On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. 37-07-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, S. L. Reisner and Gilroy.
Defendant John F. Mize appeals from his conviction for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4- 50(a), after a trial de novo in the Law Division. Because it was his third conviction, defendant was sentenced to a ten-year suspension of driving privileges; $1,364 in fines, costs and penalties; and to 180 days in the Sussex County Jail. Defendant was granted leave to make application to serve ninety days of his jail sentence in an in-patient alcoholic rehabilitation program. The primary question presented on appeal requires us to again address the issue of what constitutes "operation" of a motor vehicle under the statute. Because we determine that the facts do not support a finding beyond a reasonable doubt that defendant had operated the motor vehicle to the location where it had been found, or that defendant had intended to move the motor vehicle prospectively, we reverse.
On November 22, 2004, defendant was issued three traffic summonses: DWI; refusal to submit to a breathalyzer test, contrary to N.J.S.A. 39:4-50.2;*fn1 and failure to notify the New Jersey Motor Vehicle Commission of a change of address, N.J.S.A. 39:3-36.*fn2
Defendant filed a motion to suppress evidence in the municipal court, challenging the probable cause for his arrest. Because the issue on the motion depended on the same facts required for a conviction, defendant consented to the municipal court simultaneously hearing evidence on the motion and on the trial of the charges. Patrolman Kuzicki, the only witness to testify at the proceeding, testified as follows.
At approximately 11:20 p.m. on November 21, 2004, the Vernon Township Police Department received several telephone calls from citizens complaining about the operation of a red pickup truck. Patrolmen Kuzicki and Reed were dispatched to locate the vehicle. While on patrol, Kuzicki observed a red pickup truck parked approximately twenty-five yards into the driveway of a private residence at 30 Juniper Road.
Following Reed's arrival at the scene, both patrolmen exited their motor vehicles and commenced walking toward the pickup truck. Upon observation, Kuzicki observed defendant "slumped over the steering wheel, with his head on the steering wheel"; the vehicle's interior dome light on; and keys in the ignition but the engine not "running."
After the two officers approached the vehicle, Kuzicki knocked on the door of the residence, intending to inquire whether any resident knew defendant was parked in their driveway. Although intoxicated, the male homeowner, a friend of defendant, answered the door. Kuzicki engaged the homeowner in a brief conversation, but did not testify as to the nature or substance of the conversation.
After talking to the homeowner, Kuzicki returned to defendant's vehicle where he and Reed knocked on the windows and woke defendant. Upon awakening, defendant became belligerent, used profanity, and struck Reed in the chest while exiting the vehicle. Kuzicki opined that defendant was intoxicated, describing him as having slurred speech, an odor of alcoholic beverage on his breath, and bloodshot, watery eyes. After defendant was arrested, he was transported to police headquarters where he refused to submit to a breathalyzer test. Although Kuzicki assumed that defendant had operated the motor vehicle to where it had been found, on cross-examination he candidly admitted that he was unaware as to "how the motor vehicle even got to its location."
During the proceeding, no evidence was adduced as to whether either officer had checked the hood of the motor vehicle at any time in order to determine whether it was warm, or had inquired whether the homeowner had operated the motor vehicle that night. Nor were there any statements from defendant from which one could infer that he had operated the motor vehicle to where it had been found or that he had intended to move the motor vehicle.
During the proceeding, the judge granted defendant's motion, striking Kuzicki's testimony concerning the telephone communications between the police dispatcher and the citizens, as well as the police dispatcher's statements to the two patrolmen, determining that the testimony was hearsay. However, the judge did admit the testimony, not "to prove the truth of the matter[s] asserted," but for the limited purpose of establishing why Kuzicki was in the area of Juniper Road when he observed the pickup truck in the driveway.
The municipal court judge acquitted defendant of refusing to submit to a breathalyzer test, concluding that there was an absence of proof that defendant had operated the motor vehicle on a roadway as required by the statute. N.J.S.A. 39:4-50.4a. The judge, however, found defendant guilty of DWI, inferring from the evidence that defendant had intended to move the motor vehicle. On appeal de novo challenging the DWI conviction, the Law Division judge found defendant guilty of DWI, determining that the evidence proved beyond a reasonable doubt ...