On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 04-17-07.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant, Robert Slizewski, appeals from an order of the Law Division vacating a municipal court order suppressing evidence and from the related conviction for driving while intoxicated (DWI). He raises five arguments in support of his appeal: (1) that the Law Division judge erred in reversing the municipal court's order suppressing evidence; (2) that he was illegally ordered to exit his car without reasonable suspicion; (3) that the police did not have probable cause to arrest him for DWI; (4) that evidence not provided in discovery was improperly admitted at trial; and, (5) that his breathalyzer test results should not have been admitted into evidence because the test was not properly administered. For the reasons that follow, we affirm.
In a memorandum submitted to the Bergen County Prosecutor dated August 26, 2005 (the Memo), Lieutenant Edward M. Weber of the Waldwick Police Department requested and provided justification to set up a DWI checkpoint in Waldwick, New Jersey, beginning Friday October 28, 2005 at 10:00 p.m. and continuing until Saturday October 29, 2005 at 4:00 a.m. (the checkpoint). In the Memo, Weber noted that the Waldwick Police Department had used the same site in the past and he provided a factual basis for the imposition of the checkpoint. The proposed checkpoint would be on Wycoff Avenue, a four lane, bidirectional roadway, utilizing the two center lanes as a DWI staging area and the outer two lanes for through traffic. Any necessary field sobriety tests were to be conducted on the level concrete curbs on either side of the roadway.
The Memo disclosed that police officers would distribute to motorists information on DWI and on seatbelt use. Every third motorist was to be stopped briefly, unless traffic delays of more than five minutes warranted additional spacing. The Memo added that "[a]s traffic volume decreases during the later hours of the evening, we will stop every vehicle that passes through the checkpoint." On September 12, 2005, the checkpoint proposal was approved by the Bergen County Prosecutor's Office.
The officers participating in the checkpoint were told that "greeting officers" located at each end of the checkpoint should stop each vehicle momentarily to distribute pamphlets on either drunk driving or seatbelt use; they were to direct every third vehicle to an internal checking area, unless traffic required a higher or lower frequency of vehicle stops. If an officer had a reasonable suspicion that a motorist was committing a motor vehicle violation, that motorist would be taken out of the sequence and sent to the internal checking area.
On October 28, 2005, the checkpoint was established with signs indicating that the checkpoint was ahead. A taper of traffic cones marked the eastbound and westbound approaches, and police cars and portable lights were set in place. Officer Peter Tiernan kept a log of the cars traveling eastbound through the checkpoint. He testified that Sergeant Anthony Grego, also assigned to the eastbound checkpoint, momentarily stopped each car to explain what was occurring. Although Officer Tiernan failed to mark each car that was stopped in sequence, he noted each car stopped out of sequence with an asterisk.
Defendant's vehicle was stopped out of sequence at 12:04 a.m. on October 29, 2005, when the greeting officers noticed that defendant smelled of alcohol. Defendant was sent to the internal checking area where Officer Michael Tuttle asked him to produce his driving documents. The officer noticed the smell of alcohol on defendant's breath, that defendant's eyes were watery and glassy, and that his clothes were disheveled. Given those observations, Officer Tuttle asked defendant to park and exit his vehicle, and to accompany Officer Troy Seifert approximately fifty feet to a level, cement pad in front of a building. Officer Tuttle observed defendant sway as he walked. He asked defendant if he had any injuries that would not allow him to perform field sobriety tests. Defendant said he did not.
Officer Tuttle first asked defendant to perform a balancing test, which required defendant to stand with one foot in front of the other while the officer provided instructions and demonstrated. Defendant started to perform the test before the officer had finished giving him instructions, and Officer Tuttle told defendant to wait until he was finished. Then Officer Tuttle demonstrated the "walk and turn" test by walking heel-totoe and counting out loud, turning, and taking nine steps back. When defendant tried to perform the test, he stopped walking heel-to-toe after his second step and repeatedly moved his feet to regain balance. After taking the ninth step, defendant turned and acted as though he had finished the test, until Officer Tuttle reminded him that he needed to walk back. Defendant returned without walking heel-to-toe. During this test, defendant remarked that he had friends who were police officers, and he asked Officer Tuttle to be lenient and "give him a break."
Next, Officer Tuttle demonstrated the "one-leg stand" test to defendant. Despite the officer's instructions, defendant looked at the officer instead of his toe during his test. In addition, defendant put his foot on the ground numerous times. Officer Tuttle concluded that defendant was under the influence of alcohol and turned him over to Officer Seifert to be arrested.
Officer Tuttle had been a member of the police force for over twenty-four years, but he neither received formal training in conducting the field sobriety tests he administered, nor did he receive instruction on those tests since they were standardized. The officer did not utilize a point system in scoring the tests, and did not use the standardized instructions given by the National Highway Traffic Safety Administration (NHTSA).
As noted, defendant was arrested for DWI. Officer Seifert transported defendant to the Waldwick police headquarters, and during their journey, the officer detected the odor of alcohol coming from defendant in the back of the police car. Upon arriving at headquarters, defendant was read his Miranda*fn1 rights and the DWI Standard Statement under N.J.S.A. 39:4-50.4a. Defendant agreed to submit to a breathalyzer test. Officer Seifert, a licensed and qualified breathalyzer operator, began the process of administering the test using a Model 900 Breathalyzer, serial number 8801175012. The test yielded readings of .15 percent blood alcohol level from the first breath sample, and .16 percent blood alcohol level from the second.
At approximately 1:17 a.m., on October 29, 2005, Officer Seifert conducted the drinking and driving report question-and-answer form. The defendant stated that he had injured hands and that he was sick, but he did not elaborate on the nature of his sickness. Defendant admitted to having three beers, but could not remember when he had his first or last drink. He was issued a summons for DWI, in violation of N.J.S.A. 39:4-50.
Defendant filed a motion to suppress all evidence seized in the case. The municipal court judge who heard the motion reserved judgment; then on April 27, 2006, the judge rendered an oral decision, granting plaintiff's motion. The judge reasoned that the checkpoint did not pass constitutional muster under the standard set forth in State v. Kirk, 202 N.J. Super. 28 (App. Div. 1985). On May 4, 2006, the judge issued an order memorializing his ruling, and on or about May 11, 2006, the State filed a notice of appeal in the Law Division, Bergen County. On August 23, 2006, oral argument was heard, whereupon the municipal court order of suppression was vacated. The matter was remanded for trial.
On May 8, 2007, the case proceeded to trial in the municipal court. The parties initially stipulated that all testimony and evidence from the motion to suppress hearing would be incorporated in the trial record, and defendant then moved to exclude the admission of an "after-certificate" that had not been previously provided in discovery.*fn2 The State produced the document, and the judge, finding that the late production was not prejudicial, ordered a ten-minute recess to allow defendant and his expert to review the after-certificate before proceeding to trial.
Officer Seifert described in his testimony the procedure he used for administering the breathalyzer test to defendant. When he approached the breathalyzer, it was already turned on, so he opened the front flap and removed the atomizer and the go-no-go gauge. Officer Seifert recorded the serial number and ampule-control lot number for the first test. He verified that the temperature was at fifty degrees Centigrade; he gauged the reference ampule with the go-no-go gauge, verifying that the meniscus line was above the gauge, and gauged the test ampule with the go-no-go to verify that the meniscus was at the top of the gauge. The officer then opened the ampule, verified the volume and placed the right-hand holder of the breathalyzer machine. Next, Officer Seifert took out the bubbler, inserted the glass bubbler into the test ampule and connected the outlet. The officer then turned on the light for the machine, balanced the breathalyzer and set the blood-alcohol pointer on the start line.
Officer Seifert testified that he began the purge phase by turning the control knob to the take position, flushed the machine with the atomizer, and turned the control knob to the analyze position. He waited for the red-empty signal to appear for ninety seconds, then turned the light on for the breathalyzer and balanced the machine. The officer recorded the purge results on the alcohol influence report as .00 percent, placed the blood-alcohol pointer on the start line, and affixed a new mouthpiece on the breath tube and administered the test. On ...