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State v. Lo

July 31, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERMAINE R. LO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-037.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 26, 2009

Before Judges Reisner and Alvarez.

Defendant, Germaine R. Lo, appeals from her conviction for refusing to consent to the taking of a breath sample, N.J.S.A. 39:4-50.2, after a trial de novo in the Law Division. We affirm.

On August 31, 2007, defendant was issued a summons and arrested for reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, speeding, N.J.S.A. 39:4-98, failure to travel inside a designated lane, N.J.S.A. 39:4-88(d), possession of an open alcohol container in a motor vehicle, N.J.S.A. 39:4-51b, driving while intoxicated (DWI), N.J.S.A. 39:4-50, DWI in a school zone, N.J.S.A. 39:4-50(g), and, subsequent to her arrival and processing at the Wall Township Police Department headquarters, refusing to consent to the taking of breath samples, N.J.S.A. 39:4-50.2. After the municipal court judge found that there was a reasonable and articulable suspicion for the motor vehicle stop and probable cause for the DWI arrest, defendant entered a conditional guilty plea to the charge of refusal. The court suspended defendant's driving privileges for seven months, directed that she serve a period of twelve hours at an Intoxicated Driver Resource Center, and assessed appropriate fines and penalties. The sentence was stayed pending appeal.*fn1

Defendant challenged probable cause for the DWI arrest in the municipal court, in the Law Division proceeding, and in this appeal. Although defendant challenged the reasonable and articulable suspicion for the motor vehicle stop in her appellate brief and in the Law Division, counsel conceded in oral argument that the stop was lawful.

Given the factual circumstances that drew the officer's attention to defendant, this concession is warranted. A motor vehicle stop must be based on a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002). A defendant need not be convicted of the motor vehicle offense for which the stop was originally made. State v. Williamson, 138 N.J. 302, 304 (1994). In this case, as is detailed below, the arresting officer observed defendant speeding and weaving within her lane. Mere lane violations, such as occurred here, were sufficient to warrant a reasonable and articulable suspicion justifying the stop. See State v. Washington, 296 N.J. Super. 569 (App. Div. 1997). We will therefore not address this issue further.

Patrolman James Cadigan of the Wall Township Police Department was the State's sole witness at the municipal court proceedings and the officer who arrested defendant during the late evening hours of August 31, 2007. Cadigan testified that while driving northbound on Highway 35, he observed defendant's motor vehicle "operating at a speed higher than the posted rate," namely, fifty-five miles per hour in a forty-mile-per-hour zone. As Cadigan followed defendant's vehicle, he activated his radar system and clocked her speed. He observed defendant drift to the left from her lane of travel into the center turn lane, approximately a third of the way over the yellow dotted line designating the center lane.

After drifting, the vehicle quickly corrected, moving back towards the right, which caused the passenger side wheels to go over the white fog line onto the shoulder. The vehicle then slowly went back into its lane of travel and made a left onto Meetinghouse Road. Cadigan signaled for defendant to stop, and she immediately pulled over into a retail parking lot at approximately 10:41 p.m. When Cadigan asked for defendant's driving credentials, she was able to produce them without difficulty.

Defendant lowered her window to speak to the officer and Cadigan immediately smelled the odor of alcohol on her breath. He saw an open cooler in defendant's back seat containing partially stoppered, half-full whiskey and wine bottles. When asked where she had been, defendant responded that she had been shopping at an A&P supermarket, but admitted drinking "a glass of wine or half a glass of wine with dinner." Her face was flushed, her eyes watery and bloodshot, her lids droopy, and her speech slurred. Prior to the administration of field sobriety tests, the officer walked defendant closer to an adjacent retail store, a better lit and more level area. He used his flashlight and his overhead lights for additional illumination.

During defendant's performance of the walk-and-turn test, she lost her balance while being instructed, stopped while walking, stepped off the imaginary straight line with her entire foot, turned improperly, missed heel-to-toe contact by half an inch, and raised her arms more than six inches from her sides for balance. During the one-leg stand test, defendant put her foot down more than three times because she could not keep it elevated for the requisite period, raised her arms more than six inches, and swayed while balancing. Defendant was also administered the horizontal gaze nystagmus (HGN) test; however, the Law Division judge did not rely on the results due to Cadigan's limited credentials. Based on her flawed performance in the tests, Cadigan arrested defendant for DWI and the related offenses. At the station, she refused to submit to breathalyzer testing.

Defendant presented expert testimony during the trial to the effect that the field sobriety tests were improperly administered because she was wearing leather flip-flop sandals which impeded her performance. The expert also suggested that the officer should have offered defendant the opportunity to either change her shoes or take the test barefoot, and taken her to a more level area.

Defendant, her sister, and sister-in-law also testified. On the day of defendant's arrest, several family members were visiting defendant at her home in Wall Township. She left to have dinner with friends, driving to a restaurant in Watchung that allowed patrons to bring their own alcoholic beverages. Defendant testified that the open containers of alcohol were left over from dinner. After dinner, she returned home. According to defendant and her family, she drank no more than a mouthful or two of wine when they opened a bottle upon her return, as she did not care for its taste. Later on, defendant drove to the supermarket, with the open containers ...


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