On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-56-12-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...