STATE OF NEW JERSEY VS. DANIEL GONZALEZ (18-2019, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4366-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL GONZALEZ,

Defendant-Appellant.
_______________________

Submitted September 20, 2021 – Decided September 24, 2021

Before Judges Fasciale and Vernoia.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 18-
2019.

Galantucci & Patuto, attorneys for appellant (S. Emile
Lisboa, IV, on the brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Patrick F. Galdieri, II,
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Following a de novo trial on an appeal from the Sayreville municipal

court, the Law Division found defendant Daniel Gonzalez guilty of driving

under the influence of an intoxicating liquor (DUI), N.J.S.A. 39:4-50, and

sentenced defendant to a seven-month driver's license suspension and other fines

and penalties. Defendant appeals from his conviction and sentence, arguing the

court erred by denying his motion to suppress the results of Alcotest breath tests

because the police lacked probable cause to arrest him for DUI. Defendant

further claims the court erred by admitting the Alcotest results because the

police did not administer the tests in accordance with the requirements

established in State v. Chun, 194 N.J. 54 (2008). Defendant last argues the court

erred by failing to sentence him in accordance with reduced penalties for DUI

enacted after his arrest but prior to his conviction and sentencing. We find no

merit to defendant's arguments and affirm.

I.

On August 8, 2017, Perth Amboy police arrested defendant and charged

him with DUI and interference with traffic, N.J.S.A. 39:4-56. The police

administered Alcotest breath tests that showed defendant had a blood alcohol

content (BAC) of 0.12 percent. Defendant moved to suppress the Alcotest

results, arguing they were obtained following an arrest for which there was no

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probable cause. The municipal court conducted a hearing and heard testimony

from Carlos Javier Delarosa, and Perth Amboy police officers Jarrod Reynolds

and Rafael Bengochea, Jr. The court denied the suppression motion and held a

trial on the offenses charged. 1

The parties stipulated to the admission at trial of the testimony and

evidence presented at the suppression hearing. In addition to that evidence, the

State again called Officer Reynolds and it presented Perth Amboy police

sergeant Emma Cabrera, who administered the Alcotest breath tests to defendant

following his arrest. Defendant called Joseph Tafuni, who testified as an expert

in the administration of field sobriety tests and the Alcotest breath tests.

In a decision from the bench, the municipal court found defendant guilty

of DUI based on the Alcotest results and, separately, on the officers' and

Delarosa's observations of defendant. The court later imposed sentence, and

stayed the sentence pending defendant's appeal to the Law Division.

Following the trial de novo in the Law Division, Judge Robert J. Jones

issued a detailed and thorough written decision. Based on the evidence

1
The appendix and transcripts included in the record on appeal do not include
the municipal court's decision denying defendant's suppression motion or an
order denying the motion. The parties, however, agree the municipal court
denied the motion.
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presented and his credibility determinations, Judge Jones found that at about

2:25 a.m. on August 8, 2017, an individual, who the evidence established was

Delarosa, called the Perth Amboy police department and reported he was behind

a Dodge Durango at a red light, and the Durango had not moved even though

the light had changed three or four times and he had been "honking his horn."

Delarosa reported he pulled alongside the Durango and looked in its window.

Delarosa told the police he feared the driver of the Durango "had suffered a heart

attack."

Judge Jones found Officer Reynolds responded to the scene, looked inside

the Durango and saw the driver, later identified as defendant, asleep and

slumped over the wheel. The Durango was in gear, and defendant had his foot

on the brake. Officer Reynolds tapped on the vehicle's window with a flashlight

and used the flashlight's "strobe feature" in attempts to awaken defendant, who

did not immediately respond. When defendant finally awoke, he lifted his foot

from the brake, and the Durango lurched forward, almost striking Officer

Reynolds's partner, who stood in front of the vehicle.

Judge Jones found defendant rolled down the window and attempted to

open the driver's side door. At that time, Officer Reynolds detected a strong

odor of alcohol, and Officer Reynolds observed defendant's flushed face and

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watery eyes. The court noted that Officer Bengochea, who was also present at

the scene, testified that he smelled alcohol emanating from defendant. The

officers testified they observed defendant swaying as he exited the vehicle, and

the court reviewed a video recording of the stop entered in evidence that showed

"minor swaying" by defendant.

The court also noted defendant refused to perform the walk-and-turn and

one-leg-stand field sobriety tests at the scene, claiming a leg injury precluded

him from doing so. Officer Bengochea performed the horizontal gaze

nystagmus (HGN) test, but he did not explain either how it was performed or

what he observed when he performed it. Judge Jones stated he would not

consider the test in his determinations of both probable cause for defendant's

arrest and defendant's guilt or innocence.

The court, however, described Officer Bengochea's administration of the

alphabet test, noting the officer asked defendant to recite a portion of the

alphabet. The court found that based on its consideration of the testimony an d

a video recording of the test, defendant "failed to follow the instructions" given,

and that Officer Bengochea viewed the failure as "show[ing] a lack of

attentiveness."

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 Judge Jones then summarized the evidence concerning the administration

of the Alcotest breath tests at the police station following defendant's arrest. The

court made detailed findings concerning the twenty-minute waiting period prior

to administration of the tests, the officers' observations of defendant during the

waiting period, and Sergeant Cabrera's administration of the tests.

Judge Jones further addressed, and rejected, defendant's claim the police

did not have probable cause to arrest him for DUI. The court noted the police

found defendant "inexplicably" "passed-out asleep at the wheel of his car while

stopped at a traffic light," with "his foot on the brake" and his vehicle "in gear."

The court further found the police could not wake defendant "even by tapping

on the window with a flashlight and flashing a strobe in his face," and when he

finally did awake, defendant almost ran over an officer who stood in front of his

vehicle. The court also found that when it became clear defendant did not suffer

a medical emergency, the police spoke to defendant and he "reeked of alcohol."

The court concluded that "[t]h[o]se things, combined with [defendant's

appearance], provided more than ample probable cause to arrest" defendant for

DUI.

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 The court found the same evidence supported a DUI conviction based on

the observations of defendant. The court listed the following observations

supporting its determination defendant was guilty of DUI:

[Defendant] was found passed out at the wheel of his
Durango at 2:25 a.m.

There was no evidence that [defendant] suffered any
type of medical emergency . . . .

[Defendant] had been at the light for some time—long
enough for [Delarosa] to call the police and for them to
arrive at the scene.

The light cycled several times and [defendant] still
stayed there.

After [Delarosa] honked his horn, [defendant] still did
not wake up.

[Defendant] also did not wake up after police tapped on
the window and shined the strobe light on him.

Upon awakening, [defendant] took his foot off the
brake, causing the Durango to lurch forward and almost
hit one of the officers.

[Defendant] smelled of alcohol.

[Defendant's] face was flushed, his eyes were watery,
and he swayed slightly . . . getting out of his Durango.

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The court determined the listed observations provided "compelling" evidence

defendant was intoxicated, and the court found beyond a reasonable doubt that

defendant "drove drunk on the night [the] police arrested him."

The court also concluded the evidence established a per se violation of

N.J.S.A. 39:4-50 because the Alcotest results showed defendant had a BAC of

0.12 percent. The court made detailed findings of fact concerning the process

the police followed in the administration of the Alcotest breath tests, and the

court found the credible evidence did not support defendant's claims the police

failed to properly conduct the required twenty-minute observation period; the

police failed to remove all electronic devices from the area in which the breath

tests were conducted; and the Alcotest device failed to lock out for two minutes

between each test. Judge Jones found "no merit in [defendant's] challenge to

the reliability of the Alcotest results" and concluded the results established

defendant's guilt under N.J.S.A. 39:4-50 beyond a reasonable doubt.

Judge Jones also rejected defendant's claim that a December 1, 2019

amendment to N.J.S.A. 39:4-50, which reduced some of the penalties for a DUI

offense, applied to defendant's conviction. As the court explained, the

amendment was enacted on August 23, 2019, became effective on December 1,

A-4366-19
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2019, and applied "to any offense occurring on or after that date."2 L.2019, c.

248, § 7, eff. Dec. 1, 2019. The court determined the amendment did not apply

to defendant because his offense occurred on August 8, 2017, prior to the

amendment's plainly stated effective date. Thus, the court sentenced defendant

in accordance with "the statute as it existed when [defendant's] offense took

place in 2017."

The court later imposed the same sentence as the municipal court, and

stayed the sentence pending appeal. This appeal followed.

II.

In an appeal from a Law Division decision following a de novo trial on an

appeal from a municipal court, we consider only the action of the Law Division

and not that of the municipal court. State v. Locurto, 157 N.J. 463, 470 (1999).

We do not "'weigh the evidence, assess the creditability of witnesses, or make

conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J.

599, 615 (1997)). "We are limited to determining whether the Law Division's

de novo findings 'could reasonably have been reached on sufficient credible

evidence presented in the record.'" State v. Burkert, 444 N.J. Super. 591, 598

2
The amendment stated that it became effective "on the first day of the fourth
month after enactment," which is December 1, 2019. L. 2019, c. 248, § 7.

A-4366-19
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(App. Div. 2016) (quoting State v. Palma, 426 N.J. Super. 510, 514 (App. Div.

2012)); see also State v. Johnson, 42 N.J. 146, 162 (1964). The Law Division's

legal conclusions and the legal consequences that flow from established facts

are not entitled to special deference; they are reviewed de novo. State v.

Goodwin, 224 N.J. 102, 110 (2016).

Defendant first claims the Law Division erred by not suppressing the

Alcotest results obtained following his arrest because the officers did not have

probable cause to arrest him. Defendant argues the officers lacked probable

cause because: Officer Bengochea did not know how to properly evaluate certain

field-sobriety tests, including the walk-and-turn test and the one-leg stand test;

and the officers arrested him in part based on his performance on the HGN test,

which defendant argues is "[j]unk [s]cience" and should not have been

considered by the trial court "for [a]ny [p]urpose."3 These arguments are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). We offer only the following limited comments.

3
Officer Bengochea did not explain why defendant's performance on the HGN
test caused him to conclude defendant was intoxicated. He testified only that it
contributed to his recommendation to the other officers to arrest defendant for
DUI.
A-4366-19
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 Officer Bengochea's alleged lack of knowledge concerning the proper

administration of the walk-and-turn and one-leg stand field sobriety tests does

not undermine the court's probable cause finding. Officer Bengochea never

administered those tests; he could not, and did not, offer any testimony

concerning defendant's performance of the tests; and Judge Jones did not rely

on those tests in determining there was probable cause for defendant's arrest.

Similarly, defendant's contention Officer Bengochea's administration of

the HGN test did not support probable cause for defendant's arrest ignores that

Judge Jones expressly stated he did not consider the administration of that test

in his probable cause determination. Thus, the HGN test played no part in the

court's finding there was probable cause to arrest defendant for DUI.

Moreover, Judge Jones's finding there was probable cause for defendant's

arrest is amply supported by sufficient credible evidence. "In determining

whether there was probable cause to make an arrest, a court must look to the

totality of the circumstances and view those circumstances 'from the standpoint

of an objectively reasonable police officer.'" State v. Basil, 202 N.J. 570, 585

(2010) (citations 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

A-4366-19
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[person] of reasonable caution in the belief that an offense has been or is being

committed." State v. Moore, 181 N.J. 40, 46 (2004) (alterations in original)

(quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)). "[A] showing of

probable cause to arrest for DWI only require[s] proof by a fair preponderance

of the evidence." Karins v. Atl. City, 152 N.J. 532, 559 (1998) (citations

omitted).

"[E]vidence of slurred speech, loud and abrasive behavior, disheveled

appearance, red and bloodshot eyes[,] and [a] strong odor of [an] alcoholic

beverage on [a] defendant's breath [is] sufficient to sustain a conviction for

DWI." State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003) (emphasis

added); see also State v. Bealor, 187 N.J. 574, 588 (2006) (explaining "a

conviction for [DUI] . . . will be sustained on proofs of the fact of intoxication—

a defendant's demeanor and physical appearance—coupled with proofs as to the

cause of intoxication—i.e., the smell of alcohol, an admission of the

consumption of alcohol, or a lay opinion of alcohol intoxication"); id. at 588-89

(finding a DUI conviction may be sustained "based on [the] defendant's 'driving

without his headlights on' and [a] police officer's observations of [the]

defendant's 'strong odor of alcohol on [the] defendant's breath[,]' 'swaying as

[the defendant] walked[,]' inability to perform physical coordination test, slurred

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speech, and combativeness" (quoting State v. Cleverley, 348 N.J. Super. 455,

465 (App. Div. 2002))); State v. Oliveri, 336 N.J. Super. 244, 251-52 (App. Div.

2001) (affirming a DWI conviction based on an officer's testimony the

"defendant's eyes were watery and his speech slow and slurred"; the

"[d]efendant staggered a little as he walked" and "had difficulty with his

balance"; the defendant did not follow the officer's instructions in performing

certain field sobriety tests, including the officer's instructions "to recite the

alphabet from D to S," following which the "defendant went to V and 'missed

several letters in between'"; and the officer "had to make 'a few' requests for

[the] defendant to exit the vehicle before [the] defendant did so").

Judge Jones detailed the testimony and observations of the State's

witnesses, and his findings need not be repeated here. It is sufficient to note

"defendant's demeanor and physical appearance[,] . . . coupled with . . . the

smell of alcohol . . . [and the officers'] opinion[s] of [defendant's] alcohol

intoxication," established probable cause to arrest defendant for DUI in violation

of N.J.S.A. 39:4-50. Bealor, 187 N.J. at 588; see also Cleverley, 348 N.J. Super.

at 465.

We are further convinced that, for the same reasons, the witnesses'

observations of defendant support the court's finding defendant is guilty of DUI

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by operating his vehicle after consuming an amount of alcohol "which so

affect[ed his] judgment or control . . . 'as to make it improper for him to driving

on the highway.'" Cryan, 363 N.J. Super. at 455 (quoting Johnson, 42 N.J. at

165). We therefore affirm defendant's DUI conviction based on the witnesses'

observations alone. See State v. Zeikel, 423 N.J. Super. 34, 48 (App. Div. 2011)

(explaining DUI may be proven by showing either the defendant "operat[ed] a

motor vehicle while under the influence of intoxicating liquor" or "operat[ed] a

motor vehicle with a [BAC] of 0.08 [percent] or more" (quoting N.J.S.A. 39:4-

50(a))).

As noted, the court separately determined defendant is guilty of a per se

violation of N.J.S.A. 39:4-50 based on the Alcotest results showing defendant's

BAC of 0.12 percent. See ibid. Defendant challenges the court's reliance on the

Alcotest results, arguing the officers violated the requirements for admission of

the results established in Chun by failing to: inspect defendant's mouth prior to

administration of the breath tests; remove all electronics from the area in which

Sergeant Cabrera administered the tests; and comply with what defendant

contends is a "[two-]minute lockout" requirement between tests.

We reject defendant's claim an oral cavity search of a defendant was

required prior to the administration of the Alcotest breath tests. The Court in

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Chun did not condition the admissibility of Alcotest results on such a search.

Rather, Chun requires only that an officer observe an arrestee during a twenty-

minute period prior to the test "to ensure that no alcohol has entered the person's

mouth while he or she is awaiting the start of the testing sequence." 194 N.J. at

79. The Court further held that if an arrestee "swallows anything or regurgitates,

or if the operator notices chewing gum or tobacco in the person's mouth, the

operator is required to begin counting the twenty-minute period anew." Ibid.;

see also State v. Ugrovics, 410 N.J. Super. 482, 484-85 (App. Div. 2009) (noting

admissibility of Alcotest results requires the State to establish only "that the test

subject did not ingest, regurgitate[,] or place anything in his or her mouth that

may compromise the reliability of the test results for a period of at least twenty

minutes prior to the administration of the Alcotest").

The court considered Officer Reynolds's and Sergeant Cabrera's testimony

concerning their observations of defendant during the twenty-minute period, and

the court reviewed a video recording of the twenty-minute period. Judge Jones

found no evidence defendant placed anything his mouth, or regurgitated, during

that period. He also rejected the claim that defendant placed his hands in his

mouth during the period, finding instead defendant only touched his face during

the twenty minutes prior to the commencement of the administration of the

A-4366-19
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breath tests. We defer to those findings because they are supported by sufficient

credible evidence. State v. Heisler, 422 N.J. Super. 399, 412 (App. Div. 2011).

Those findings do not permit or require a determination the Alcotest results were

inadmissible under the standards established in Chun.

Defendant also contends the Alcotest results were unreliable because

Sergeant Cabrera failed to comply with a "two . . . minute lockout requirement"

between tests. In the first instance, as Judge Jones correctly noted, Chun does

not require a two-minute lock out of the Alcotest device between the

administration of breath tests as a condition of establishing the reliability and

admissibility of the Alcotest results. Indeed, defendant cites to no legal

authority establishing such a requirement.

Additionally, in support of his contention, defendant relies on Tafuni's

testimony interpreting an Alcotest Alcohol Influence Report that Tafuni claimed

showed there was only one minute between defendant's breath tests. The court,

however, considered Tafuni's testimony, conducted its own analysis of the

report, and found Tafuni's testimony was in error because "the times Tafuni

used" were not accurate. Based on its review of the entries in the report, the

court found the first breath test ended at 4:18 a.m. and the second test did not

begin until 4:21 a.m. Thus, the court determined that at least two minutes

A-4366-19
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elapsed between the tests, and it rejected defendant's claim to the contrary.

Thus, even if Chun required a two-minute lockout of the Alcotest device

between the breath tests, the evidence the court found credible establishes a

lockout of at least two minutes occurred. We defer to the court's findings,

Heisler, 422 N.J. Super. at 412, and discern no basis to reverse the court's

admission of the Alcotest results in evidence. Those results—demonstrating a

BAC of 0.12 percent—establish a per se violation of N.J.S.A. 39:4-50, and,

independent of the witnesses' observations, support Judge Jones's determination

defendant is guilty of DUI.

Defendant also argues the court erred by sentencing him in accordance

with the version of N.J.S.A. 39:4-50 in effect on August 8, 2017, the day he was

found slumped over the steering wheel of his vehicle, with a flushed face, watery

eyes, and smelling of alcohol, while stopped at an intersection with his foot on

the brake and the traffic signal repeatedly cycling through its lights. He argues

he should have been afforded the option to select whether he was sentenced

under the 2017 version of N.J.S.A. 39:4-50 or the amended version that became

effective on December 1, 2019, following his arrest but before he was convicted

in the Law Division.

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 On August 23, 2019, more than two years after defendant's arrest, the

Legislature amended N.J.S.A. 39:4-50, in part, by eliminating the mandatory

seven-month period of license forfeiture for a first-time DUI offender and

instead providing that a first-time offender install an ignition interlock device

on his or her vehicle. L. 2019, c. 248, § 2. The Legislature found that "[b]ecause

a majority of drunk drivers, including first[-]time offenders, often continue to

drive with suspended licenses, ignition interlock devices are more effective in

deterring drunk driving than license suspension." L. 2019, c. 248, § 2. The

Legislature determined the amendment would "take effect on the first day of the

fourth month after [its] enactment and shall apply to any offense occurring on

or after that date." L. 2019, c. 248, § 7 (emphasis added).

Our interpretation of the statutory amendment presents a legal issue we

review de novo. MasTec Renewables Constr. Co., Inc. v. SunLight Gen. Mercer

Solar, LLC, 462 N.J. Super. 297, 318 (App. Div. 2020). The principles

governing our interpretation of statutes are well-settled. In re Kollman, 210 N.J.

557, 568 (2012). In our "interpretation of a statute[,] our overriding goal" is "to

determine the Legislature's intent." In re Civ. Commitment of W.W., 245 N.J.

438, 448 (2021) (quoting Young v. Schering Corp., 141 N.J. 16, 25 (1995)); see

also Kollman, 210 N.J. at 568. We "look to the statute's language and give those

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terms their plain and ordinary meaning." W.W., 245 N.J. at 448 (quoting State

v. J.V., 242 N.J. 432, 442 (2020)); see also DiProspero v. Penn, 183 N.J. 477,

492 (2005) ("[Courts] ascribe to the statutory words their ordinary meaning and

significance [] and read them in context with related provisions so as to give

sense to the legislation as a whole." (citations omitted)). "If the language is

clear, . . . [our] job is complete." W.W., 245 N.J. at 449 (quoting In re

Expungement Application of D.J.B., 216 N.J. 433, 440 (2014)); see also Johnson

v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016) ("If the plain language leads

to a clear and unambiguous result, then our interpretative process is over."

(quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189,

195 (2007))). However, "[w]hen [a] statut[e's] language is ambiguous and 'leads

to more than one plausible interpretation,' [we] may resort to extrinsic sources,

like legislative history and committee reports." MasTec Renewables, 462 N.J.

Super. at 320 (quoting State v. Twiggs, 233 N.J. 513, 533 (2018)).

We find no ambiguity in the amendment's plain language. It expressly

provides that its application is limited to "offense[s] occurring on or after"

December 1, 2019. L. 2019, c. 248, § 7. Defendant committed the DUI offense

on August 8, 2017, and he was charged in a summons with committing a DUI

offense occurring on that date. Defendant's claim that an offense under the

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amendment does not occur until a defendant's conviction is recorded on his or

her Division of Motor Vehicle driver's abstract ignores the amendment's plain

language, is untethered to any legal authority, and defies logic and common

sense. We apply the statute's plain language and find defendant's offense

occurred on August 8, 2017, as he sat in his vehicle at an intersection while

under the influence of an intoxicating liquor. The court correctly rejected

defendant's claim he should be sentenced under the amended statute because the

amendment does not apply to offenses, like defendant's, that occurred prior to

December 1, 2019.

Any remaining arguments made on defendant's behalf we have not

expressly addressed are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed. We vacate the stay of defendant's sentence. We remand for the

Law Division to take the steps necessary to implement its sentence.

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