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State v. George

Decided: June 22, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RONALD GEORGE, DEFENDANT-APPELLANT



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

Bilder, Stern and Keefe. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

The opinion of the court was delivered by

BILDER, J.A.D.

On November 13, 1990, Ronald George was convicted in the Paterson Municipal Court of operating a motor vehicle while intoxicated. N.J.S.A. 39:4-50. For this third DWI conviction, he was sentenced to 90 days incarceration; ordered to perform 90 days community service; fined $1,000 and had his license revoked for 10 years. The fines and incarceration were stayed pending appeal. On appeal to the Law Division, he was again convicted in a trial de novo on the record below and was given a penalty similar to that imposed by the municipal court. On appeal before us he contends, as he did below, that the initial stop was unlawful, that there was insufficient evidence to support a finding he was operating the car, and that, in the event his conviction is upheld, he should be permitted to satisfy his custodial sentence by the 21 days he has already spent in an inpatient rehabilitation program and an additional 69 days he proposes to spend in an outpatient rehabilitation program.

On July 11, 1990, at approximately 11:45 p.m., Sergeant D'Amelio of the Paterson Police Department was on routine patrol when he observed a pickup truck stopped in a parking lot, not in a normal parking space but near the lot exit, with its

headlights on and its engine running. The defroster was on to defog the windshield. The driver, later identified as defendant, appeared to be in conversation with a female pedestrian. Because this was a high crime area and a locale for prostitution, D'Amelio asked to see the driver's license, registration and motor vehicle insurance card and inquired as to whether he knew the woman he was talking with. In the course of this inquiry, he detected a heavy odor of alcohol on defendant's breath. He asked defendant to turn off his motor and step outside. Upon inquiry, defendant acknowledged that he had been drinking.

Initially, D'Amelio did not think defendant was intoxicated. When asked to perform balance and coordination tests, defendant did so without error. He was asked to move his truck into a parking space and did so. A few minutes later D'Amelio had second thoughts and again questioned defendant as to his drinking. Based on that history and the heavy odor of alcohol, he arrested defendant for driving while under the influence. Subsequent breathalyzer tests disclosed the presence of .13 percent by weight of alcohol in defendant's blood. Based on these facts, the Law Division Judge found beyond a reasonable doubt that defendant operated the vehicle while intoxicated.

Defendant's contentions are without merit. We are satisfied the presence of the truck in a parking lot at 11:45 at night, with its lights on and engine running and the driver talking to a woman standing outside the cab, provided sufficient cause for Sergeant D'Amelio to question defendant. See State v. Bruzzese, 94 N.J. 210, 219, 463 A.2d 320 (1983), cert. denied 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The trial Judge's Conclusions that the police officer had "a right to come over and see what was going on" are supported by substantial credible evidence in the record. See State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). The subsequent arrest was clearly justified by defendant's presence behind the wheel of a vehicle with its lights on and its engine running at a

time when his breath disclosed a heavy odor of alcohol. See State v. Moskal, 246 N.J. Super. 12, 21, 586 A.2d 845 (App.Div.1991); also State v. Mulcahy, 107 N.J. 467, 474, 527 A.2d 368 (1987).

We are similarly satisfied that there was sufficient evidence to support the finding of operation. Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof. See State v. Dancyger, 29 N.J. 76, 84, 148 A.2d 155 (1959), cert. den. 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959). The vehicle's operating condition combined with defendant's presence behind the steering wheel permits the logical Conclusion of an intent to drive. See State v. Sweeney, 40 N.J. 359, 360-361, 192 A.2d 573 (1963); State v. Sweeney, 77 ...


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