On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Sabatino and Lyons.
After unsuccessfully moving to suppress evidence from a highway stop of his motor vehicle, defendant Robert E. Walker conditionally pled guilty in the Cranford Municipal Court to driving while intoxicated ("DWI"), N.J.S.A. 39:4-50(a)(1). The municipal court imposed appropriate fines and penalties, including a seven-month suspension of defendant's driver's license.
Defendant appealed the municipal judge's denial of his suppression motion, arguing that the police lacked reasonable suspicion to stop his car and also lacked probable cause to require him to exit his vehicle and perform sobriety tests. The Law Division sustained the municipal judge's determination, and so do we.
The facts in the record pertinent to our analysis may be briefly stated. Shortly before 1:20 a.m. on May 20, 2007, the State Police received a report of a Lexus sedan that had been observed driving erratically on the northbound side of the Garden State Parkway near Sayreville. The report was dispatched to Trooper Robert Apgar, who was then on patrol of the Parkway several miles north of Sayreville. About five or ten minutes later, Trooper Apgar saw a black Lexus pass by his location. He noted that the Lexus had an identical or nearly-identical*fn1 license plate number to the one reported by the dispatcher.
Trooper Apgar followed the Lexus for a mile in his patrol car. During that one-mile interval, the trooper noticed that the Lexus swerved three times back and forth between the left lane and the center lane of the Parkway. The trooper also paced the car as going eighty-five miles per hour in a fifty-five mile per hour zone.
The trooper activated his overhead lights and video camera. Upon seeing the lights, the driver of the Lexus pulled over onto the right shoulder. Defendant was behind the wheel of the car, with his wife in the front passenger seat.
The trooper went to the passenger side of the Lexus and asked defendant to produce his credentials. The trooper detected the "smell of a strong alcoholic beverage" emanating from the inside of the vehicle. Although defendant denied that he had been drinking, the trooper perceived that he was slurring his words. The trooper then asked defendant to recite the alphabet and to count from fifty-five to seventy. According to the trooper, defendant's speech during these two procedures continued to be slow and slurred.
Based upon these observations, the trooper instructed defendant to get out of his car. He noticed at that point that defendant's eyes were watery and bloodshot. The trooper then administered two physical field sobriety tests: a walk-and-turn test and a one-legged stand. Defendant failed to complete those tests in a satisfactory manner. Trooper Apgar then placed him under arrest.
Defendant was issued a summons for DWI, as well as separate citations for speeding and failure to maintain his lane of travel. Subsequently, defendant moved in the municipal court to suppress the fruits of the motor vehicle stop, contending that the trooper acted without a proper factual basis. Among other things, defendant argued that the videotape of his encounter with the trooper did not corroborate the trooper's perception that defendant had been driving erratically or that he had slurred his words. Defendant also maintained that the odor of alcohol in the car solely had come from his wife, who had been drinking that night.
After hearing testimony from Trooper Apgar, the only witness at the hearing, and reviewing the videotape, the municipal judge rejected defendant's arguments and denied the suppression motion. The judge found that the trooper had a sufficient basis to stop the vehicle after the observations of swerving and speeding. The judge also noted the evidence of defendant's watery eyes and the smell of alcohol. Recognizing that defendant's alleged slurring was not audible on the tape, the judge was nonetheless satisfied, under the totality of circumstances, that the trooper had probable cause to arrest defendant.
Following a short recess and a conference with his counsel, defendant entered a guilty plea to the DWI charge, conditioned on his right to appeal the suppression ruling. Defendant requested that the speeding and lane-changing offenses merge into the DWI offense, a request which the court approved with the prosecutor's assent. The court then imposed its sentence. The license suspension and ...