February 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
FRANK J. BARNES, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 vehicle itself. We don't have those two factors.
There were four officers who collectively testified concerning the odor of alcohol and the slow, slurred speech of the Defendant. And I certainly see that gives rise to a reasonable, articulable suspicion but does that rise to probable cause?
In order for there to be probable cause, there has to be an indication that there is an inability . . . because of that alcohol or because of that intoxicant . . . to properly and appropriately operate a motor vehicle.
And there is a difference between a reasonable, articulable suspicion and probable cause. Probable cause would also have to include, again, that inability.
And it's because there was no evidence of his inability testified to by any of the four witnesses about any type of erratic operation of the motor vehicle, there is no evidence on the record that he was unable to perform a field sobriety test. Which would have then given rise, either one of those, coupled with the slow, slurred speech, as well as the odor of alcohol.
It would have been a sufficient basis for the Court to conclude that there [was] probable cause. But without that other link for the Court to be able to appropriately indicate that he was unable to operate a motor vehicle, I find that the Motion to Suppress should be granted.
The judge then concluded, "I will reverse the [d]ecision of the [m]unicipal [c]court  to deny the [m]otion to [s]uppress, as there's no sufficient basis to conclude that there was probable cause, and find the [d]efendant [n]ot [g]uilty." The State then filed this appeal.
The State initially argues that the issue of guilt or innocence was not before the Law Division judge, and that a reversal of the municipal court judge's decision on the motion to suppress should have only led to a remand. It argues that by issuing a verdict prematurely and in violation of the rules of court, the State was deprived of its right to an interlocutory appeal. As to the merits of the decision, the State argues the Law Division judge erroneously granted the motion to suppress and that the original determination made by the municipal court judge was correct. Thus, defendant's guilty plea should stand and sentence should be imposed.
Defendant argues that the State's appeal violates the double jeopardy provisions of the Federal and State constitutions because the Law Division judge properly rendered a verdict on his de novo appeal. Alternatively, defendant contends the Law Division's legal conclusion regarding the lack of probable cause for his arrest was correct.
We have considered these arguments in light of the record and applicable legal standards. We conclude the Law Division judge improperly rendered a verdict in violation of the applicable rules of court, and we also conclude that defendant's arrest was based upon sufficient probable cause and his motion to suppress was properly denied by the municipal court judge. Therefore, we reverse, and remand the matter to the Law Division to impose sentence upon defendant.
We begin by reviewing the comprehensive scheme embodied in our court rules that permit defendant to plead guilty in the municipal court yet preserve his right to appeal a determination of a legal issue raised by a motion to suppress evidence.
The municipal courts of the State are permitted to "entertain motions to suppress evidence seized without a warrant in matters within [their] trial jurisdiction . . ." R. 7:5-2(a). In general, the procedure set forth in the rule, "repeats the provisions of R. 3:5 to the extent they are relevant to municipal court practice." Pressler, Current N.J. Court Rules, comment 1 on R. 7:5 (2008).
In the municipal court, if a motion to suppress is denied, that order "may be reviewed on appeal from an ensuing judgment of conviction pursuant to R. 3:23 whether the judgment was entered on a guilty plea or on a finding of guilt following trial." R. 7:5-2(c)(2). A defendant may conditionally plead guilty after losing a motion to suppress, "reserving on the record the right to appeal from the adverse determination . . ."
R. 7:6-2(c). If the defendant then "prevails on appeal," he "shall be afforded the opportunity to withdraw the guilty plea." Ibid. The procedure we have outlined is precisely what happened in this case, except the Law Division judge did not permit defendant to withdraw his guilty plea, she simply found him not guilty.
The distinction is critical to the State's right to file an interlocutory appeal specifically provided for by our court rules. For example, pursuant to R. 7:5-2(c)(1), if the municipal court judge in the first instance grants a defendant's motion to suppress, "[a]ll further proceedings in the municipal court shall be stayed pending a timely appeal by the State, pursuant to R. 3:24." The State is accorded the opportunity to "appeal, as of right [to the Law Division] . . . an order suppressing evidence entered in a [municipal court]." R. 3:24(b). Likewise, under R. 2:3-1(b)(2), the State may seek leave to appeal from the Law Division's order granting a defendant's motion to suppress.*fn2
To the extent defendant argues our review is now barred by principles of double jeopardy because the Law Division judge concluded her decision by finding defendant not guilty, we reject such a contention. We previously considered a nearly identical situation in State v. Golotta, 354 N.J. Super. 477 (App. Div. 2002), rev'd on other grounds, 178 N.J. 205 (2003), a case that also involved a charge under N.J.S.A. 39:4-50. In Golotta, Defendant filed a motion to suppress the results of the breathalyzer test. Following an evidentiary hearing on his motion, the municipal court judge denied the motion. Defendant entered a conditional plea of guilty and filed a timely appeal in the Law Division. Following a de novo review of the record of the motion to suppress, the Law Division judge granted defendant's motion. He found the officer observed no activity by defendant which would warrant a stop but detained defendant solely based on the information from an anonymous caller. Therefore, he vacated the guilty plea and entered a judgment of acquittal. [Id. at 480.]
We granted the State's motion for leave to appeal and noted that the defendant urged us to affirm the acquittal, arguing "the police lacked an articulable suspicion to stop his vehicle and further  that the appeal [was] barred by principles of double jeopardy." Ibid.
Although we agreed with the Law Division judge that the stop of defendant's car was constitutionally infirm,*fn3 we addressed defendant's double jeopardy argument by noting, "[h]aving found that the stop was without cause and the evidence seized as a result of an unjustified stop should have been suppressed, the appropriate remedy was a remand to the municipal court for further action by the prosecutor." Id. at 483. We added,
The state of the record in this case was confined solely to the circumstances of the stop. The disposition by the Law Division judge of the motion to suppress was in no sense a resolution of the merits of the charged offense. Thus, the use of the phrase 'judgment of acquittal' is not a bar to the State's appeal. [Id. at 484.]
As a result, we ordered the Law Division to remand the matter for further proceedings in the municipal court. Ibid.
The circumstances here compel the same result. The Law Division judge's inopportune use of the phrase "not guilty" cannot serve as a basis to cloak this defendant with the protections of double jeopardy jurisprudence, particularly since defendant actually entered a guilty plea before the municipal court judge. The only appropriate action the Law Division judge could have taken was to grant defendant's motion to suppress and remand the matter to the municipal court for further proceedings. The State could have then either dismissed the complaint or have moved before us for leave to appeal, and the merits of defendant's motion would have then been before us for our review. It is to those issues that we now turn.*fn4
In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). We may not "'weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In this case, the Law Division judge specifically found the testimony presented by the State before the municipal court to be credible, and we have no reason to conclude otherwise.
A person violates N.J.S.A. 39:4-50(a) if he "operates a motor vehicle while under the influence of intoxicating liquor . . . or operates a vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in [his] blood . . . ." The statute creates a "single offense of driving while intoxicated . . . under which a defendant can be found guilty on alternate bases." State v. Kashi, 180 N.J. 45, 48 (2004); but see State v. Chambers, 377 N.J. Super. 365, 371 n.4 (App. Div. 2005)(questioning the continued vitality of Kashi's rationale in light of the legislative comments accompanying the 2004 amendment to N.J.S.A. 39:4-50(a) that lowered the BAC level to .08%).
The issue posed in this case is not whether the police had a reasonable and articulable suspicion that defendant was violating the motor vehicle laws, thus, justifying a stop of his van. Golotta, supra, 178 N.J. at 212-13. His van was already stopped before any observations were made as to his level of sobriety. We have already held that motor vehicle checkpoints designed to identify equipment violations or overdue inspection stickers are constitutionally permissible. State v. Kadelak, 280 N.J. Super. 349, 351 (App. Div.), certif. denied, 141 N.J. 98 (1995). Drivers stopped for such inspections and found to be intoxicated may be convicted based upon breathalyzer readings that result thereafter. Ibid.
Having legally stopped defendant's van, the next inquiry is whether the police had probable cause to arrest him for violation of N.J.S.A. 39:4-50. "[T]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer 'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). To establish probable cause to arrest for DWI, the State only needs to prove "by a fair preponderance of the evidence" that defendant was legally intoxicated. Karins v. Atlantic City, 152 N.J. 532, 559 (1998). In other words, in this case, the question to be answered is whether the evidence acquired after defendant's van was stopped demonstrated by a fair preponderance that he was probably either operating the vehicle while under the influence of intoxicating liquor, or operating the vehicle with a BAC greater than .08%. We believe the answer is undoubtedly in the affirmative.
The Law Division judge determined that the State had failed to carry its burden because there was no evidence that defendant was operating his van in an impaired manner and no field sobriety tests demonstrating impairment of his motor skills. However, we think it is clear from our discussion above that the State need not prove either of these things in order to support a finding that there was probable cause to believe defendant was violating N.J.S.A. 39:4-50.
First, it has long been recognized that the unsafe operation of the vehicle is not a prerequisite to proving a violation of N.J.S.A. 39:4-50. "[I]t is not essential to sustain the charge that the particular operator could not safely drive a car . . . . [P]roof that he could operate with safety will not, in and of itself, absolve him." Johnson, supra, 42 N.J. at 165. Therefore, the fact that defendant was not driving in an erratic manner is not dispositive of the issue of probable cause.
Nor is the failure to administer field sobriety tests the sine qua non of the probable cause determination. The Law Division judge used the lack of such tests in this case as a secondary basis for concluding the State lacked probable cause to arrest defendant. However, in State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993), the defendant maintained that the State failed to present any evidence "regarding what effect, if any, the consumption of alcohol [had] had on [his] physical and mental faculties." We concluded that the totality of defendant's behavior was sufficient to prove beyond a reasonable doubt his guilt under the statute, even though he was not administered field sobriety tests and was not actually driving the vehicle when arrested. Id. at 421-22.
By focusing upon the lack of evidence as to any particular fact or test, the judge incorrectly limited the inquiry a court must conduct when asked to determine whether probable cause existed. "In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)." State v. Moore, 181 N.J. 40, 46 (2004) (citing State v. Novembrino, 105 N.J. 95, 122 (1987)). "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" Moore, supra, 181 N.J. at 46 (quoting State v. Zutic, 155 N.J. 103, 113 (1998)).
Here, under the totality of the circumstances test, we believe there were more than sufficient facts known to the police to justify their arrest of defendant and their removal of him from the scene to police headquarters for the administration of a breathalyzer test. There was an odor of alcohol emanating from defendant's van, his speech was slow and slurred, and he had "trouble retrieving some thoughts from his memory." Defendant admitted that he had been drinking. His eyes were watery and the odor of alcohol on defendant's breath was "very strong." He appeared tired, and it was "almost an effort [for him] to hold his head in a normal position without having it nod a little bit." All of these circumstances demonstrate that defendant was probably violating N.J.S.A. 39:4-50 and justified the decision to arrest him.
We therefore reverse the judgment of the Law Division, and remand the matter for the imposition of sentence based upon defendant's plea of guilty to a violation of N.J.S.A. 39:4-50. We do not retain jurisdiction.