On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 09-52.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Chambers and Kestin.
Defendant Ioan Erli appeals from his conviction for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.4a. He contends that the Law Division erred in denying his motion to suppress evidence. We affirm.
At the hearing in municipal court on the motion to suppress, the municipal judge found that on June 13, 2008, a motorist reported to the police that he saw a motorcyclist without a helmet fall from his motorcycle and flee the scene. The motorist indicated that the motorcyclist was possibly intoxicated, and he provided the police with the license plate number of the motorcycle. Based on this report, a police officer went to defendant's home where he spoke to defendant at the door and observed that defendant had pavement burns on his knees, defendant's eyes were bloodshot, his speech was slurred, and he swayed and held onto the door. Defendant confirmed that he had been in an accident. He then went outside because the officer wanted to look at the motorcycle. Outside, the officer detected the odor of alcohol on defendant's breath.
The municipal court found that the officer then went into defendant's garage, without obtaining consent to do so, to continue his investigation. The municipal court concluded, and the State does not dispute, that this entry into the garage constituted an unconstitutional search. Inside the garage, the officer saw that the motorcycle had visible damage, and he also observed a beer can which appeared to be freshly opened. The officer, believing that defendant had been driving while intoxicated, administered field sobriety tests to defendant.
The officer testified that defendant performed the tests poorly. He arrested defendant for DWI. At the police station, defendant refused to take the breath test.
The municipal court granted defendant's motion to suppress on the basis that, because the entry into the garage was illegal, the subsequent field sobriety tests must be suppressed. The State appealed. In its de novo review of the record, R. 3:23-8(a), the Law Division judge reversed in part. The Law Division judge concluded that the search of the garage was illegal, and, therefore, the officer's observations made while in the garage were inadmissible.
The judge found, however, that the officer's observations made before he searched the garage provided a sufficient basis for administration of the field sobriety tests; and he concluded that those observations combined with information obtained from the motorist and defendant's poor performance on the field sobriety tests provided probable cause to arrest defendant.
The case went back to municipal court where defendant was tried and found guilty of both offenses. This was defendant's fourth DWI conviction. On the refusal to submit to a breath test charge, defendant was sentenced to twelve hours in the Intoxicated Driver Resource Center, had his driving privileges and all registration certificates and plates suspended for ten years, and was fined $1,008 and other penalties. On the DWI charge, the municipal court sentenced defendant to 180 days in jail, suspended his driver's license for ten years, suspended all motor vehicle registrations in his name for ten years, fined defendant $1,008, and imposed the requisite monetary assessments and penalties. This sentence was consecutive to the sentence on the refusal charge. Defendant appealed to the Law Division, which, in its de novo review, found defendant guilty of both charges and imposed the same sentence as the municipal court.
On appeal to this court, defendant raises the following points:
THE RECORD BELOW DOES NOT CONTAIN SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE LAW DIVISION'S FINDING THAT THE OFFICER'S ADMINISTRATION OF THE FIELD SOBRIETY TESTS AND THE DEFENDANT'S REFUSAL WERE SUFFICIENTLY INDEPENDENT OF AND ATTENUATED FROM ANY OBSERVATIONS MADE BY THE OFFICER DURING THE UNLAWFUL SEARCH.
1. The officer administered the field sobriety tests minutes after exiting the garage during an otherwise ...