On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal Number 72-03.
Before Judges Petrella, Lintner and Parker.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2004
In this appeal, defendant challenges the stop of his vehicle after he made a lawful turn at an intersection within a two-block DWI checkpoint zone. He argues that, in the absence of signs prohibiting turns, the police lacked probable cause to stop his vehicle and that evidence of his refusal to submit to a breathalyzer test after the stop should have been suppressed.
After the municipal court judge denied defendant's motion to suppress, the matter was tried and defendant was found not guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, but guilty of refusal to submit to a breathalyzer test (refusal), N.J.S.A. 39:4-50.4(a). Defendant appealed to the Law Division, which also denied his motion to suppress and found him guilty of refusal after a de novo review.
The checkpoint at issue was in Ventnor City on Atlantic Avenue, a four-lane highway, at the intersection of Newport Avenue. Pursuant to a general order of the Ventnor City Police Department, the checkpoint was established on the eastbound lanes of Atlantic Avenue on July 20, 2003, between the hours of midnight and 5:00 a.m. The initial sign, indicating the checkpoint, was located on the double yellow line at the center of the intersection of Atlantic and Avolyn Avenues, two blocks from the checkpoint itself. The sign was eight to nine feet tall, made of reflective material and read, "DWI Checkpoint." There was a large reflective construction barrel in front of the sign and orange cones on the double yellow line behind it, which created a funnel to move the traffic into one lane. The cones did not block the intersections within the two-block checkpoint zone. Two more signs were posted before the stop sign at the actual checkpoint, one of which was at the second intersection of Atlantic and New Haven Avenues. None of these signs indicated that turns were prohibited.
Officer Francisco O'Neill, who was assigned to operate a chase or transportation vehicle for the checkpoint, was directed by his lieutenant to stop any vehicle that entered the checkpoint zone and attempted to avoid the checkpoint. O'Neill was in a marked police car positioned at the intersection of Atlantic and Avolyn Avenues, facing west, away from the checkpoint. He saw defendant's vehicle come down Atlantic Avenue and make a left turn onto Avolyn Avenue. There was no barrier at the intersection to prevent a left turn, nor were there any signs advising drivers that a left turn was prohibited. O'Neill followed defendant's vehicle on Avolyn Avenue and stopped it. The officer testified that after he stopped the vehicle, he observed that defendant's eyes were glassy, he noticed an odor of alcohol on defendant's breath and that defendant's speech was "a little bit slow, slurred." Defendant told O'Neill that he turned onto Avolyn Avenue because he was going to his home a short distance away on Calvert Avenue. Defendant was arrested and charged with DWI and refusal.
In this appeal, defendant argues:
THE STOP OF DEFENDANT'S MOTOR VEHICLE WAS NOT CONSTITUTIONALLY JUSTIFIED AND ALL EVIDENCE OBTAINED THEREBY SHOULD HAVE BEEN SUPPRESSED.
There is no dispute that the checkpoint was established in accordance with State v. Kirk, 202 N.J. Super. 28, 56-58 (App. Div. 1985). Rather, defendant contends that the checkpoint signs failed to give fair and reasonable notice to oncoming motorists that they could not turn off of Atlantic Avenue onto the two intersecting streets before the actual checkpoint. Defendant argues that the police department "merely had to put up another sign or add to the existing sign the words 'no left turn.' Alternatively, a sign could have said 'stay straight,' 'no turns,' 'you are in a DWI checkpoint zone,' or the like." The State maintains that there were adequate signs and markers indicating that the traffic was to proceed to the checkpoint and contends that when defendant made his turn onto Avolyn Avenue, he had already passed signs indicating the roadblock ahead.
The United States Supreme Court has specifically held that DWI checkpoints are "consistent with the Fourth Amendment" because "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program." Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 2488, 110 L.Ed. 2d 412, 423 (1990). We adopted a similar standard under the New Jersey Constitution in Kirk, supra, 202 N.J. Super. at 34-36. We have further held that a DWI roadblock need not "provide an opportunity for motorists to avoid the checkpoint or refuse to participate." State v. Hester, 245 N.J. Super. 75, 81 ...