The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Keefe and Steinberg.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
On March 18, 1999 defendant was charged in Long Beach Township with violating N.J.S.A. 39:4-50, driving while intoxicated (DWI), and N.J.S.A. 39:4-88, driving out of marked lanes. At that time, defendant, an attorney-at-law of this State, was the judge of the Long Beach Township Municipal Court. He has since resigned his position. His attorney filed a motion to suppress. Presumably because of defendant's position as judge of the municipal court in the municipality in which the offense arose, Judge Edward J. Turnbach, of the Law Division, was assigned to hear the case. In addition, the Ocean County prosecutor's office superseded in the prosecution. Judge Turnbach denied the motion to suppress. Defendant had agreed to certain stipulations which the judge then placed on the record.
Relying upon the breathalyzer readings of .14 and .13, the judge found defendant guilty of DWI. In addition, the judge concluded that the Drinking Driving Report, and the On-Scene Sobriety Check List, both of which were stipulated into evidence, convinced him, beyond a reasonable doubt, that defendant was, in fact, under the influence of alcohol at the time of the offense. The judge also found defendant guilty of failing to operate his vehicle entirely within a marked lane of travel. On the DWI charges, the judge sentenced defendant to pay a fine of $500, and a DWI surcharge of $100. In addition, he required defendant to perform thirty days of community service, and serve forty-eight hours in an Intoxicated Drivers Resource Center. The judge also suspended defendant's driver's license for two years, and imposed the appropriate minimum monetary penalties and assessments. Finally, the judge imposed a $50 fine on the violation of N.J.S.A. 39:4-88. All penalties have been stayed pending this appeal. We affirm.
According to the State's proofs, on March 18, 1999 at approximately 1:00 a.m., Sargeant Paul Hafner of the Long Beach Township Police Department was on patrol when he heard a radio transmission from Patrolman Gerard Traynor. Traynor said he was checking a house that was under construction, which had a light on in the bottom section of the house. Hafner proceeded towards the area of the house in order to offer Traynor assistance. As he was proceeding north on Long Beach Boulevard, he observed a silver four-door sedan "crossing over the right - - the right line that delineates the shoulder of the roadway, periodically crossing over and actually operating with his vehicle halfway over the shoulder, down the roadway." He described Long Beach Boulevard as a "two-lane highway, with left lane. It's a shoulder on the left side of the left lane. There is a dotted line down the middle, separates the left and the right. And there is a short line on the right-hand lane."
Hafner said he was directly behind the sedan, and followed it for "[a] little over a mile." During that period of time he observed the vehicle cross over the solid shoulder line to the right "numerous times . . . [and] was actually operating over the shoulder line for a period of time." However, Hafner conceded that his report did not say that defendant drifted over the line numerous times, but stated that defendant's vehicle drifted over the line and continued to proceed for a while over the line.
While following the vehicle, Hafner said he observed Traynor's vehicle with the interior light on, off the roadway. After passing Traynor's vehicle, Hafner continued north on Long Beach Boulevard for approximately two-tenths of a mile when he activated his overhead lights. The driver of the sedan tapped his brakes immediately, and proceeded to operate slowly for approximately five or six-tenths of a mile. He then made a right-hand turn onto Hudson Street, and proceeded "halfway up Hudson Street" before coming to a stop. At that point Hafner did not know who was operating the sedan. As Hafner approached the sedan he realized that defendant was the operator. Hafner said he asked defendant if he was okay, and he responded: "Was I driving bad?" Hafner asked defendant how much he had to drink, and defendant responded "too much." He said he asked defendant if he was okay because defendant was not looking at him, his head was down and he appeared to be disoriented.
At Hafner's request defendant exited his vehicle. Traynor had arrived on the scene. Hafner asked defendant to produce his driver's license, registration and insurance card. Defendant reached into his vehicle, produced his wallet, and gave Hafner his Social Security card.
Patrolman George Schnell testified that upon Hafner's request at the police station, he accompanied defendant outside in order to permit defendant to smoke a cigarette. According to Schnell, defendant said he "may have been drifting, but he didn't think he was doing that bad." Defendant also stated he felt he was drunk, and that it was ironic that he had made it from Toms River to the point where he had been stopped, approximately two miles from his house.
Defendant presented the testimony of Traynor, who was also a fourth year law student. He corroborated Hafner's testimony that he was investigating a light on in a building under construction and notified the dispatcher. According to Traynor, ordinarily other officers would not proceed to the area as backup. Traynor testified that he checked the home, determined that the light had been inadvertently left on, advised communications, and returned to his patrol car. Traynor said he was about to re-enter the road, looked to his left, and noticed two cars a distance away. He decided to wait, since it was "Saint Patrick's night, and see what -- see what comes up." He decided to back up a little to let the cars pass him since he "was hoping they wouldn't see me when I came behind them." Traynor said he observed no erratic driving, and one car was directly behind the other. He said it appeared as though "it was one car." Traynor said he never observed defendant's car cross over the white line onto the shoulder. In addition, he said he would "have been able to see it if it were."
Traynor also testified that later that evening he went to defendant's home to ask the results of the breathalyzer and what defendant did "to get pulled over."
Traynor said he reviewed Hafner's report and did not agree with its contents. Accordingly, he went to see Captain Leslie Houston. Houston told Traynor not to do anything, and she would speak with the Chief. However, according to Traynor, Houston never got back to him. Traynor said he was then called to the Ocean County prosecutor's office, and was interrogated over a four hour period of time by a number of officers in what he characterized as "an ...