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

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

NOT FOR PUBLICATION WITHOUT THE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.

August 21, 2017
2 A-0489-13T1

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). 
3 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.
4 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.
5 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 SevenUp."

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, 
6 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.

. . . .
7 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 
8 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).
9 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.
10 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's

5 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. 
11 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,
12 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.]
13 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 brightline 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.
14 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 wellsupported 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).
15 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.