June 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN KANE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Appeal No. 9-2006.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2007
Before Judges Holston, Jr. and Grall.
Defendant Kevin Kane pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. He admitted that a blood test showed alcohol concentration of .11 percent but reserved his right to appeal from the denial of his motion to suppress the results of that test. See R. 3:5-7(d); R. 3:9-3(f).
Defendant contends that his arrest was not supported by probable cause and that the blood test obtained as a consequence of the unlawful arrest must be suppressed. Because the arresting officer had probable cause to believe that defendant had driven while intoxicated, we affirm.
At 3:58 a.m. on October 9, 2005, defendant, who was standing on the side of Collings Avenue near a park, waived his arms and got the attention of Sergeant Rydzewski, who was driving by in a police car. Sergeant Rydzewski stopped to talk to defendant and saw a second man lying in the street near the curb. Sergeant Rydzewski asked what happened. Defendant said "I think I hit him." He explained that the man had walked out in front of his car and he thought he might have hit him. Seeing that the man appeared to be unconscious and bleeding from the face and head, Sergeant Rydzewski called for an ambulance. Defendant's car was parked on a road in the park about 150 feet away.
Officer Kline, who was nearby, came to the scene to assist just before the ambulance arrived. He took defendant to his patrol car because it was cold and because he had just been involved in an accident. Officer Kline then checked defendant's car for damage and returned to the police car to get defendant's name and address in order to complete an accident report. When Kline opened the door, he smelled the odor of alcoholic beverages. After defendant acknowledged that he had been drinking and had a couple of beers, he was asked to perform field sobriety tests, which he passed. Officer Kline was directed to take defendant to headquarters for chemical testing.
At headquarters, defendant signed a card indicating that Officer Kline gave him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Officer Kline was directed to take defendant to the hospital for a blood test. Defendant, who at one point agreed to do "whatever he could to help" and at another "whatever he had to do," signed a form acknowledging his consent to the blood test. He was not told that he was not required to sign the form.
The judges of the Municipal Court and the Law Division concluded that the blood test was admissible. While it is not entirely clear that the Law Division determined that the arrest was lawful, because the facts as found by the court support a finding of probable cause for defendant's arrest prior to his blood test, we affirm. See State v. Carroll, 386 N.J. Super. 143, 146 (App. Div. 2006) (affirming for reasons slightly different than those given by the trial court); State v. Altenburg, 223 N.J. Super. 289, 291 (App. Div.) (same), aff'd, 113 N.J. 508 (1988).
Probable cause is "a well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within [the officers'] knowledge [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Moore, 181 N.J. 40, 45-46 (2004) (internal citations and quotations omitted) (third alteration in original). Although the arresting officer acknowledged that he took defendant to headquarters because he was directed to do so, an officer's intention to arrest is not determinative; "the crucial inquiry is whether the officer's conduct was objectively reasonable." State v. O'Neal, ___ N.J. ___, ___ (2007) (slip op. at 13).
Defendant stopped a police officer during the early morning hours. He explained that he thought he "might" have hit a pedestrian. The pedestrian, who had suffered head injuries, was lying in the street near the curb bleeding and unconscious. Because it was cold, an officer permitted defendant to sit in a police car while he inspected his car. Defendant had sufficient alcohol on his breath to permit the officer to detect the odor of alcoholic beverages in his police car when he returned to get the information he needed to complete an accident report. Defendant acknowledged that he had had a couple of beers.
Although he was able to perform simple sobriety tests in the field, defendant's capacity to do these tests did not obliterate the suspicion raised by the other evidence of intoxication -- odor of alcohol, admission of alcohol consumption and apparent uncertainty as to whether or not he stuck a pedestrian, whose condition suggested an impact that was far from minor. See N.J.S.A. 39:4-50 (directing officers to consider accidents resulting in injury along with other facts in determining whether there are reasonable grounds to believe that a driver is intoxicated).
For the foregoing reasons, we reject defendant's claim that his blood test must be suppressed because his consent was given as a consequence of an arrest that was not lawful.
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