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State v. Pavao

Decided: March 8, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK PAVAO, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

O'Brien, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

Defendant appeals from his conviction in the Wall Township Municipal Court and again in the Law Division after his trial de novo of refusing to take a breathalyzer test, N.J.S.A. 39:4-50.2 and driving while on the revoked list, N.J.S.A. 39:3-40.*fn1 On the refusal charge, defendant was fined $500, his driving privileges were revoked for two years and he was ordered to participate 12 hours in the Intoxicated Drivers Resource Center. On the driving while revoked charge, defendant was fined $750, his driving privileges were revoked for an additional 60 days and he was sentenced as a second offender to a one-day jail term.

On appeal, defendant raises the following points:

Point I -- Where the trooper's stop of defendant's automobile was pretextual, lacking probable cause and constituting an unjustified investigatory stop, defendant's convictions for refusal and driving while suspended must be reversed.

Point II -- The sentence of one day imprisonment must be set aside because such sentence was founded upon the trial court's erroneous legal conclusion that such a sentence was mandatory.

We affirm.

The State's proofs established that State Trooper David Meyer observed defendant's vehicle traveling southbound on State Highway 35 in Wall Township. The vehicle was traveling at low rate of speed, was weaving and, on at least two occasions, crossed over the fog line separating the traveled portion of the highway from the shoulder. When the trooper stopped the vehicle, he detected an odor of alcoholic beverage on defendant's breath. When defendant recited the alphabet, he did so in a slow, slurred voice. After defendant had difficulty performing coordination tests at the scene, he was placed under arrest for driving while intoxicated and was transported to the State Police barracks.

We are satisfied that Trooper Meyer had an objectively reasonable basis to stop defendant's vehicle. See Delaware v. Prouse, 440 U.S. 648, 661, 99 S. Ct. 1391, 1400, 59 L. Ed. 2d 660, 672 (1979); State v. Weber, 220 N.J. Super. 420, 423, 532 A.2d 733 (App.Div.), certif. den. 109 N.J. 39, 532 A.2d 1107 (1987). The erratic nature of the vehicle's movement provided an articulable and reasonable suspicion that defendant was driving carelessly, N.J.S.A. 39:4-97, or while under the influence of alcohol, N.J.S.A. 39:4-50.

After defendant's vehicle was stopped, the trooper properly asked defendant to alight from the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331, 337 (1977). When asked for credentials, defendant was unable to produce his driver's license. As stated, his speech was slurred, he had alcohol on his breath and he had difficulty performing roadside physical tests. The State establishes a failure to submit violation by proving "by a preponderance of the evidence" that the "arresting officer had probable cause to believe the [defendant] had been driving . . . while

under the influence," and that he refused to submit to the test. N.J.S.A. 39:4-50.4a. The Law Division judge's determination that this standard was met is amply supported by the record. State ...


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