On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 07-029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on October 27, 2009
Before Judges Fuentes and Simonelli.
After a trial de novo in the Law Division, defendant Terence Culpepper appeals from his conviction for speeding, N.J.S.A. 39:4-98, driving while intoxicated (DWI), N.J.S.A. 39:4-50, and being under the influence of any controlled dangerous substance, N.J.S.A. 2C:35-10b. On appeal, defendant does not challenge the Law Division's decision. Rather, he challenges the municipal court's alleged errors and the municipal prosecutor's alleged improprieties, which the Law Division rejected. Defendants arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following.
On appeal from the municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a). The Law Division must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court, and must give due regard to the opportunity of the municipal court to assess the credibility of the witnesses. State v. Johnson, 42 N.J. 146, 157 (1964).
On appeal from a Law Division decision, the issue is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. Id. at 162. However, as with the Law Division, we are not in as good a position as the municipal court to determine credibility, and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, supra, 42 N.J. at 161-62). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We, too, give due regard to the municipal court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
Based upon these standards and our review of the record, we conclude that there is sufficient credible evidence to support the Law Division's findings, including that probable cause existed to arrest defendant and to take a urine sample. To make an arrest for DWI, the arresting officer need only have "'reasonable grounds to believe' that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (alteration in original) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)). Reasonable grounds can be based solely on the officer's observations. See State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that "observational evidence" may be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI."), aff'd o.b., 293 N.J. Super. 535 (App. Div. 1996): See also State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993) (holding that defendant's slurred speech, loud and abusive behavior, disheveled appearance, red and bloodshot eyes, together with the strong odor of alcohol were sufficient to sustain DWI conviction); Moskal, supra, 246 N.J. Super. at 20-22 (holding that defendant's flushed face, "drooping and red" eyes, the strong odor of alcohol, and an admission of drinking established probable cause for arrest).
Here, a police officer stopped defendant's vehicle after a radar unit confirmed that defendant was traveling eighty-two miles per hour in a sixty-five mile per hour zone. Upon approaching defendant's vehicle, the officer observed defendant fumble through his credentials, looking at them several times. The officer also detected a strong odor of alcohol emanating from inside defendant's vehicle.
Based on these observations, the officer called another officer to the scene. The second officer also detected the odor of alcohol emanating from inside defendant's vehicle. Defendant also failed to properly perform field sobriety tests administered by both officers. The officers concluded that defendant was under the influence of alcohol or drugs.
The officers placed defendant under arrest and transported him to police headquarters, where, based on their observations of defendant's flushed face, watery, bloodshot and droopy eyes, and his blood pressure of 170 over 110, they concluded that defendant was under the influence of marijuana. A urine sample taken thereafter tested positive for THC, a marijuana metabolite.
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