On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5871.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Alvarez.
Defendant Denise M. Darling appeals from convictions for driving while intoxicated, N.J.S.A. 39:4-50, and driving while intoxicated with minors in the vehicle, N.J.S.A. 39:4-50.15(b). As a result, defendant's driving privileges were suspended for an aggregate two-year term, and a two-year suspension of the right to register a motor vehicle was imposed as well. Defendant was required to perform thirty days of community service, attend forty-eight hours at the Intoxicated Driver's Resource Center (IDRC) and pay appropriate fines, assessments, and penalties.
Defendant's claims on appeal are, first, that police lacked probable cause to arrest her, and second, that the State failed to prove operation beyond a reasonable doubt. For the reasons that follow, we reject defendant's contentions of error and affirm.
Defendant was tried on March 27, 2008, in the Mountainside Municipal Court. She thereafter appealed her convictions to the Superior Court, Law Division, where the matter was tried de novo on the record. R. 7:13-1; R. 3:23-2; State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). Defendant was again convicted on February 17, 2009, and the same sentence was imposed.
At the municipal court trial, Arlene Platt, the manager of the Berkeley Heights Community Pool, testified that on August 1, 2007, she was standing outside her office when she noticed defendant and her three children, ages "ten, seven, and probably three" years old. Defendant seemed "disoriented" and swayed "a bit" as she fumbled through her bag to locate her children's membership badges. Platt asked defendant if she was "okay," to which she responded that "[l]ife is hard." As defendant walked within a foot of Platt, Platt smelled alcohol on her breath. Later on, when she saw defendant diving towards an adjoining diving board rather than away from it, she asked lifeguards to close that area of the pool and called police, who responded immediately.
Patrolman Ron DeSimoni of the Berkeley Heights Police Department also testified. He said he responded to a call about a patron at the pool behaving in an erratic manner, who was possibly intoxicated, and that after his arrival he was directed to defendant. When DeSimoni first spoke to her, she stared at him "blankly," ignoring him "somewhat." DeSimoni noted that defendant smelled strongly of alcohol, and had bloodshot and watery eyes. When he asked her if she had consumed alcoholic beverages at the pool, she "was quiet for a while" and then responded that she had not had anything to drink at all that day. When DeSimoni asked defendant how she and the children came to the pool, she was initially silent but eventually told him that she had driven there.
Field sobriety tests were conducted and defendant's performance was generally unremarkable. Nonetheless, DeSimoni was certain that defendant was intoxicated. She was arrested and taken to the police station, where an Alcotest was administered that registered defendant's blood alcohol content (BAC) as.16. After the administration of Miranda*fn1 warnings and the completion of the Alcotest, defendant told DeSimoni that she had "a couple [of] glasses of wine prior to arriving at the pool."
Defendant testified in her own behalf. She said that when she and her children arrived, she parked next to a dumpster located in the parking lot where she "consumed a pretty large size[d] glass of wine before entering the pool," meaning she drank the entire contents of a half-bottle of wine. Defendant claimed she drank the wine while standing towards the rear of her Land Rover as her children were watching a movie inside the car. When she finished, she threw the empty wine bottle in the dumpster and left the plastic cup, which was nearly empty, in her car. Defendant explained that she denied having consumed alcoholic beverages while at the pool to the officers because it was violation of pool rules and she feared that she would be charged with an open-container offense. She insisted that her conduct while on the diving board at the pool, and at the pool generally that day, was nothing out of the ordinary and that she was a very experienced and knowledgeable swimmer who would never engage in dangerous maneuvers in the water. Defendant claimed Platt's observations were fueled by Platt's dislike of her and were simply inaccurate.
The municipal court judge did not find defendant to be a credible witness. The Law Division judge, obliged to give due deference to that initial credibility assessment, agreed. See State v. Kashi, 180 N.J. 45, 48 (2004) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). As he described it, defendant's trial testimony was "unbelievable."
The question we consider on appeal is whether sufficient credible evidence was present in the record for us to uphold the findings of the Law Division judge. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). We also defer to the trial court's credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999); Cerefice, supra, 335 N.J. Super. at 383.
We do not agree with defendant's first contention on appeal that the officers lacked probable cause to arrest her for the offenses with which she was charged. The probable cause standard has been defined repeatedly over the years as meaning "'a well-grounded suspicion that a crime has been or is being committed.'" State v. Pineiro, 181 N.J. 13, 21 (2004) (citing State v. Moore, 181 N.J. 40, 45-46 (2004)). It arises when "'the facts and circumstances within... [an officer's] knowledge... [are] sufficient... to warrant a'" reasonable person's belief that an offense has been committed. Ibid. (quoting Moore, supra, 181 N.J. at 45-46) (internal quotations omitted). In determining whether probable cause exists, we attempt to determine whether grounds justifying a warrantless arrest arise from the "totality of ...