On appeal from Superior Court of New Jersey, Law Division, Burlington County, after our remand, 258 N.J. Super. 599 (App. Div. 1992).
Approved for Publication March 23, 1995.
Before Judges Villanueva, Wefing and Braithwaite. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
Defendant Edward Kadelak appeals from the Law Division order, after our remand, 258 N.J. Super. 599 (Kadelak I), upholding his conviction of violating N.J.S.A. 39:4-50 (DWI) and the constitutionality of N.J.S.A. 39:8-2, which mandates random roadside inspections annually of at least 1% of the motor vehicles registered in the State. The trial court concluded that the mobile inspection teams (MITs) utilized by the Division of Motor Vehicles (DMV) are constitutionally permissible. We affirm.
The facts of this case as they relate to defendant's motor vehicle stop are succinctly summarized in our first opinion wherein we stated:
On August 9, 1990, the Bordentown City Police and the State Division of Motor Vehicles (DMV) conducted a "roadside safety check" in which local police and a team of inspectors from the DMV stopped oncoming cars to conduct an inspection of the vehicle and the credentials of the operator. The particular roadblock under review was conducted on Park Street, which had been selected by the chief of police....
The officers on the roadway had been orally instructed by the police chief to stop every fifth vehicle as well as any vehicle with an obvious equipment violation, such as a broken headlight or cracked windshield, or an overdue inspection sticker. The vehicles stopped were directed over to the adjacent lot where the vehicle was inspected for "just about everything that would be checked in the motor vehicle inspection; tires, lights, horns, pollution - and documentation."
The roadside safety check was conducted from 9:00 a.m. to 3:00 p.m.... At approximately 10:30 a.m., defendant's pickup truck was stopped because it was a fifth car in the line.... Defendant was found to be intoxicated and was charged with DWI (N.J.S.A. 39:4-50). [His breathalyzer readings were .22 and .21 respectively].
[Kadelak I, 258 N.J. Super. at 600-601, 601 n.2.]
Following an extensive procedural history involving defendant's motion to suppress evidence in the municipal court, which was denied despite his claim that N.J.S.A. 39:8-2 is unconstitutionaland that the stop therefore violated his constitutional rights, his plea of guilty to the DWI charge, *fn1 an appeal to the Law Division and this court, we remanded the matter to the Law Division to consider the balancing of the State's interest in conducting vehicle safety checkpoints of the type which resulted in defendant's stop and eventual DWI arrest against the intrusion of defendant's constitutional rights. We ultimately stayed defendant's sentence pending his appeal.
In our first opinion ordering a remand, we noted that
no evidence was offered [by the State] in support of the reasons for random roadside inspections except for the existence of legislative authority. Further, no empirical data was submitted to assist in examining the balance between the intrusion on individual rights against the promotion of some legitimate governmental interest; for example, the frequency of vehicles which have passed inspection at a state facility but have been found, on roadside inspection, to have developed defects; or vehicles which have passed inspection at a private facility, notwithstanding defects found on roadside inspections.
[Kadelak I, supra, 258 N.J. Super. at 612.]
On May 10th and 11th, 1993, when the trial court conducted an evidentiary hearing pursuant to our directive, the State presented the testimony of five witnesses: Mark Marino, Thomas Wright, Thomas Bednarz, Michael T. Klewin, and Robert E. Leonhardt. Marino, a DMV supervisor, testified as to the nature, history and overall function of the MITs. Wright presented a statistical and empirical analysis of the MITs' activities. Bednarz addressed DMV private inspection center audits, the results of covert investigations related thereto and the monitoring function served by MITs. Leonhardt, the MIT leader at defendant's stop, testified about characteristics and results of the August 9, 1990 MIT checkpoint. Klewin testified as to the federal Clean Air Act of1970 (Clean Air Act or Act), 42 U.S.C.A. §§ 7401-7642, New Jersey's responsibilities under the Act and the role of MITs in relation thereto.
The trial Judge found that for the years 1989, 1990, and 1991, the failure rates found by the MITs were substantially higher than the failure rates by State Inspection Centers (SICs) and Private Inspection Centers (PICs). The percentage of those failed by all the inspection centers due to credential violations in 1989 was 23%, in 1990 it was 20% and in 1991 it was 15%.
Although the Judge noted that credential violations have little relation to highway safety, he found that the MITs also discovered various equipment violations. The Judge found that the record supports the Conclusion that a majority of violations would not be found unless vehicles were subjected to random roadside checks.
The Judge "accepted as implicit, for purposes of this case, that the physical condition of motor vehicles has some relation to highway safety and to the number and/or seriousness of motor vehicle accidents." However, the Judge did note that there were no statistics presented to support this proposition, and set forth the issue as whether the incremental value of MIT inspections over SIC and PIC inspections in achieving motor vehicle safety represents such a significant State interest to justify the inevitable intrusion upon the fundamental freedoms of travel and privacy.
The Judge noted that the State offered two fundamental reasons related to highway safety why MITs are constitutional. The first was that MITs monitor compliance with equipment standards because people will be more likely to keep their cars in good repair if they know there is a chance they will come upon a roadside check. The State urged that the higher failure rates at MIT inspections, as compared to SICs and PICs, is a result of people not repairing their cars until the inspection is due. The State next argued that MITs are part of the overall policy to monitor the honesty and thoroughness of SICs and PICs: "Logic dictates that, as in the case of any random spot check, quality assurance is improved." The court did concede, however, that nostatistics were presented to demonstrate how many cars that passed at a SIC or PIC failed an MIT inspection, and thus the court could not quantify the effectiveness of the program. *fn2
The State also offered a third reason, unrelated to highway safety, involving the broader public concern of complying with mandatory regulatory requirements set forth in the Clean Air Act. The Judge noted that to achieve the air quality standards required by the Act, New Jersey must implement an enhanced inspection system for mobile sources of ground level ozone and carbon monoxide gases. The Judge also noted that the contribution MITs make to clean air quality is undetermined, but there is a consensus among experts that vehicle inspection programs generally have a significant impact on air quality.
Although this type of roadside stop is a seizure and thus presumptively invalid, the Judge posited that "on a scale of values which measures such intrusion against the significance of highway safety or the reduction of pollution in the air, in my judgment, the intrusion is constitutionally acceptable. It is, in fact, minimal."
The Judge concluded that the State has a legitimate interest in the health, safety, and welfare of its citizens that is furthered by vehicle safety checkpoints, and the inclusion of the MIT program in the proposed State Implementation Plan (SIP), required by federal regulations, serves to reduce air pollution given that air pollution, to which vehicles are a major contributor, has been found to have a "significant impact on the public health." The Judge in a written opinion dated October 19, 1993, again denied defendant's motion to suppress. The Law Division's order affirmed the Conclusions set forth in the trial Judge's two opinions and upheld the constitutionality of N.J.S.A. 39:8-2, and was ultimately signed on November 19, 1993.
On appeal defendant argues:
I. PURSUANT TO THE MANDATE OF STATE V. KADELAK, 258 N.J. SUPER. 599, 610 A.2d 916 (APP. DIV. 1992), THE STATE NEITHER PRESENTED EMPIRICAL DATA DEMONSTRATING THE EFFICACY OF THE CONSTITUTIONALLY INTRUSIVE MOBILE INSPECTION TEAM ROADBLOCK NOR DID THE STATE PROVE THAT CUSTOMARY AND TRADITIONAL METHODS OF LAW ENFORCEMENT WERE DEFICIENT TO PROMOTE ROAD SAFETY.
II. THE POLICY OF DMV AND POLICE DEPARTMENTS IN NOT PUBLICIZING THE MIT ROADBLOCKS INCREASES CONSTITUTIONAL INTRUSIVENESS.
III. THE MIT ROADBLOCK IS HIGHLY INTRUSIVE CONSTITUTIONALLY.
IV. THE STATE PRESENTED HIGHLY FLAWED DATA.
V. PURSUANT TO STATE V. PIERCE, 136 N.J. 184, 642 A.2d 947 (1994), ARTICLE I, PARAGRAPH 7, OF NEW JERSEY'S CONSTITUTION AFFORDS GREATER PROTECTION THAN THE FOURTH AMENDMENT.
VI. THE OCTOBER 19, 1993 DECISION OF [THE TRIAL] JUDGE INCORRECTLY RELIES ON LESS PROTECTIVE OUT-OF-STATE AUTHORITY.
The amicus curiae additionally argues:
I. ROADBLOCKS ESTABLISHED TO UNCOVER MOTOR VEHICLE VIOLATIONS VIOLATE BOTH THE FOURTH AMENDMENT AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.
II. THE MOBILE INSPECTION ROADBLOCK CONDUCTED ON AUGUST 9, 1990 FAILS TO MEET THE REQUIREMENTS ESTABLISHED IN STATE V. KIRK.
A. The time and location of this roadblock were selected on the basis of convenience, ...