On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 27-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 24, 2010
Before Judges Axelrad and Espinosa.
Defendant Walter Heublein appeals from his conviction of refusal to submit a breath sample, N.J.S.A. 39:4-50.4a, after a trial de novo in the Law Division, see R. 3:23-8(a). Following denial of his motion to suppress challenging the motor vehicle stop, defendant entered a conditional guilty plea to the refusal offense in the Jackson Township Municipal Court.*fn1 The refusal was treated as a second offense pursuant to the N.J.S.A. 39:4-50(a)(3) "step-down" provision because more than ten years had passed between the last DWI and this 2007 refusal offense.*fn2
Accordingly, he was sentenced to a two-year suspension of his driver's license and monetary fines and surcharges were assessed. Defendant was also ordered to attend a forty-eight hour Intoxicated Driver Resource Center (IDRC) program. The sentence was stayed pending appeal to the Law Division.
On de novo review, the Law Division denied defendant's suppression motion and again convicted defendant of refusal to submit to a breath test.*fn3 Defendant was sentenced just as he had been in the municipal court, except upon the request of the State, the court vacated the improperly imposed Safe Neighborhood Services Fund (SNSF) and Violent Crimes Compensation Board (VCCB) penalties. See State v. Tekel, 281 N.J. Super. 502, 510-ll (App. Div. l995) (VCCB and SNSF penalties do not apply to refusal convictions). The court also vacated the stay.
On appeal, defendant presents the following arguments:
POINT I THE WARRANTLESS STOP WAS A SEIZURE WITHIN THE MEANING OF THE FOURTH AMENDMENT OF THE FEDERAL CONSTITUTION.
POINT II THE WARRANTLESS STOP WITH THE PATROL CAR PULLED UP VERY CLOSE WITH THE SPOTLIGHT ON THE DEFENDANT WAS NOT A FIELD INQUIRY WHERE UNDER ANY REASONABLE OBJECTIVE STANDARD THE DEFENDANT WOULD HAVE REASONABLY BELIEVED HE WAS FREE TO LEAVE. THEREFORE, THE POLICE CONDUCTED A DETENTION WITHOUT ANY CONSTITUTIONALLY PERMISSIBLE BASIS.
POINT III THE POLICE CANNOT STOP CARS WITHOUT PROBABLE CAUSE.
Based on our review of the record and applicable law, we are not persuaded by defendant's arguments and affirm.
The following testimony and evidence was presented at the suppression hearing. On September 3, 2007, at about 9:30 p.m., Jackson Township Police Officer Michael Kelly had been traveling in the opposite direction when he observed a State Police car following defendant's car. Believing the trooper was going to effect a motor vehicle stop, he made a U-turn, anticipating serving as back-up, but, apparently, the trooper had not stopped the car and had proceeded down the road. Officer Kelly observed defendant's car pull into, circle around and stop in the parking lot of a closed bar.
The officer testified he pulled into the lot for a variety of reasons: the vehicle had been traveling slowly through the dark parking lot and circling around it, he was concerned the driver was lost or needed help, there had been several burglaries in the area, and he decided to check the establishment and the driver's welfare as part of his caretaking duties. The officer pulled up to the open window of defendant's stopped car and engaged him in ...