On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal Docket No. 010-04-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Defendant Jon P. Demarest appeals from an order entered on May 8, 2008 finding him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, after de novo review. Defendant entered a guilty plea in the municipal court after his motion to suppress was denied. Because it was his third DWI conviction, defendant was sentenced to a term of 180 days in the county jail, a ten-year suspension of his driver's license, a $1,000 fine and mandatory penalties.
The facts adduced from the suppression hearing are as follows. On January 30, 2006, Oakland Police Officer Paul O'Keefe stopped at a Krauszer's Food Store on Route 202 for coffee. While he was in the store, he saw a man, later identified as defendant, stumble while talking on a cell phone. O'Keefe overheard defendant asking if someone was coming to pick him up. O'Keefe detected an odor of alcohol coming from defendant, which led him to leave the store intending to observe defendant to make sure he did not drive away.
O'Keefe pulled out of Krauszer's parking lot and into the firehouse parking lot across the street so he could have an unobstructed view of the Krauszer's lot. After two to three minutes, O'Keefe drove around the store to see if defendant was still inside. He did not see defendant inside the store but as he made a left-hand turn onto Route 202 south, he saw defendant walking on the sidewalk. As O'Keefe was watching, defendant turned onto Maple Avenue and continued walking onto Raritan Road back toward Krauszer's.
After defendant walked all the way around the block and back to the Krauszer's parking lot, O'Keefe got out of his patrol car and walked across an adjacent parking lot to observe defendant through a fence. O'Keefe testified that it was a stockade fence with "quite a few gaps in" it. As he watched, defendant got into a silver pickup truck, which was not running at the time, and continued talking on the cell phone.
O'Keefe continued to observe defendant for ten to fifteen minutes, when "[a]ll of a sudden... the truck started up and [defendant] backed out of the parking lot." Defendant was alone in the vehicle.
O'Keefe ran to his patrol car and pulled behind defendant at a stop sign where defendant made a right-hand turn onto Route 202 north. O'Keefe followed him "to observe his driving" and saw defendant come "extremely close" to a vehicle and "almost [strike] the parked car,... then veer back to the left, over the double yellow lines." At that point, O'Keefe activated his overhead lights and pulled defendant over.
O'Keefe testified that as he waited for defendant to give him his license, registration and insurance card, defendant "dropped some of the paperwork he was fumbling for... by the center console. And... picked it up shortly thereafter. He produced all the proper paperwork." O'Keefe asked defendant if he had been drinking and defendant said he drank a bottle of wine earlier.
O'Keefe then asked defendant to get out of the car and administered field sobriety tests. Defendant was unable to recite the alphabet beyond the letter "P" on several tries, but he completed the "Romberg test" -- standing with his head tilted back and his eyes closed -- and the "torso bend test." O'Keefe testified that defendant was swaying on the torso bend test, however. At that point, O'Keefe placed defendant under arrest, handcuffed him and placed him in the police car for transport to police headquarters.
In a written decision dated July 3, 2007, the municipal court made extensive findings of fact and denied defendant's motion to suppress. Defendant then entered a guilty plea and appealed to the Law Division. On May 1, 2008, after de novo review, the Law Division made its findings of fact, affirmed the ...