On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. 2006-059.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Lintner and Graves.
After a trial de novo in the Law Division, defendant Eugene Mahon appeals from his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). Defendant presents the following arguments for our consideration:
CONSTITUTIONAL PRINCIPLES APPLICABLE HERE MAKE IT CLEAR THAT THE TROOPER VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES BOTH AS TO THE STOP AND ARREST.
A. THE STOP HERE VIOLATED THE CONSTITUTION BECAUSE DEFENDANT COMMITTED NO VIOLATION OF LAW AND WAS NOT REASONABLY SUSPECTED OF ANY.
B. THE ARREST HERE WAS INVALID BECAUSE THE TROOPER'S OBSERVATIONS FAILED TO ESTABLISH A REASONABLE OBJECTIVE BASIS TO SUSPECT THAT DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL.
THE EVIDENCE (OBSERVATIONS OF THE WAY DEFENDANT DROVE, ODOR AND ADMISSION OF DRINKING, AND BLOODSHOT WATER[Y] EYES) AND ABSENCE OF OTHER EVIDENCE (BREATH OR BLOOD ALCOHOL RESULTS OR ANY OTHER FACTS EVEN INDICATING THE INFLUENCE OF ALCOHOL) NOT ONLY FAILED TO ESTABLISH BEYOND REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL BUT AFFIRMATIVELY ESTABLISHED HIS INNOCENCE.
Based on our review of the record and applicable law in light of the contentions advanced by defendant, we affirm the Law Division judge's decision to deny defendant's motion to suppress, but we remand for additional factfinding on the ultimate issue of defendant's guilt or innocence.
At approximately 12:50 a.m. on the morning of January 27, 2006, New Jersey State Police Troopers David S. Schlatter and Mark Maloney were patrolling westbound Route 280 when they stopped to aid the operator of a disabled vehicle on the shoulder of the road "[b]etween Exit 8 and Exit 9." After "checking [the] person [in the disabled vehicle] to make sure that they were all right" the troopers proceeded back to their patrol car, which was parked behind the disabled vehicle. Trooper Schlatter testified that while walking back to the police vehicle, he observed a Mercedes Benz SUV traveling at approximately seventy-five miles per hour, "swerve over" and come within two feet of hitting him. However, the Mercedes, which was driven by defendant, did not "leave the designated right [hand] lane" in which it was traveling or enter the shoulder of the highway. The troopers ran back to their car, activated its overhead lights, and stopped the Mercedes at exit eight on westbound Route 280. The distance between the disabled car and the spot where defendant was pulled over was "less than half a mile."
Upon approaching the driver's side of the Mercedes, Trooper Schlatter observed that defendant was by himself and, while defendant was producing his driver's license and registration, the trooper "immediately detected an odor of alcoholic beverage." The trooper also noticed defendant's "speech was slow," his eyes were "watery and red, bloodshot," and his "clothes were mus[sed]." Trooper Schlatter asked defendant if he "had been drinking," and defendant ...