On appeal from the Superior Court of New Jersey, Law Division, Warren County, Municipal Appeal No. A-18-08-Y18.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Defendant Joshua Putz appeals from his conviction of driving under the influence of alcohol (DUI), N.J.S.A. 39:4-50.*fn1 His driver's license was suspended for seven months and he was required to report to the Intoxicated Drivers Resource Center for twelve hours and pay a $307 fine, $33 in costs, $200 as a DUI fee, $50 Violent Crime Compensation Board assessment, and a $75 Safe Neighborhoods assessment.*fn2 We now reverse.
On March 7, 2008, Lopatcong Township Police Officer Robert Stefano was on patrol, working the 7:00 p.m. to 7:00 a.m. shift. At 2:00 a.m. on March 8 he was driving a patrol car northbound on Route 519 heading towards Route 57 just before a tunnel. He observed a vehicle parked in a gravel turnaround on the side of the road heading northbound just before the tunnel about five feet from the fog line with its lights on and the engine running, an unusual observation at that hour of the morning. Although he had driven through this area more than once since 7:00 p.m., he had not previously observed the vehicle. He did not know at what points in time he drove through this area that evening. The officer did not know whether the turnaround was on private or county property, but it was about fifteen feet from a long driveway going up to a horse farm. The turnaround was used to park tractor-trailers that drop off livestock at the horse farm. Stefano pulled in behind the vehicle and activated his emergency lights to check on the welfare of anyone inside.
Stefano observed one person in the vehicle, exited the patrol car, observed exhaust coming from the tailpipe, and approached the driver's side window. Defendant was asleep in the driver's seat, slouched over with his head tilted towards his lap and to the side. His feet were on the floor close to the gas pedal and brake. Because he could not see the driver breathing, he knocked on the window a few times to awaken him but was unsuccessful. Observing that the door was unlocked, he opened it, detected a strong odor of alcohol, heard the driver snoring, and poked him in the shoulder several times before he woke up. When Stefano asked defendant if he was alright, defendant said, "Hey," and then nodded his head. Stefano asked defendant for his driver's license and at that time noticed that the vehicle was a manual transmission and that the parking brake had not been set. Stefano asked defendant several times to set his brake and turn off his vehicle before he complied. Defendant, with some difficulty, then handed Stefano his license, registration, and insurance card.
The officer asked defendant if he had been drinking, to which he offered the standard reply that he had one or two drinks. When asked why he was parked there, defendant said he was waiting for his buddy. He also said that he had been at the Applebee's Restaurant in Phillipsburg. Stefano asked defendant to step out of his vehicle to perform field sobriety tests. Defendant stipulated that the subsequent breathalyzer test demonstrated that he was under the influence of alcohol at the time it was administered with a reading of 0.14.
Defendant and several of his witnesses testified at the suppression hearing and at the subsequent trial, which immediately followed the hearing.*fn3 Defendant testified that he was parked in the middle of the turnaround and that he had permission to park there, which he did on the evening of March 7. He intended to stay at the farm that night and had confirmed with his friend, Kim Gapinski, that she would be there. His friend Jeffrey Hackett picked him up and they went to Applebee's Restaurant on March 7 and remained there until around 11:00 p.m., when Hackett took him back to his vehicle. In the meantime, defendant's vehicle was being used by another friend, Patrick Fletch, who used it to go to Washington Township between 8:00 and 10:00 p.m.
When Hackett dropped defendant by his truck sometime between 11:30 p.m. and midnight, defendant relieved himself in the woods and then returned to his truck, where he sat because he was cold. On further questioning, he stated that Hackett dropped him off around 11:00 p.m. and that he hung out on his tailgate until midnight because he assumed that Gapinski would be cleaning the horses or taking care of something on the farm. He then turned his truck on to get some heat and made a call to Gapinski at 12:12 a.m. to come out and get him, but she did not answer the phone and he fell asleep.
Tuesday Remsburg, who leased the farm from the owner, required him to call her or one of her customers before he entered the farm; defendant had complied the twenty or more times he stayed there. Defendant acknowledged that the farmhouse was close enough to the road to walk there from his truck, but he did not do so because he had had quite a few beers to drink and he did not want to interrupt anyone riding their horses, since they were doing training lessons all night. He also testified that he would rouse the dogs, which would begin barking and then the sensor lights on the barn would come on. Defendant denied driving his truck after Hackett dropped him off, or even attempting to drive it.
Next to testify was Jeffrey Hackett who related that defendant met him at Hackett's place of business on March 7 between 6:00 and 7:00 p.m. Defendant had a couple of beers there and around 8:00 p.m. they each drove to the turnaround on Route 519 just before the tunnel, where defendant parked his truck so Fletch could borrow it, and they went to Applebee's Restaurant together in Hackett's Explorer. They arrived at the restaurant a little after 8:00 p.m. and stayed there until roughly 11:00 p.m. Todd Jason was also at the restaurant.
When Hackett dropped off defendant sometime after 11:00 p.m., defendant assured him that he was not going to drive the truck and that he was going to call Gapinski and stay on the farm. Hackett noticed that defendant's truck had been moved from its initial position in the turnaround. Defendant did not have his cell phone with him at the restaurant, but was going to retrieve it from his truck to call Gapinski. Hackett knew that defendant had to call before he went up to the farm so as not to spook the horses.
Jason testified that he had known defendant for ten years and had seen him at the Applebee's Restaurant in Phillipsburg on the evening of March 7. Jason had been sitting at the bar since 7:00 or 7:30 p.m. and saw defendant and Hackett arrive. He did not know how much defendant drank, but he did see Hackett and defendant leave around 11:00 p.m. Jason followed them out ...