatality, can
it cause someone to pass out for instance?
A. Yeah. Sleepiness, dizziness, ultimately
coma, or passing out, whatever word you want
to put to it.
Dr. Lage made clear on cross-examination that his opinion
concerning defendant's exposure to carbon monoxide gas was
predicated on the veracity of the mechanic's report, which stated:
"I believe that carbon monoxide could have gotten into the
passenger compartment from the trunk through the armrest in the
backseat that when placed down leads directly into the trunk."
Dr. Lage conceded he did not know whether the armrest was up or
down at the time defendant was driving his car on November 20,
2011. However, Dr. Lage indicated that carbon monoxide gas could
have seeped into the vehicle's passenger compartment even if the
armrest was down "because it's not going to be a complete seal."
Judge Steele made the following findings with respect to Dr.
Lage's5 testimony:
The doctor, the toxicologists Dr. Lage, was
fully conversant on the physical effects of
carbon monoxide poisoning. However, he relied
on the mechanic's report in coming to the
conclusion that defendant's behavior was
likely the result of exposure to carbon
monoxide rather than alcohol. He did not have
5
The transcript of Judge Steele's oral opinion contains a
typographical error in the spelling of this witness' name. We use
the correct spelling.
10 A-0489-13T1
the opportunity, unfortunately, to observe the
defendant at the relevant time. He did not
have the benefit of blood tests potentially
supporting his theory. And his and the
mechanic's theory of how the gas found its way
into defendant's car I find to be speculative
at best. He seemed to hypothetically say if
this then that, if this then that without
having full information in coming to his
conclusions.
Thus the expert's testimony provides only an
unsupported theory which in this [c]ourt's
opinion does not overcome the cumulative
evidence to the contrary.
Judge Steele found defendant guilty of DWI based on Officer
Rinzivillo's testimony, which she characterized as "replete" with
observations supporting his opinion that defendant was under the
influence of alcohol. Judge Steele found that at the time Officer
Rinzivillo arrested defendant, he had slurred speech, vomit on his
shirt, and was unable to walk unassisted. Defendant was also
unable to
locate any of the necessary documents other
than his driver's license. Packaging that
with his statements at the police station that
he had had too much to drink, along with the
fact that he was found asleep at the wheel,
and most importantly, the fact that there is
a strong smell of alcohol on the defendant's
breath lead me to believe that there is
overwhelming evidence the defendant was under
the influence of alcohol and that the State
met its burden in proving that at trial.
Judge Steele also rejected defendant's speedy trial argument.
Applying the four-factor balancing analysis from Barker v. Wingo,
11 A-0489-13T1
supra, Judge Steele acknowledged that the case had "a circuitous
course over many months[.]" She found that the delays were caused
by "a host of reasons," including, in part, delays in providing
discovery and failure of the court's audio recording system.
Although she did not attribute the delays to defendant "in any
way," Judge Steele found the length of delay was not
"unreasonable."
Judge Steele also found a lack of evidence showing defendant
suffered undue prejudice attributable to the delay. Both defendant
and the State relied on State v. Cahill, 213 N.J. 253 (2013), in
which the Supreme Court acknowledged that in 1984:
Chief Justice Wilentz issued a directive
stating that offenses under N.J.S.A. 39:4-50
(operation of an automobile under the
influence of alcohol or drugs) and N.J.S.A.
39:4-50a (refusal to submit to a chemical
test) "must be disposed of within [sixty] days
of filing. "Administrative Directive #1-84
(July 26, 1984) (Directive #1-84). Directive
#1-84 explained that the sixty-day period was
designed to reduce the backlog of those cases
and to protect the public from the havoc
wrought by intoxicated drivers. Ibid.
Directive #1-84 also emphasized the sixty-day
period was a goal, did not replace "the
traditional guidelines established through
case law for dismissals based on lack of a
speedy trial," and should not be invoked at
the expense of other court efforts to achieve
speedy disposition "of more serious disorderly
persons complaints." Ibid.
[Id. at 269.]
12 A-0489-13T1
Citing Cahill, Judge Steele correctly noted that Directive
#1-84 established a "dispositional goal" and the Court in Cahill
made clear that it "has steadfastly declined to adopt a bright-
line try-or-dismiss rule." Id. at 270. In short, Judge Steele
was "not persuaded" that defendant's due process right to a speedy
trial was violated.
Against this record, defendant now raises the following
arguments.
POINT I
THE COURT BELOW ERRED IN BALANCING THE SPEEDY
TRIAL FACTORS AND THE CHARGES AGAINST FRANKLIN
MARINHO SHOULD HAVE BEEN DISMISSED BECAUSE HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WAS
VIOLATED.
POINT II
THE COURT BELOW ERRED IN FINDING FRANKLIN
MARINHO GUILTY OF DWI BEYOND A REASONABLE
DOUBT BY DISREGARDING THE UNREBUTTED DEFENSE
EXPERT TESTIMONY AND THE FACT THAT FRANKLIN
MARINHO'S UNCONSCIOUS STATE AND DETERIORATED
CONDITION WAS MORE CONSISTENT WITH CARBON
MONOXIDE POISONING THAN WITH BEING UNDER THE
INFLUENCE OF ALCOHOL.
POINT III
FRANKLIN MARINHO'S DWI CONVICTION SHOULD BE
OVERTURNED BECAUSE THE LAW DIVISION JUDGE
ERRED IN CONSIDERING AN IMPROPERLY ADMITTED
ALLEGED STATEMENT AGAINST INTEREST BY MR.
MARINHO THAT WAS NOT DISCLOSED TO THE DEFENSE
PRIOR TO TRIAL AND WHICH MR. MARINHO WAS
PREVENTED FROM REBUTTING THROUGH HIS EXPERT
WITNESS.
13 A-0489-13T1
N.J.S.A. 39:4-50(a) prohibits the operation of a motor
vehicle under the influence of intoxicating liquor. The phrase
"under the influence" generally means a substantial deterioration
or diminution of the mental faculties or physical capabilities of
a person. State v. Tamburro, 68 N.J. 414, 420 (1975). In cases
involving intoxicating liquor, "under the influence" means a
condition that affects a motorist's judgment or control "as to
make it improper for him to drive on the highway." Johnson, supra,
42 N.J. at 165. After carefully reviewing the record developed
in this case, we affirm substantially for the reasons expressed
by Judge Steele in her oral opinion delivered from the bench on
February 2, 2016. Judge Steele's factual findings are well-
supported by the competent evidence in the record. State v. Cryan,
363 N.J. Super. 442, 454-55 (App. Div. 2003).
We nevertheless briefly address defendant's speedy trial
argument. In Cahill, the Court noted that "prejudice is assessed
in the context of the interests the right [to a speedy trial] is
designed to protect. Those interests include prevention of
oppressive incarceration, minimization of anxiety attributable to
unresolved charges, and limitation of the possibility of
impairment of the defense." Cahill, supra, 213 N.J. at 266
(citations omitted).
14 A-0489-13T1
Here, counting from the date of defendant's arrest, 312 days
passed before the municipal court judge provided his reasons for
finding defendant guilty. As is the case in the overwhelming
number of DWI cases, defendant was released immediately after the
police cataloged his arrest. However, unlike most cases in which
a defendant is convicted of DWI for a third time, defendant has
retained his driving privileges, has not served a single day of
his 180-day sentence, and has not paid any of the mandatory fines
or penalties imposed by the court. Given the overwhelming evidence
of intoxication that Judge Steele correctly found in support of
defendant's conviction, any delay in bringing this case to
conclusion has inured to defendant's benefit.
Affirmed.
15 A-0489-13T1