On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. 60-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Axelrad and Messano.
On May 10, 2006, at approximately 1:00 p.m., employees of the New Jersey Motor Vehicle Commission (MVC), with the assistance of members of the Monroe Township Police Department, were operating a motor vehicle checkpoint at the intersection of County Road 654, County Road 610, U.S. Highway 322, and South Main Street in Monroe Township. Their purpose was to identify vehicles being operated with Title 39 violations, such as expired inspection stickers.
Patrolman James Kelly noticed defendant Frank J. Barnes operating a van with an expired, rejected inspection sticker. Kelly directed defendant to pull into a vacant lot being utilized by the inspection team, and defendant complied. Kelly noticed nothing abnormal about defendant's operation of the van. However, once in the lot, the supervisor of the inspection team and MVC employee, Frank Staff, approached the vehicle and spoke with defendant. Staff detected an odor of alcohol, told defendant to remain in the van, and informed police Corporal Craig Monahan.
In speaking to defendant, Monahan detected an "odor of alcohol emanating from the vehicle," noticed defendant's speech was "slow and slurred," and that he had "trouble retrieving some thoughts from his memory." Defendant admitted that he had been drinking. Monahan asked defendant to exit the van, escorted him to his marked police patrol car, and asked him to sit in the rear of the car. Defendant "polite[ly]" complied. Monahan then walked over to his supervisor, Lieutenant Anthony Pace, and advised him of the situation.
Pace spoke to defendant as he sat in the rear seat of the patrol car and noted the smell of alcohol on defendant's breath. Pace then used his cell phone to confirm that defendant was an off-duty, full-time officer with the Washington Township Police Department. He then returned to defendant and "spoke to him for some period of time." During the ensuing three to four minutes, Pace asked defendant a "series of questions as to where  he [was] going, how much did he have to drink, things like th[at]," and observed "his responses and his mannerisms."
Pace described the alcoholic odor on defendant's breath as "very strong," and noted "when [he] opened the door . . . the odor was incredible coming out of the back of the car." Pace observed defendant's "appearance [as] that of an individual who was very tired," and that it was "almost an effort [for defendant] to hold his head in a normal position without having it nod a little bit." Defendant's "eyes were watery, and his speech was slurred." Pace concluded that defendant was "impaired by alcohol." Pace placed defendant under arrest, and transported him to headquarters in his police car.
Pace "deliberately" did not conduct a field sobriety test of defendant at the scene of the inspection because "to do so would just create an additional embarrassment for the officer, and [because his] opinion was [already] formed." Once they arrived at police headquarters, Pace took defendant directly into the processing room to be tested on an Alcotest breathalyzer machine.*fn1 Although defendant cooperated throughout the arrest and testing, he "politely declined to participate in the psycho[-]physical [tests] inside the police headquarters building."
Defendant moved in the municipal court to suppress the results of the Alcotest arguing that the police lacked probable cause to arrest him. After hearing the testimony as we have recited above, the municipal court judge concluded that the police had "a reasonable and articulable suspicion that  defendant was under the influence" of alcohol and denied the motion to suppress. Defendant then pled guilty to the DWI charge, while preserving his right to file a de novo appeal, and the prosecutor dismissed the remaining motor vehicle summonses. The municipal court judge suspended defendant's motor vehicle license for seven months, imposed the appropriate fines and penalties under N.J.S.A. 39:4-50, and stayed the sentence pending defendant's appeal.
On November 30, 2006, defendant filed a de novo appeal of the conviction with the Law Division. On June 1, 2007, the matter was heard before the Law Division judge and defendant argued, as he did in the municipal court, that the police lacked probable cause to arrest him. The Law Division judge accepted the municipal court's credibility findings. However, the judge, noting no field sobriety tests had been administered to defendant, reasoned
[I]t's not whether he was operating [the van]. Again, it's whether he . . . could properly operate it. And again, one of the reasons why a field test is given is to see whether the person's ability to properly operate is impaired.
And ways to show that, the impairment, is to show whether he could pass a field sobriety test or whether there was some problem with the way he was operating the ...