On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Municipal Appeal No. 20-A-06-K84.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Messano and LeWinn.
Defendant appeals from the March 11, 2008 order of the Criminal Part finding him guilty, upon de novo review, of driving while intoxicated in violation of N.J.S.A. 39:4-50 (DWI), and imposing the following sentence: a $256 fine, three months' loss of his driver's license, various assessments and costs, and attending twelve to forty-eight hours of programs at the Intoxicated Driver Resource Center.*fn1 We affirm.
We summarize the pertinent facts from the evidence adduced at the October 25, 2006 hearing in the municipal court on defendant's pre-trial motion to suppress. Defendant sought to suppress "any and all evidence from the search and seizure of his motor vehicle... which was based upon no probable cause for the arrest and investigation."
Clinton Police Officer Ollerenshaw was on duty in his marked patrol car on the night of June 24, 2006. At approximately 10:00 p.m., he received an anonymous report "of a car being back behind the Water Authority at... DeMott Park[,]" which he described as an area on the far side of the park marked by "two signs that say Restricted -- Authorized Vehicles Only and went back behind the Water Authority Building." In order to gain access to that area, a vehicle must drive down a one-way driveway. There is no other access to that particular location.
In response to the anonymous call, Ollerenshaw "went through the park and followed it down to the turnaround where the Water Authority building is and [he] found [a] vehicle behind the building." The vehicle was approximately 100 to 150 yards into the area and was located behind the Water Authority building, and thus "hidden from view of anyone except someone already inside the restricted area[.]"
Ollerenshaw approached the vehicle; he observed "the driver [later identified as defendant]... behind the driver's seat. The car was running, the car had it[s] windows up. It was hot and humid. There was no fog on the windows." Ollerenshaw knocked on the window and instructed defendant to lower the window. He then observed that defendant was "sitting in the driver's seat with... [the] seat ratcheted... and... his head would be where the left passenger window would be. Not fully laying down but on an angle." The keys were in the ignition and the air conditioning was on.
When Ollerenshaw knocked on the window, defendant "looked at [him] then looked back again." It "took him a while to roll the window down." As soon as defendant rolled down the window, Ollerenshaw could smell "an odor of an alcoholic beverage." Defendant "was having difficulty... responding to... direction. He was a little slow." Also, the officer observed that his eyes were bloodshot.
When Ollerenshaw asked defendant to get out of the car, he "asked if he could just drive away[,]" and the officer insisted he exit the vehicle. Ollerenshaw observed defendant as he exited the car "fooling with the keys... trying to take them out of the ignition."
Ollerenshaw concluded that defendant "appeared to be under the influence of an alcoholic beverage[,]" based on the following observations: "He was slow. He was having trouble listening, following instructions. I could smell it. His eyes were bloodshot. He... was sagging with his knees, had a hard time standing erect." When the officer asked defendant how much he had had to drink, he responded "a few beer[s]." Defendant also stated that he lived close by.
The officer administered three field sobriety tests; defendant was "slow" on the "finger dexterity test"; he "failed" the "heel raise" and "heel to toe" tests. At that point, the officer placed defendant under arrest.
Defendant testified that his car engine was not running at the time the officer approached him. He stated that he was in the park on that night because his wife had just informed him that she "was leaving [him] the next Monday.... [He] was very, very depressed... completely shocked, unhappy and [he] was in the park." When asked ...