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Bauer v. Borough of Cliffside Park

New Jersey Superior Court, Appellate Division

Decided: May 18, 1988.


On appeal from Superior Court, Law Division, Bergen County.

Deighan and Landau. The opinion of the court delivered by Landau, J.A.D.


[225 NJSuper Page 40]

Suzanne M. Bauer sued the Borough of Cliffside Park (Borough) the Police Department of Cliffside Park (Department) and Cliffside Park Police Officer Jack Mattessich (Mattessich) asserting claims for malicious prosecution and false arrest. Following grant of summary judgment to all defendants, Bauer appealed.

The claims arise out of Bauer's arrest without warrant in her apartment and unsuccessful prosecution for operating a motor vehicle under the influence of intoxicating liquor (N.J.S.A. 39:4-50) (hereinafter DUI) and refusal to take a breathalyzer test (N.J.S.A. 39:4-50.2, 50.4a).*fn1

[225 NJSuper Page 41]

Bauer was arrested on September 25, 1985. Following trial before the municipal judge on December 5, 1985, she was found not guilty on the DUI charge and guilty on the breathalyzer refusal charge. On appeal to the Law Division, the breathalyzer conviction was reversed because the trial judge deemed the underlying arrest invalid, absent a warrant, in that the offense did not take place in the presence of the arresting officer. The trial judge relied upon N.J.S.A. 39:5-25 which states in pertinent part:

Bauer urges on appeal:





Joseph Perone, a resident of a Cliffside Park apartment building called the Cliffside Park Police Department after midnight on September 25, 1985, to report that someone struck his parked truck while attempting to park a car. Perone had heard the noise of a crash as he sat in his apartment watching television. He went to the window and saw the car which apparently struck his truck. Perone ran immediately to the street and tried to make that car stop, but the driver backed off and drove away as he "banged on the hood . . ." Perone testified,

Then I went back into my apartment and called the police saying I wanted to report an accident. Then I went back out into the street, waited for the police to arrive. Meanwhile the person, she came walking up towards the apartment building. I said to her, 'do you know, you just hit my car and drove away.' And I had like there was no response. She just stood there. I said, again I question, I said, 'you hit my car and drove away, you know, what are you going to do about this?' And to say I'm not going to do anything about it, then she just walked into the apartment building. Then the police arrived and I explained to them what had happened and they went in and, you know, and asked her to come out.

Perone reported that Bauer was the driver of the car, that he recognized her and knew that she lived in his apartment building. After backing out of the side street, Bauer parked her car

[225 NJSuper Page 43]

and walked toward the apartment building. As she walked toward Perone, he made the following observations:

On cross-examination Perone conceded that Bauer's behavior could have been caused by something other than drinking, such as a medical problem.

Perone estimated that Patrolman Jack Mattessich, a police officer employed by the Borough of Cliffside Park, arrived at the scene approximately five minutes after his phone call to the police. Perone told Mattessich "that a woman who lives in his apartment building had struck his vehicle and she refused to give him any paperwork and went into her house."

Mattessich went to Bauer's apartment, knocked on the door, and Bauer eventually opened the door. Mattessich told Bauer she had been involved in a motor vehicle accident and asked her for her license, registration and so forth. Mattessich reported that "she told me to go f-yourself, slammed the door and I had to repeatedly bang on the door again to get her to open it." After some time, Bauer again opened her door and Mattessich stepped into the apartment. He then testified as follows:

QUESTION. And what happened after that?

ANSWER. Well at that point I advised her that she was going to be placed under arrest.

QUESTION. Did she respond?

ANSWER. Just kept ranting and raving. She had to be helped to stand.

QUESTION. And what happened after that?

THE COURT: I don't understand what that means.

THE WITNESS: Well she kept stumbling, your honor, kept falling over her furniture. We had to physically hold her from falling. (Pa29-30).

[225 NJSuper Page 44]

Concluding that Bauer was intoxicated, Mattessich placed her under arrest, transported her to police headquarters, and read her the Miranda warnings. Bauer refused to take the breathalyzer test. Mattessich then signed complaints charging her with operating a motor vehicle while under the influence of an intoxicating liquor contrary to N.J.S.A. 39:4-50, and for refusing to take a breathalyzer test contrary to N.J.S.A. 39:4-50.2.

Ironically, although Mattessich's initial effort was to secure Bauer's license, registration and insurance card which Perone had been unable to do, no summons was issued for leaving the scene of an accident in violation of N.J.S.A. 39:4-129(b) and (c) (exhibition of license and registration to person whose property was damaged).

It was undisputed that Mattessich never observed Bauer in or near her motor vehicle and thus his information respecting operation came only from Perone. Subsequently, during the course of discovery in the present action, Bauer admitted operation of her vehicle and striking the parked truck.


The trial judge properly considered the issue of liability for malicious prosecution separately from liability for false arrest. We affirm the grant of summary judgment to all defendants on the malicious prosecution issue substantially for the reasons stated in Judge Murphy's oral opinion of June 19, 1987, concluding as we do that Bauer's arguments in this regard are without merit. R. 2:11-3(e)(1)(E).

We recognize that Bauer's claim of malicious prosecution was grounded in two prosecutions, one for DUI and the second for refusing to take the breathalyzer test. It may be urged that existence of probable cause for a DUI prosecution does not excuse prosecution for refusal to take a breathalyzer test which does not follow a lawful arrest made in conformity with N.J.S.A. 39:5-25. We note, however, that a suit for

[225 NJSuper Page 45]

malicious use of process is a cause of action disfavored in the law*fn2 and therefore, an even heavier burden is imposed on a plaintiff. Penwag Property Co. v. Landau, 76 N.J. 595, 597 (1978). Apart from showing initiation of the action and favorable termination, malice and absence of probable cause, the plaintiff in a civil matter must also establish a special grievance. Id. at 598.

While we agree that a finding of guilt of the motor vehicle violation of refusal to take a breathalyzer test could not be sustained because the underlying arrest was partially bottomed in out-of-presence information, that information and Mattessich's observations of Bauer demonstrate that the element of absence of probable cause was not present.

With respect to the claim of false arrest, we observe that the issue of Officer Mattessich's presence at time of operation does not arise in the context of whether probable cause for the DUI prosecution existed, because there was ample probable cause based upon Perone's oral and written statements, as augmented by the officer's personal observations of Bauer's condition.*fn3 However, the officer's presence was necessary during operation, in the sense that operation has now been broadly construed in the recent Mulcahy and Wright decisions of the Supreme Court (State v. Mulcahy, 107 N.J. 467 (1987); State v. Wright, 107 N.J. 488 (1987)), in order to permit him to arrest without warrant for a violation under chapters three and four of the Motor Vehicle and Traffic Laws. N.J.S.A. 39:5-25. This interpretation is consistent with our common law. See, e.g.,

[225 NJSuper Page 46]

State v. Morse, 54 N.J. 32 (1969). The only significant exception to the warrant requirement in an arrest for a nonindictable offense not committed in the presence of the arresting officer is if the commission has been admitted. State in Interest of J. B., Jr., 131 N.J. Super. 6, 13-16 (Cty.Ct.1974). See also, State v. Mulcahy, supra, 107 N.J. at 475-476; State v. Smith, 37 N.J. 481, 495 (1962), cert. den. 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). To the extent that In re Emberton, 109 N.J. Super. 211 (App.Div.1970) and State v. Hanemann, 180 N.J. Super. 544 (App.Div.1981), certif. den. 88 N.J. 506 (1981), may be read to have adopted the probable cause or reasonable basis standard applicable to indictable offenses as a proper standard for warrantless arrests in out-of-presence motor vehicle violations, our examination of those opinions suggests that the "presence" requirement of N.J.S.A. 39:5-25 and its common law forebears was neither raised nor considered. They do not change the state of the law as reviewed by Judge Brody in State in Interest of J. B., Jr., supra, 131 N.J. Super. at 13, and confirmed in Mulcahy.

The question emphasized in State v. Mulcahy is what the arresting officer observed by the use of his own senses and whether that observed conduct connoted operation. In order to arrest a driver and require that he submit to a breathalyzer test, the officer's own senses must afford probable cause to believe that operation by the defendant, in the Mulcahy-Wright sense, has occurred or is about to occur.

In this case, no version of the proofs would tend to show that the officer based his assessment of probable cause for arrest upon any evidence of operation other than Perone's statements.

Bauer's admission that she operated the vehicle did not come until this civil suit started, although her apparent inebriation was physically observed by Mattessich. When considering the language of N.J.S.A. 39:4-50.4a, the Mulcahy majority opinion did not differ with Justice Clifford's statement in dissent (107 N.J. at 487) that the element of the refusal statute which

[225 NJSuper Page 47]

requires that refusal occur after an arrest for drunk driving refers to a legal arrest. The arrest in this instance did not conform with N.J.S.A. 39:5-25 or common law.

The basis for a claim of false arrest arises at the time the incident occurs, i.e., the time of arrest. Pisano v. City of Union City, 198 N.J. Super. 588, 591 (Law Div.1984). Subsequent events cannot legalize an act illegal when performed. Even probable cause does not constitute a defense unless it serves to validate the arrest. Prosser and Keeton On Torts, § 11, at 53 (5th Ed.1984). Here, because of the language of N.J.S.A. 39:5-25, the arrest cannot be validated by the presence of probable cause, even though the charge of DUI may be supported by that probable cause. Similarly, absence of ill will or any desire to injure Bauer does not serve as a defense, although all of these factors should be applicable to the issue of damages. See, Prosser and Keeton, supra, § 11, at 53. Moreover, the false arrest claim can refer only to the arrest for operation under the influence, as the refusal occurred after arrest.

Thus, we must decide whether Bauer should be provided with a remedy to recover for a "false arrest" which was not permitted under N.J.S.A. 39:5-25, even though there was probable cause to believe there had been operation under the influence. The problem is somewhat complicated by Bauer's recent admission of operation, which, together with Mattessich's observation of her apparent intoxication shortly after the incident, would have provided a sound basis for the arrest.

Is the remedy afforded by law for a false arrest primarily to recognize that the arrested person was the victim of a wrong and to compensate her therefor, or is the remedy primarily afforded for the benefit of the public to discourage false arrests? The false arrest cases typically deal with situations where there was not probable cause for the arrest. Here, there was such probable cause. Moreover, the missing element of operation needed to sustain a warrantless arrest has now been

[225 NJSuper Page 48]

provided by Bauer. Another factor to be considered is that State v. Tischio, 107 N.J. 504 (1987) app. dism. U.S. , 108 S. Ct. 483, 98 L. Ed. 2d 482 (1987), requires that a prompt breathalyzer test be performed, because of its disapproval of extrapolation evidence. Unquestionably, Mattessich must have been aware that Bauer's inculpatory state of inebriation, if such it was, would have been altered by passage of time. We have, however, been favored with nothing to indicate whether any attempt was made to secure a warrant, and, if so, how long that might have taken.

Yet another consideration in weighing the remedy issue is the probable influence of, and reliance placed by authorities upon, the Emberton and Hanemann cases referred to above. Hanemann was relied on by the municipal judge. These decisions certainly must have appeared to lend support to the arrest procedure utilized in this case, because of the existence of probable cause.

We conclude that although there was an improper arrest, in the circumstances here present no sound interest would be served by affording a significant financial reward to Bauer for deferring acknowledgement of vehicle operation until the motor vehicle actions were concluded. As to the public interest, often considered in affording a tort remedy, the Law Division's reversal of Bauer's Municipal Court finding of guilt under N.J.S.A. 39:4-50.4a offers sufficient incentive to the defendants to correct future procedures.

Consequently, with respect to the claims of false arrest made against the several defendants, we reverse the grant of summary judgment, but hold that damages suffered by Bauer are as a matter of law and public policy, necessarily nominal. We would be inclined therefore to enter judgment for plaintiff on this claim for six cents and court costs to avoid the expense of remand. Accord, Mason v. Wrightson, 205 Md. 481, 109 A.2d 128 (Ct.App.1954). However, we note that the defenses of expiration of time under Title 59 which were pleaded by the

[225 NJSuper Page 49]

municipal defendants were not explored on the motions for summary judgment. Thus, possible expiration of Title 59 limitation periods remains as a defense in the case, at least for the Borough and the Police Department.

Accordingly, we must remand for proceedings consistent herewith on the false arrest claims.

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