On appeal from Superior Court, Law Division, Monmouth County.
Petrella and Baime. The opinion of the court was delivered by, Baime, J.A.D
Defendant was charged with operating a motor vehicle while intoxicated and refusing to submit to a breathalyzer test contrary to the provisions of N.J.S.A. 39:4-50 and N.J.S.A. 39:4-50.4a, respectively. The complaints emanated from the same incident and were thus consolidated for the purpose of trial. R. 7:4-2(f). Following a plenary hearing in the Middletown Township Municipal Court, defendant was found guilty of refusing to submit to a breathalyzer test and was acquitted of driving while intoxicated. Pursuant to the enhanced penalty provision of N.J.S.A. 39:4-50.4a, defendant was sentenced as a second offender. Specifically, the municipal court judge revoked defendant's driver's license for a period of two years and imposed a $250 fine. Defendant appealed to the Superior Court, Law Division, and a trial de novo was conducted on the municipal court record. R. 3:23-8. At the conclusion of the attorneys' arguments, the Superior Court judge rendered an oral opinion finding defendant guilty of refusing to submit to a breathalyzer test. The trial court agreed with the municipal court judge that defendant qualified as a repeat offender and imposed essentially the same penalty. This appeal followed.
On appeal, defendant contends that the trial court's conclusions are not supported by sufficient credible evidence contained in the record. Defendant also argues that the municipal court erred in consolidating the charges for the purpose of trial. Although ambiguously phrased, defendant apparently claims that joinder of the complaints imposed an unnecessary penalty upon his assertion of the Fifth Amendment privilege against self-incrimination. Finally, defendant contends that the court erroneously sentenced him as a second offender. We are satisfied that these arguments lack merit and affirm.
For the purpose of this appeal, the essential facts are not in dispute. In the early morning hours of April 8, 1983, members of the Middletown Township Police Department responded to a report pertaining to a suspicious vehicle possibly [196 NJSuper Page 474] occupied by an intoxicated driver. Upon their arrival, the officers observed a blue Plymouth, which was occupied solely by defendant, parked along the shoulder of the road. Defendant was found asleep behind the wheel in the driver's seat. The engine was not running and the headlights were off. One of the officers touched the hood of the automobile. It did not appear to be warm. In attempting to awaken defendant, the officers found it necessary to use an ammonia inhalent. Upon finally being aroused, defendant was asked to exit from the vehicle. Defendant staggered as he alighted from the automobile. According to the arresting officer, defendant appeared to be intoxicated. More specifically, he had difficulty with his balance, his eyes were bloodshot, his face flushed and there was a strong odor of alcohol emanating from his breath. Although no bottles or containers were found either inside the vehicle or in the immediate vicinity, the automobile smelled of alcohol. When questioned as to his reason for being parked on the shoulder of the road, defendant jokingly replied that he was "waiting for the sun to rise." Defendant acknowledged that he had been drinking and that he was alone in the vehicle. The officers placed defendant under arrest and transported him to police headquarters where he was questioned further. Although defendant initially denied having driven the vehicle, he subsequently admitted that he had been traveling south on Route 35 from Edison.*fn1 Defendant refused to submit to a breathalyzer.
Defendant did not testify or offer any evidence in his behalf. The municipal court judge found that defendant was intoxicated at the time of his arrest. Nevertheless, he was acquitted of driving while intoxicated because the State failed to prove beyond a reasonable doubt that he had either operated or had intended to drive the vehicle. However, the judge found by a preponderance of the evidence that the police officers had probable cause to arrest defendant and that he refused to submit to a breathalyzer test. Thus, defendant was convicted of that charge.
Initially, we reject defendant's contention that the trial judge's conclusions are not supported by credible evidence contained in the record. See State v. Johnson, 42 N.J. 146, 162 (1964). Contrary to defendant's argument, we are not called upon to determine the sufficiency of the evidence necessary to support a conviction of drunk driving. To sustain a charge under N.J.S.A. 39:4-50.4a, the trier of fact must find "by a preponderence of evidence" that the arresting officers "had probable cause to believe" that the accused "had been driving or was in actual physical control" of a motor vehicle on the public highways "while under the influence of intoxicating liquor." The second essential finding is that the defendant refused to submit to a breathalyzer test. See State v. Potts, 186 N.J. Super. 616, 620 (Law Div.1982). The obvious legislative design is to penalize those who refuse to be tested where reasonable grounds exist to believe that they have violated the drunk driving law. As is readily apparent from the statutory language, actual operation of a vehicle while intoxicated is not an element of the offense. Rather, the necessary statutory predicate is probable cause to believe that an offense has been committed. Probable cause is an elusive concept incapable of
precise definition. It is more than mere suspicion but less than legal evidence necessary to convict. State v. Mark, 46 N.J. 262, 271 (1966). It has been described by our Supreme Court as a "well grounded" suspicion that an offense has been committed. State v. Burnett, 42 N.J. 377, 387 (1964). See also State v. Waltz, 61 N.J. 83, 87 (1972); State v. Dilley, 49 N.J. 460, 463-464 (1967); State v. Contursi, 44 N.J. 422, 431 (1965). Further, our courts have eschewed technisms in reviewing factual circumstances to determine whether probable cause exists. State v. Esteves, 93 N.J. 498, 503 (1983). Resolution of such issues is rarely susceptible to abstract contemplation. Rather, the answer must be found in the "tumult of the streets." State v. Gerardo, 53 N.J. 261, 264 (1969). Stated somewhat differently, probable cause must be drawn from the "practical considerations of everyday life" as tested by reasonably prudent persons. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949). Hence, the decisions of police officers, which often must be made on the spur of the moment, cannot be reviewed from the vantage point of twenty-twenty hindsight.
Here, we are dealing with law enforcement efforts designed to curb one of the chief instrumentalities of human catastrophe, the drunk driver. Cf. Kelly v. Gwinnell and Paragon Corp., 96 N.J. 538 (1984). Within that context we agree with the trial judge's conclusion that the police officers acted reasonably in arresting defendant for driving while intoxicated and requesting him to submit to a breathalyzer test. The issue is purely factual. Defendant was found intoxicated at the wheel of the vehicle with the engine off at a position other than a normal one for parking. Our Supreme Court has held that these facts "warrant a finding that he drove the car and did so while under the influence of alcohol." State v. Chapman, 43 N.J. 300, 301 (1964). See also State v. Daly, 64 N.J. 122 ...