Thursday, January 05, 2012

DWI Law - Woman Convicted of DWI Without Alcotest Loses 'High Heels' Defense

As reported in the New Jersey Law Journal:

With all the attention given to the debut of the high-tech Alcotest, it's easy to forget that drunken driving convictions can still be based on old-fashioned field sobriety tests.

That means a woman was justly convicted, without use of Alcotest results, based on unstable driving and deficient motor skills at a traffic stop that she blamed on a health disorder and on wearing high-heel shoes, the Appellate Division ruled Tuesday in State v. Salkewicz, A-0224-10.

"We agree with the Law Division judge's determination that the proofs concerning defendant's erratic driving and poor performance in the roadside tests were sufficient to establish defendant's guilt beyond a reasonable doubt," Judges Clarkson Fisher Jr. and Linda Baxter said in affirming the conviction.

Barbara Salkewicz was stopped on Oct. 3, 2008, in Manchester Township by Patrolman Adam Emmons, who had observed her repeatedly crossing the center line on Route 70 and driving erratically. She admitted to having had two glasses of wine.

Emmons had her perform sobriety tests, which she failed. She was unable to walk a straight line heel to toe or to stand with her feet together and raise one foot off the ground as directed. Taken to a police station, Salkewicz agreed to an Alcotest, the results of which showed a blood-alcohol content of 0.15 percent.

At her Manchester Township trial, Salkewicz's attorney, Evan Levow, objected to the admission of the Alcotest results because the administrator, Sgt. James Delane, failed to first observe her for a minimum of 20 minutes.

Municipal Court Judge Phillip Miller allowed the results to be admitted. Salkewicz entered a guilty plea conditioned on preserving her right to appeal. Miller agreed to stay the sentence.

Ocean County Superior Court Judge Ronald Hoffman remanded the case, saying Miller should have considered whether he could have convicted Salkewicz on Emmons' observations and Salkewicz's difficulties with the sobriety tests.

At the second trial, the municipal prosecutor, Valter Must, said he could no longer rely on the Alcotest results since he could not guarantee that Delane waited the required 20 minutes.

By then, Manchester had a new judge, Daniel Sahin, who based his decision to convict Salkewicz on a videotape of the traffic stop.

Levow had argued that Salkewicz was unsteady because she was wearing high heels and suffered from Graves disease, an autoimmune disorder, and that she momentarily drove erratically because she was reaching down to pick up something she had dropped.

Salkewicz again appealed and Hoffman upheld the conviction. Must had no authority to suppress the Alcotest results but the videotape showed ample evidence that Salkewicz was under the influence of alcohol, he said.

Hoffman said there was no way to tell whether high heels were to blame, since Salkewicz was wearing long slacks that went all the way to the ground. He noted that a state police expert's report did not state that said Graves disease could cause a person to be unsteady.

On appeal, Fisher and Baxter said that Must was within his rights not to introduce the Alcotest results at the second trial, and whether they were admitted or not made no difference.

"Here, the evidence presented before the municipal court was more than sufficient to establish that defendant was under the influence of alcohol while operating her vehicle."

Fisher and Baxter acknowledged that Salkewicz claimed that she had dropped something and that she couldn't do the tests well because of her high heels and her Graves disease, but they declined to use that to overturn the conviction.

"Although a defendant may proffer an innocent explanation for his or her conduct, that explanation will not exclude a finding of guilt when the evidence is sufficient to leave the fact-finder firmly convinced that the defendant is guilty of the offense charged," they said.

Levow says he will ask the panel to reconsider its decision because it did not have the benefit of being able to review the videotape.

"It's bizarre," Levow, of Levow and Associates in Cherry Hill, says of the ruling. "I'm going to ask for reconsideration because they didn't have all the evidence. They gave no weight to the fact that she has a neurological condition and was wearing high heels."

Senior Assistant Ocean County Prosecutor Samuel Marzarella says the ruling demonstrates that drunken drivers can still be convicted based on visual evidence. "It's part of the statute," he says. "People forget about that."

--- A.3d ----, 2012 WL 17834 (N.J.Super.A.D.)

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