Benitez trial: Judge tossed out alcohol evidence

BLOOMFIELD, NJ — The DUI-trial acquittal of Bloomfield Municipal Judge Wilfredo Benitez was based only on the roadside observations of a NJ state trooper and not alcohol/blood level test results, which were ruled inadmissible.

Benitez had been discovered asleep in the early morning hours of Nov. 12, 2016, on a Route 80 shoulder in Tenafly, by two patrolling NJ state troopers. He was behind the wheel of his car, the motor was running and the emergency flashers activated. According to court testimony, the smell of alcohol was on Benitez’ breath. He was given a field sobriety test, handcuffed and arrested.

“This case has risen and fallen on the smell of alcohol, nothing more,” said the presiding trial judge, Bergen County Superior Court Judge Roy McGeady, in the audio recording of the trial held in Hackensack, on May 11, 2017.

The audio recording of the hour-long trial was made available to the Independent Press in the Tenafly Municipal Courtroom on Friday, Feb. 23.
In the recording, McGready said he did not know for certain if Benitez’ performance during a field sobriety test, administered by a trooper, was the result of alcohol consumption or having just been woken from sleep. According to the trooper, Benitez was unable to satisfactorily perform the field test.

Benitez currently faces ethics charges from the NJ Advisory Committee on Judicial Conduct for allegations that he attempted to obtain special treatment from the trooper during his ordeal.

Following the arrest, Benitez was taken to a State Police substation in Totowa and an Alcotest was administered to determine his blood/alcohol level. But the results were inadmissible at the trial because a DUI suspect has to be observed for 20 minutes prior to being tested. At the trial, it was acknowledge by the defense attorney and the prosecutor, John Bruno and Linda Schwager, respectively, that Benitez was left alone for a short time during the 20-minute observation period. They both agreed that the test results could not be used.

“Based on that, I’m satisfied that there is a failure to establish the 20-minute observation period as required by State versus Ugrovics,” McGready said. “So the state cannot proceed on the alcohol test.”

In NJ State versus Ugrovics, an Appellate Division court reconfirmed that a DUI suspect needs to be observed for 20 minutes prior to an alcohol/blood level test to definitely know if they ingested, regurgitated or placed anything in their mouth that could compromise test results. Because Benitez was not observed for 20 uninterrupted minutes, there was no way to know this, so his test results were inadmissible.
McGready said the trial would proceed based only on roadside observations by the trooper. The trial was not before a jury, but only the judge. The arresting officer, Trooper Justin Kearns, was the only witness questioned, first by Schwager.

Kearns told the court that when he and his partner discovered Benitez, he first went to the passenger side of the car. Not getting a response from Benitez, he approached the driver’s side. The rear window was open and the trooper shook Benitez. Kearns then began to knock on the driver’s window.

“I could tell he was breathing,” Kearns said. “I woke him up.”
Kearns asked Benitez to step outside the car because he smelled of alcohol.
Benitez was given two field tests, the walk and turn, and the one-leg stand. Schwager was interrupted several times by Bruno who objected that the trooper was not certified to conduct DUI field tests until March 2017, four months after the incident. McGready told Bruno he was not ruling out the objection, but wanted to hear what the trooper observed. Schwager sometimes had to rephrase her questions.

Asked if Benitez seemed confused, Kearns said he appeared to be just waking up. He also said Benitez did not walk a straight line; when told to walk nine steps walked 15 instead; did not walk toe-heel as instructed; and fell out of a standing position. Kearns said Benitez seemed groggy and when asked to raise his leg 6 inches and stare at his toe, had difficulty doing this.

“He was unable to stay balanced for a second,” Kearns said. “He should be able to do it for 30 seconds.”
McGready asked Kearns if those two field tests were the only ones he gave. The trooper said yes because he was not certified to administer others.

“I concluded he was under the influence and placed him under arrest,” Kearns said. “I had his vehicle impounded.”
It was then Bruno’s opportunity to questioned Kearns.

Bruno asked him if Benitez had his flashers on, if the area was poorly lit and if Benitez was legally parked on the shoulder. The trooper said yes to these questions.

Bruno asked Kearns if he knew how long the car had been parked before it was first seen by him. The trooper said he did not know, having already told the court that he and his partner came upon Benitez at the beginning of their patrol shift. Bruno asked Kearns if he knew the condition of Benitez while driving to where he was discovered. Kearns said he did not. Bruno asked if Benitez was in a dead sleep and that it was difficult to wake him. Kearns said yes. Bruno asked Kearns if he knew if Benitez appeared groggy from alcohol or sleep. The trooper said he did not know.

Bruno then asked Kearns if he gave Benitez proper instructions for the field test. A number of times, the trooper said he did not recall. One time he said he would have to review the video. From the ACJC complaint, it was evident that the exchange between Kearns and Benitez was being recorded, presumably by the trooper’s body camera.

“You don’t know if the test was a result of alcohol or being groggy?” Bruno said.
“No, I don’t,” Kearns said.

Bruno asked the judge for a dismissal of the case because the state did not prove that Benitez had any intention of driving his vehicle; there were no alcohol test results; the road was dark; the trooper was uncertified for field tests; and there was no way to determine if the roadside test performance was affected by sleep or alcohol. Bruno said there were just too many gaps to prove anything beyond a reasonable doubt.

McGready acknowledged that Benitez’ performances on both roadside tests were deficient, but added that the trooper could not say if this was because of alcohol or a deep sleep.

“I cannot conclude beyond a reasonable doubt it’s alcohol ingestion,” he said. “So there will be a judgement of acquittal.”
Regarding the ACJC ethics complaint, it was filed Jan. 24, 2018, and alleges that Benitez asked Kearns for special treatment because he was a judge. Following ACJC procedures, Benitez filed a reply Feb. 9 saying that the special treatment he sought from the officer was not to be handcuffed like a common criminal. The ACJC will rule on whether to drop its complaint or proceed with a public hearing.

Following the trial, both Bruno and Schwager commended Kearns on his conduct throughout the incident.