On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Before Judges Long and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
The opinion of the court was delivered by
Pursuant to leave to appeal granted, the State appeals from a Law Division decision granting defendant James Colapinto's motion to suppress evidence raised immediately prior to a trial de novo following defendant's conviction in the Dover Township Municipal Court for driving while intoxicated, N.J.S.A. 39:4-50, and speeding, N.J.S.A. 39:4-98. We conclude that defendant waived his right to seek suppression of evidence pursuant to Rule 7:4-2(f), and reverse the decision suppressing the State's evidence and remand to the Law Division for a trial de novo.
On January 19, 1996, at approximately 10:00 p.m., defendant was traveling on Route 9 in Dover Township when he was stopped by Officer Richard Ross of the Dover Township Police Department. Officer Ross was operating a K-55 radar unit, which clocked defendant as traveling sixty- six miles per hour in a fifty mile per hour speed zone. The testimony in the municipal court was uncontradicted that defendant had a strong odor of alcohol emanating from his person and from the interior of his vehicle. Ross testified that he was at that time involved in a narcotics detail with Lakewood and Dover Township and therefore he requested by radio that another officer be dispatched to investigate his suspicion that defendant was operating his vehicle while intoxicated. In response to his communication to headquarters, Ross was advised that Officer Raymond Maloney, who was just finishing other police duties, would be dispatched to conduct further tests on defendant. Defendant was asked by Ross to remain seated in defendant's vehicle. He was not handcuffed or questioned. While awaiting Maloney's arrival, Ross remained seated in his police vehicle. According to Ross, Officer Maloney arrived at the scene within forty to forty-five minutes after the commencement of the traffic stop.
It is clear from the record that Maloney requested defendant to perform psychophysical tests *fn1 and then concluded that the test results provided him with sufficient evidence to conclude that defendant had violated N.J.S.A. 39:4-50. Defendant was placed under arrest and was transported to police headquarters where he was requested to submit to breathalyzer tests. Two breathalyzer tests were ultimately performed: (1) the first at 11:32 p.m. reflected a .19 reading; and (2) the second test at 11:40 p.m. also reflected a .19 reading. Defendant failed both tests and was charged with violating N.J.S.A. 39:4-50. When asked if he had consumed any alcohol that day, defendant admitted consuming two drinks, the first at 4:00 p.m. and the second at 6:00 p.m. Maloney prepared a written report as to the psychophysical tests performed at the scene and the administration and results of the breathalyzer tests. This report was provided to defendant's counsel in pre-trial discovery.
The issue in this appeal focuses upon the absence of any report prepared by Officer Ross. As noted, Ross stopped defendant for speeding in violation of N.J.S.A. 39:4-98. At the scene, Ross prepared a traffic summons, and although he was present when Maloney administered the psychophysical tests, he did not accompany Maloney and defendant to police headquarters. Ross did not prepare a police report. Thus, the forty to forty-five minute delay in Maloney's arrival was unknown to defendant's counsel until Ross testified as the State's first witness in the municipal court trial on October 10, 1996.
Officer Maloney was the State's second witness. After Maloney's direct testimony, the municipal court Judge recessed the proceedings during defense counsel's cross-examination. The proceedings continued on November 6, 1996.
At the November 6 hearing, Maloney's cross-examination was completed, whereupon the State rested without presenting any re-direct evidence. Defendant did not testify and defendant's counsel rested.
The following appears in defendant's summation.
Assuming the stop was good, there's another interesting issue which I did not brief at this time, and I'll have to brief it, if need be, is this unreasonable detention. Because I know there's a line of cases, and quite frankly I did not pull them out, and it's a highly legal issue. But there's a line of cases out there how long you can detain somebody before you decide ...