On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal 06-057.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Following his arrest, in the early morning hours of January 28, 2006, defendant, Dosso Lova, was charged with the motor vehicle offenses of driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50, consuming an alcoholic beverage while operating a motor vehicle in violation of N.J.S.A. 39:4-51a, failure to maintain a lane in violation of N.J.S.A. 29:4-88b, reckless driving in violation of N.J.S.A. 39:4-96, and driving while his license was suspended in violation of N.J.S.A. 39:3- 40. Following denial of defendant's suppression motion, premised upon the claim that the arresting officer lacked a reasonable and articulable suspicion that defendant had committed a motor vehicle offence, defendant entered a conditional plea of guilty to the DWI charge. He was sentenced by a judge of the municipal court as a third offender to 180 days in the Monmouth County Correctional Institution, a ten-year loss of license, a three-year interlock requirement, and to appropriate fines and penalties. The remaining charges were dismissed. Upon appeal to the Superior Court and trial de novo on the municipal court record, defendant's conviction was affirmed, and his prior sentence was reimposed.
Defendant has appealed, claiming that:
THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE, CONSISTENT WITH LAW AND IS NOT REASONABLE IN SCOPE OR APPLICATION.
Testimony at the suppression hearing was given on behalf of the State by State Police Officer Juan Siso, who testified that, at approximately 1:28 a.m. on January 28, 2006, he observed defendant driving on the right, westbound side of Interstate 195 in Upper Freehold Township. At that location, the road consisted of two lanes in each direction, separated by a median. Rumble strips were present in the shoulder beyond the right or "fog" line demarking the extent of the right lane of travel. Defendant was driving in the right-hand lane.
Siso testified that he observed defendant for a distance of approximately three- to five-tenths of a mile. During that interval, defendant crossed the fog line on two or three occasions, deviating by two or three feet from the lane of travel and onto the shoulder. Also, during this period, defendant rode on the dotted line between the two westbound lanes on one or two occasions.
After making these observations, Siso activated his lights, causing defendant to stop. When asked if it was his practice to stop drivers in similar circumstances, Siso responded:
Yes. . . . [T]hat time of night you have many people get[ting] off work late, they're tired, we have more vehicle accidents, so we check on them. It's not always an indicator of someone under the influence of alcohol or narcotic, it could be just a tired driver and for their safety, we do check them.
After approaching the car, however, Siso smelled alcohol and observed an open Heineken beer bottle located in the passenger space. He therefore ordered defendant to leave the vehicle and, after defendant failed field sobriety tests, Siso arrested him. Subsequent breathalyzer readings showed defendant's blood alcohol content to be .16 and .17 percent.
At the conclusion of the hearing, defense counsel argued that the movement of defendant's vehicle was too slight to give rise to a reasonable and articulable suspicion that defendant had committed a motor vehicle offense. A legal brief on the issue was presented and, after considering it, the municipal judge denied defendant's motion, finding the cited legal precedent distinguishable, the testimony of Officer ...