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State v. White

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MEGHAN R. WHITE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-56-12-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2008

Before Judges Parker and LeWinn.

Defendant Meghan R. White appeals from an order entered in the Law Division on July 24, 2007, affirming her conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, following de novo review. We affirm.

The DWI charge arose during the early morning hours of November 13, 2005. At that time, Hopatcong Police Officer Meghan McCluskey was on duty, driving a marked patrol car southbound on Lakeside Boulevard in Hopatcong Borough, directly behind defendant. Officer McCluskey observed defendant's vehicle "drift off to the shoulder several times." The officer followed the vehicle as it continued to drift, and found it suspicious that the vehicle was meandering between the middle yellow lines and the white fog line at the shoulder. At no time did Officer McCluskey observe the vehicle cross either of those lines; rather, she observed continual swerving between them.

The vehicle then entered the center turning lane on Lakeside Boulevard, apparently intending to make a left turn onto Edsall Road. Officer McCluskey noted that the vehicle "slowed down dramatically, even while turning," and described it as "driving extremely slow." The officer also observed an air freshener hanging from the stem of the car's rearview mirror.

While defendant's vehicle was still in the turning lane, the officer activated her cruiser's digital video device and overhead lights, and stopped defendant's car. When asked why she hit the record button at that point, Officer McCluskey answered, "[b]ecause [she] saw [defendant's car] drifting over to the shoulder of the road," and that drifting alerted her to the possibility that the vehicle was being operated in an unlawful manner. The video recording continued during the entire stop of the vehicle until defendant was placed under arrest. A DVD of this recording was admitted into evidence at both the municipal court and the Law Division trials.

Officer McCluskey issued three summonses to defendant: (1) obstruction of the windshield, in violation of N.J.S.A. 39:3-74; (2) DWI, in violation of N.J.S.A. 39:4-50; and (3) reckless driving, in violation of N.J.S.A. 39:4-96.

In the municipal court, defendant brought a motion to suppress the results of the breathalyzer test administered on the night of her arrest. The municipal judge denied the motion, finding that the initial stop was justified by the police officer's community caretaking function. Defendant thereupon entered a conditional plea of guilty to the DWI charge, preserving her right to appeal the denial of her motion to suppress to the Law Division; the other two charges were dismissed as part of the plea agreement. When giving the factual basis for her plea, defendant acknowledged that her breathalyzer reading was .17.

The municipal judge sentenced defendant to a seven-month revocation of her driving privileges, twelve hours of Intoxicated Driver Resource Center training and $764 in fines. The judge stayed the sentence for a period of twenty days pending appeal.

Defendant's appeal to the Law Division was "heard de novo on the record" pursuant to Rule 3:23-8(a). The trial judge reviewed the DVD of defendant's operation of her vehicle in the time period immediately preceding the stop. After hearing counsels' arguments, the judge rendered a decision from the bench denying defendant's motion to suppress.

The judge found that the vehicle's "wandering" within the lane of travel, together with defendant's extremely slow execution of a left-hand turn, adequately supported a reasonable and articulable suspicion on the part of the police officer that a motor vehicle violation had occurred. The judge stated: "So, I think that the DVD is ultimately decisive here. . . . I reviewed it . . . six or seven times. . . . [M]y conclusion is that it does present a sufficiently concerning picture of a car not being operated completely competently to justify the motor vehicle stop."

On appeal, defendant presents the following arguments for our consideration:

POINT I THE LOWER COURTS ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANT'S VEHICLE WAS WITHOUT PROBABLE CAUSE

POINT II THE LOWER COURTS ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE SINGLE PROBABLE CAUSE COMPLAINT ISSUED BY THE OFFICER WAS BASED UPON HER MISTAKE OF LAW AND HER MISUNDERSTANDING OF THE ACTUAL PROSCRIPTION OF N.J.S.A. 39:3-74

POINT III THE LOWER COURTS ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE EVIDENCE IN THE MUNICIPAL COURT AND AT THE TRIAL DE NOVO DID NOT SUPPORT THE CONCLUSION THAT THERE WAS A REASONABLE AND ARTICULABLE BASIS FOR THE STOP

(A) The alleged meandering of defendant's vehicle between the center line and the side line during its operation over irregular topography and through compound vertical and horizontal curves did not provide probable cause for the stop; and

(B) The alleged slow movement of [d]efendant's vehicle while executing a lawful left-hand turn did not provide probable cause for the stop POINT IV THE LOWER COURTS ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANT'S VEHICLE CANNOT BE SUSTAINED UPON THE COMMUNITY CARETAKING EXCEPTION TO THE REQUIREMENT FOR PROBABLE CAUSE POINT V THE LAW DIVISION ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE IT "DEFINITIVELY" FOUND THAT DEFENDANT'S DRIVING CONDUCT WAS "NOT SUFFICIENT" TO SUSTAIN A D.W.I. CONVICTION, BUT NEVERTHELESS INCONSISTENTLY FOUND THAT SUCH DRIVING CONDUCT WAS STILL SUFFICIENT TO JUSTIFY A STOP

Having reviewed these contentions in light of the record and the applicable law, we conclude that they are without merit.

R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the trial judge in his decision rendered from the bench on May 9, 2007.

The issue before us is whether there is "sufficient credible evidence" in the record to uphold the judge's findings made at the conclusion of the trial de novo. State v. Johnson, 42 N.J. 146, 162 (1964). We note that defendant's five arguments set forth above all raise essentially the same contention, namely that the stop of defendant's vehicle was not justified. Those arguments, however, ignore Officer McCluskey's testimony that she observed defendant's vehicle swerving in its lane of traffic and that defendant "slowed down dramatically" to make a left turn. Defendant's erratic driving was recorded on the DVD.

Defendant argues that because the Law Division judge described her driving as "not grossly bad," after viewing that DVD, neither her swerving nor her slow left turn gave the officer probable cause to stop her vehicle. That argument, however, misstates the Law Division judge's findings, which were as follows:

My understanding of the transcript that I reviewed, is, in effect, that the officer pulled over the driver after making the observations primarily that are shown on the DVD. Although it's not the case that the DVD is as good as eye vision, I think that it's fair to say it gives a pretty good understanding of what the driving conduct was. My review of the tape is that the driving was not grossly bad.

In other words, I don't think it's fair to characterize the car as having gone grossly over any of the lines. It's more wandering in the lane. To the right and to the left.

There was also -- I agree with the characterization by the officer -- a dramatic or at least extremely slow turn towards the end of the period of observation.

And, based on these observations, the officer then made a motor vehicle stop shortly after the car had turned left.

As I mentioned, the driving was not grossly bad. And, in fact, there was evidence produced that there were certain artifacts on the road that might explain why someone might move to the right or the left. So, it could have been the case that after the motor vehicle stop, the . . . police officer assessed the situation, and would not issue any summons for driving while intoxicated.

But the question comes back to whether what is testified to in, and what is shown on, the DVD is a sufficient basis. And, as I say, I conclude that it is. The driving is not grossly bad. But I think it's fair to characterize it as showing what may very well be an impaired driver. It had, in my opinion, the characteristic drift that I think people who are familiar with people driving under [the] influence will exhibit.

Again it wasn't grossly bad. It wasn't someone wandering into the oncoming lane of traffic, but it was sufficient to at least allow the officer to make an investigative stop.

Contrary to defendant's assertion, the summons she received for an obstructed windshield was not the "single probable cause complaint" justifying the stop of her vehicle. Defendant contends that the "chronological and sequential order in which the three . . . summonses were apparently issued[,]" is of dispositive significance. The first summons defendant received was for an obstructed windshield under N.J.S.A. 39:3-74; however, the air freshener hanging from defendant's rearview mirror did not violate that statute. Therefore, defendant contends, "Officer McCluskey had obviously gathered no [evidence] sufficient to charge" defendant with DWI prior to the stop.

Defendant's reliance upon State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005) in support of this argument, is misplaced. There, a police officer was driving behind the defendant's car, which bore commercial license plates. Because the vehicle had "no placard on the right side . . . displaying the name and address of the business[,]" as required by N.J.S.A. 39:4-46(a), id. at 380, the officer stopped the defendant's vehicle believing that it was being operated in violation of that statute. Based upon the officer's observations of the defendant following the stop, defendant was issued summonses for DWI, failure to exhibit an insurance card and violation of N.J.S.A. 39:4-46(a).

The defendant filed a motion to suppress in the municipal court. The police officer testified that "he had no basis on which to stop defendant's car other than the apparent violation of [the statute]." Ibid. The municipal court denied the motion to suppress, and the defendant entered a guilty plea to the DWI charge. On de novo review, the Law Division judge also denied the defendant's suppression motion. Id. at 381.

In reversing, we noted that the statute invoked by the police officer as justification for his initial stop of the defendant's car, "[b]y its plain and unambiguous terms[,] . . . d[id] not apply to 'passenger vehicles.'" Id. at 382. Thus, the defendant's car "was stopped based on an entirely erroneous reading of the statute." Ibid. We concluded, therefore, that the officer "had no objectively reasonable basis to support his conclusion that defendant's car was being operated in violation of N.J.S.A. 39:4-46(a). As a result, his stop of the vehicle was unlawful and defendant's motion to suppress should have been granted." Id. at 384.

By contrast here, Officer McCluskey had ample reason to form an "articulable and reasonable suspicion" that a violation of N.J.S.A. 39:4-50 (DWI), was occurring. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed. 2d 660, 673 (1979). Having observed defendant's erratic driving, Officer McCluskey had the right to make a brief investigatory stop of defendant's motor vehicle on the public highway; the officer needed only an "articulable and reasonable suspicion" that a violation of motor vehicle laws had occurred in order to justify that stop. Ibid. See also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997), holding that "[i]t is firmly established that a police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense."

Defendant's argument that the stop of her vehicle was not sustainable based upon the "community caretaking exception to the requirement for probable cause," is immaterial. While the municipal judge may have premised his denial of defendant's motion to suppress at least in part on that concept, the Law Division judge expressly rejected it in his de novo review. The judge denied defendant's motion to suppress based upon "what [wa]s shown on the DVD and what [wa]s testified to[,]" which he found to be "a sufficient basis for the motor vehicle stop."

To the extent that any of defendant's other arguments have not been addressed herein, we consider them "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).

Affirmed.

20090526

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