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State v. Regis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
REYNOLD REGIS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2009-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 24, 2010

Before Judges Cuff and C.L. Miniman.

Defendant Reynold Regis appeals his conviction on July 6, 2009, of driving under the influence of a controlled dangerous substance (CDS), contrary to N.J.S.A. 39:4-50, and failure to maintain a lane, contrary to N.J.S.A. 39:4-88(b). We affirm in part and reverse in part.

I.

On August 4, 2008, at about 8:06 p.m., defendant was traveling in the right-hand lane of Route 280 in Roseland when he was stopped by a New Jersey State Trooper. Trooper Dennis Cappello was on patrol at that location and observed defendant's vehicle swerve over the fog line onto the shoulder two or three times. The trooper stopped the vehicle and approached the driver's side. He immediately detected an odor of burnt marijuana and asked defendant for his driving credentials. Defendant complied with this request.

Trooper Cappello noticed that defendant's eyes were bloodshot and watery and that he appeared extremely nervous. The trooper observed a female passenger in the vehicle, defendant's girlfriend Camilla Reynolds, and asked defendant why he smelled marijuana. Defendant replied, "I'm just driving with my girlfriend." Considering the answer unresponsive, the trooper asked defendant to exit the vehicle. The trooper again asked defendant about the marijuana, and he replied that possibly his girlfriend smoked marijuana in the car earlier that day. The trooper observed defendant swaying when he walked, using his arms for balance while standing, and fumbling with his hands. The officer directed defendant to the front of his vehicle, and the trooper administered two field sobriety tests:

the walk-and-turn test and the one-legged-stand test. Defendant failed to properly perform both tests, although this was only partially recorded on the trooper's video camera because the test was conducted in front of defendant's car.

Defendant was then placed under arrest for driving while intoxicated (DWI). The trooper admitted that he did not administer the horizontal-gaze nystagmus test to defendant because that was only used for alcohol intoxication. Having arrested defendant, the trooper searched him but found no CDS. The passenger was asked to exit the vehicle, and she was then searched with similar results. A subsequent search of the vehicle's center console revealed a small baggie of marijuana. Defendant and his girlfriend both denied ownership of it and were both arrested.

After administering Miranda*fn1 rights, the trooper transported defendant to the Totowa State Police substation. Defendant then underwent an alcohol breath test, which resulted in a zero reading. He gave a urine sample, which was secured by the trooper and marked as evidence No. 020806. The suspected CDS was also bagged and tagged under No. A020805. Defendant was released to his mother at 10:00 p.m.

At trial, in addition to the testimony of Trooper Cappello, the State called Michael Baklarz, a forensic scientist whose job is to analyze blood and urine for the presence of alcohol and drugs. Baklarz testified that the urine he tested was positive for marijuana metabolites. However, no quantitative analysis of the sample was made.

The State also called Maria Fazio Zanakis, a forensic science expert, who analyzed the vegetation contained in the plastic bag. She could not testify as to how the sample was received in her laboratory, but was familiar with the receipt of samples generally. She testified that the sample she analyzed weighed .53 grams and, based on a microscopic test and a color test, identified the sample as marijuana.

Defendant called his passenger, Camilla Reynolds, as his sole witness. She testified that the marijuana found in the vehicle belonged to her; defendant had no knowledge of it being in the vehicle; she had accepted responsibility for it; and she had pleaded guilty to a possession charge in juvenile court. At the conclusion of the case, the Roseland Municipal Court judge found defendant not guilty of possession of CDS but guilty of driving while intoxicated and failure to maintain a lane. Defendant appealed his conviction and sentence to the Law Division.

The Law Division judge who heard the case "affirmed" the judgment of the municipal court on both offenses and imposed the same penalties imposed by the municipal court. This sentence was stayed for forty-five days to permit defendant to file an appeal. This appeal followed.

II.

Defendant raises the following issues for our consideration:

POINT I - THE LAW DIVISION JUDGE ERRED BY FAILING TO PROPERLY REVIEW THE CASE DE NOVO; THEREFORE, AFFIRMANCE OF THE DECISION OF THE MUNICIPAL COURT JUDGE WARRANTS REVERSAL BY THIS COURT.

POINT II - THE STATE FAILED TO PROVE A VIOLATION OF N.J.S.A. 39:4-50 AS IT FAILED TO SHOW, BEYOND A REASONABLE DOUBT, THAT REGIS WAS UNDER THE INFLUENCE OF DRUGS.

POINT III - THE STATE FAILED TO ESTABLISH A PROPER CHAIN OF EVIDENCE WARRANTING EXCLUSION OF THE EXPERT TESTIMONY AND REVERSAL OF REGIS' CONVICTION.

POINT IV - THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT REGIS VIOLATED N.J.S.A. 39:4-88b.

We find no merit to defendant's first point on appeal. The Law Division judge clearly found the facts de novo from the transcript of the municipal court hearing. He did not read the municipal judge's decision into the record. Rather, he made his own findings of fact, citing the transcript for each fact he found. Many of the facts he found were not mentioned in the municipal court judge's decision. Thereafter, he said:

As to discussion, the State and the appellant agree the appellant is permitted a de novo review of the record from [the] lower court pursuant to [Rule] 3:23-8(a).

De novo consideration requires [the] reviewing judge to determine the case completely anew on the record made below before the trial judge, giving due, although not controlling regard to the opportunity of the judge to judge the credibility of the witnesses. See State versus Cerefice, 335 N.J. Super. 374, at 382 (App. Div. 2000).

The reviewing court must determine, "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Citing State versus Johnson, 42 N.J. 146 at 157 (1964).

The Law Division judge then reviewed the parties' respective positions on the evidence and applicable law, and drew his own conclusions of law. He found that "the State proved beyond a reasonable doubt the appellant operated a motor vehicle under the influence of drugs in violation of N.J.S.A. 39:4-50" and explained how he reached that conclusion, relying on State v. Bealor, 187 N.J. 574 (2006).

As to the failure to maintain a lane, the Law Division judge reviewed the arguments advanced by defendant and the State. He determined that defendant was incorrect in claiming that his driving posed no danger to other vehicles. He examined both parts of N.J.S.A. 39:4-88 and determined that the second prong only applied "when the driver intends to change lanes in the course of travel," citing State v. Woodruff, 403 N.J. Super. 620 (Law Div. 2008). He then independently found the facts relevant to this charge and concluded that the State had proven the first prong beyond a reasonable doubt.

Defendant's claim of error rests upon the language employed by the judge at the end of his decision and in the order he entered thereafter: "For the reasons stated herein, I find as a fact as I've made them here affirmed the findings of fact made by Judge Connell in the Municipal Court. And therefore, the actions of the municipal court are affirmed." The order was to similar effect.

The Law Division should not have cited Johnson, supra, 42 N.J. at 157, for the proposition that the reviewing court searched the record for sufficient credible evidence. The portion of the opinion he quoted is actually found at page 162, where there is a discussion of our scope of review of the Law Division's de novo review. However, we are satisfied that the judge here did not merely search the record for sufficient credible evidence to support the municipal judge's determination. Instead, he conducted a thorough de novo review and found the facts independently of the municipal judge. That is all that is required. State v. Kotsev, 396 N.J. Super. 58, 60-61 (Law Div. 2005), aff'd, 396 N.J. Super. 389 (App. Div.), certif. denied, 193 N.J. 276 (2007).

III.

With respect to defendant's second argument, the question in a DWI narcotics case that is to be determined is whether the proofs adduced . . . are sufficient to establish beyond a reasonable doubt that, at the time of his arrest, defendant suffered from "a substantial deterioration or diminution of the mental faculties or physical capabilities[,]" or was in a drug-induced state that "so affect[ed his] judgment or control . . . as to make it improper for him to drive on the highway[,]" or whether defendant was under the effect of a drug that "so alter[ed] his . . . normal physical coordination and mental faculties as to render [defendant] a danger to himself as well as to other persons on the highway." [Bealor, supra, 187 N.J. at 590 (quoting State v. Tamburro, 68 N.J. 414, 421 (1975)).]

Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal judge. Johnson, supra, 42 N.J. at 161-62. Like the Law Division, we are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. In that case, the Court enunciated the two-court rule as follows:

Although the Law Division did not engage in its own credibility determinations separate and apart from the Municipal Court, it described on the record the evidence and testimony presented before the Municipal Court that persuaded it to "accede" to the Municipal Court's credibility determinations. Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.

Moreover, the rule of deference is more compelling where, as in the present case, two lower courts have entered concurrent judgments on purely factual issues. Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error. [Id. at 474 (citations omitted).]

We find no merit to defendant's claim that the answer to the inquiry in Bealor is negative. Defendant gave an answer to the trooper's first question that was a non sequitur; he was swaying when he walked; he was using his arms for balance when he was standing; his hands were fumbling; and he could not perform the two field sobriety tests. Furthermore, he had been observed veering off the road onto the shoulder on two or three occasions. We find this credible evidence more than sufficient to establish beyond a reasonable doubt that defendant was driving while under the influence of marijuana, a "narcotic, hallucinogenic or habit-producing drug" in violation of N.J.S.A. 39:4-50. Bealor, supra, 187 N.J. at 589.

IV.

Turning to defendant's conviction for failing to maintain his lane of travel, the statute in question provides in pertinent part as follows:

When a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations:

b. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety. [N.J.S.A. 39:4-88(b).]

The issue in this case is whether the two clauses in subsection

(b) are independent of each other and describe two separate offenses or whether they are dependent on each other and describe one offense.

A.

N.J.S.A. 1:1-1 provides general instructions for judicial construction of statutes and laws in New Jersey:

In the construction of laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. Technical words and phrases, and words and phrases having special or accepted meaning in the law, shall be construed in accordance with such technical or special and accepted meaning.

When we are called upon to review a statute, determining the Legislature's intent is our paramount goal, and the language of the statute itself is generally the best indicator of that intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). To determine the Legislature's intent, we begin with the words of the statute and ascribe to them their ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008). We will read these words in context with related provisions so as to give sense to the legislation as a whole. DiProspero, supra, 183 N.J. at 492.

"It is not the function of [a reviewing court] to 'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than expressed by way of the plain language.'" Ibid. (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). We "cannot 'write in an additional qualification that the Legislature pointedly omitted in drafting its own enactment.'" DiProspero, supra, 183 N.J. at 492 (quoting Craster v. Bd. of Comm'rs, 9 N.J. 225, 230 (1952)). Nor may we "'engage in conjecture or surmise which will circumvent the plain meaning of the act.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). Therefore, if the meaning of those words is clear, the analysis is complete, and we need look no further. Mason, supra, 196 N.J. at 68.

Additionally, our Supreme Court has also cautioned that common sense should not be abandoned when a court is required to interpret a statute:

[W]e also have stressed that "where a literal interpretation would create a manifestly absurd result, contrary to public policy, the spirit of the law should control." Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999) (citing Watt v. Mayor of Franklin, 21 N.J. 274, 278 (1956)).

Thus, when a "'literal interpretation of individual statutory terms or provisions'" would lead to results "'inconsistent with the overall purpose of the statute,'" that interpretation should be rejected. Cornblatt v. Barow, 153 N.J. 218, 242 (1998) (quoting Young [v. Schering Corp.,] 141 N.J. [16,] 25 [(1995)]). [Hubbard v. Reed, 168 N.J. 387, 392-93 (2001).]

"We may also resort to extrinsic evidence if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language." DiProspero, supra, 183 N.J. at 493. "However, when the language used by the Legislature is susceptible to multiple interpretations, we may consider other sources to assist us in determining the Legislature's intent." Roberts v. State, Div. of State Police, 191 N.J. 516, 521 (2007).

Penal statutes must be strictly construed in favor of the accused. In criminal cases, interpretation of a statute is restricted by the rule of lenity which requires us to strictly construe penal statutes in favor of a criminal defendant. State v. D.A., 191 N.J. 158, 164 (2007); see also Norman J. Singer, 3 Sutherland Statutory Construction § 59.3, 134 (6th ed. 2001) ("The rule of lenity should only be applied if after reviewing all sources of legislative intent the statute still remains ambiguous."). Those are the legal principles that guide our analysis. [State v. Froland, 193 N.J. 186, 194 (2007).]

Accord State ex rel. M.T.S., 129 N.J. 422, 431 (1992); State v. Solarski, 374 N.J. Super. 176, 181 (App. Div. 2005). "The rule of lenity 'has at its heart the requirement of due process. No one shall be punished for a crime unless both that crime and its punishment are clearly set forth in positive law.'" Froland, supra, 193 N.J. at 201 (quoting In re Suspension of DeMarco, 83 N.J. 25, 36 (1980)).

A statute is considered penal or quasi-criminal when it "provides for either a fine or imprisonment, or both, upon conviction for violation of the statute." State v. Son, 179 N.J. Super. 549, 554 (App. Div. 1981); see also [State v.] Widmaier, 157 N.J. [475,] 493 [(1999)] (noting seven factors used to determine whether a statutory scheme is punitive or remedial). "[P]enal statutes that are open to more than one reasonable construction must be construed strictly against the State." State v. Churchdale Leasing, Inc., 115 N.J. 83, 102 (1989) (holding rules of statutory construction limited cumulative punishments under two ambiguous statutes where it was unclear if violator should be penalized under both provisions).

"Where the primary purpose of a statute is expressly enforceable by fine, imprisonment, or similar punishment the statute is always construed as penal." Norman J. Singer, 3 Sutherland Statutory Construction § 59.1 (2001).

This simply means that words are given their ordinary meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal statute. [Id. at § 59:3.]

We recognize that our task involves more than simply recognizing the penal nature of the statute and repeating the mantra that it is, consequently, to be strictly construed. "[E]ven when dealing with a criminal statute, 'the goal of the interpretive process is to ascertain the intent of the [L]egislature. All rules of construction are subordinate to that obvious proposition." [State v.] Tischio, 107 N.J. [504,] 511 [(1987)] (quoting State v. Grant, 196 N.J. Super. 470, [481] (App. Div. 1984)), [appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed. 2d 855 (1988)].

It is well recognized that "the rule of strict construction does not mean that the manifestations of the Legislature's intention should be disregarded." State v. Edwards, 28 N.J. 292, 298 (1958). "While penal and criminal statutes are to be strictly read to avoid penalties by construction . . . the words of the enactment are to be accorded a rational meaning in harmony with the obvious intent and purpose of the law." State v. Brown, 22 N.J. 405, 415 (1956). We have stated that: penal statutes must be strictly construed and [that] ambiguous language must be construed against the State. However, even a penal statute should not be construed to reach a ridiculous or absurd result. Indeed, the spirit of a statute controls where a literal interpretation [of a statute] would create a manifestly absurd result. If a literal interpretation of a statute would lead to a result that is inconsistent with the overall purpose of the statute, that interpretation should be rejected.

[State v. Jones, 347 N.J. Super. 150, 153 (App. Div.), certif. denied, 172 N.J. 181 (2002) (citations omitted).] [Solarski, supra, 374 N.J. Super. at 180-81.]

B.

The only reported decision considering N.J.S.A. 39:4-88(b) is the Woodruff case cited by the Law Division judge. There, the defendant twice veered over the fog line and onto the shoulder so that half of his truck was off the roadway.

Woodruff, supra, 403 N.J. Super. at 623. The police officer following him activated his lights to effectuate a motor vehicle stop for violation of N.J.S.A. 39:4-88(b). Ibid. The defendant challenged the stop on two grounds, one of which was that his deviation from his lane of travel was not a violation of the statute because his movement was not proved to be unsafe to other drivers and his two deviations from his lane were not sufficient to constitute a violation. Id. at 625.

The court concluded that "the safety element applies only to changing lanes, not maintaining lanes." Ibid. The court explained:

Section 88(b) imposes two requirements. First, a driver must, as nearly as practicable, drive within his single lane, in other words, maintain his lane. Second, a driver may not change lanes until he can do so safely. The first clause of section 88(b) proscribes deviation from a lane. Thus, it covers situations where the driver has no intention to change lanes, or where the driver does not or cannot change lanes. For example, a driver can violate the first clause when deviating from the lane of a single-lane, one-way road, or on a single-lane ramp to or from a highway, or when driving in a three-lane highway, in which two lanes are traveling against the driver. In those cases, no lane-change is possible, but the driver's failure to maintain a lane is proscribed.

The second clause of section 88(b) pertains to movements from a lane. It requires drivers to change lanes safely. For example, a sudden, unexpected lane change may be unsafe on a crowded roadway, and inconsequential on a deserted one. When the Legislature has intended to condition a violation on the driver's impact on other motorists, it has said so. See, e.g., N.J.S.A. 39:4-126 (making it a violation for a driver to change lanes without signaling if it might affect other motorists). On the other hand, like the first clause of section 88(b), the Motor Vehicle Code elsewhere requires accurate driving, as nearly as practicable, without requiring separate proof of a safety impact. See, e.g.,

N.J.S.A. 39:4-82 (requiring driving "as closely as possible to the right-hand edge or curb of the roadway, unless it is impracticable to travel on that side of the roadway"); N.J.S.A. 39:4-123 (driver intending to turn right must approach in the far right lane and make the right turn "as close as practicable to the right hand curb or edge of the roadway"). [Id. at 625-26.]

The court found support for its interpretation from decisions in other states:

New Jersey's provision, like that of most states, is based on the Uniform Vehicle Code. See Unif. Vehicle Code § 11-309(a), reprinted in Traffic Laws Annotated, National Committee on Uniform Traffic Laws and Ordinances, U.S. Dep't of Transp. (1979). Construing a comparable provision, the Illinois Supreme Court held that the statute creates two separate requirements for lane usage: first, the motorist must drive as nearly as practicable within one lane, and second, a motorist may not move from one lane to another until he can do so safely. People v. Smith, 665 N.E.2d 1215, 1218-19 (Ill. 1996). Federal and state courts in Kansas have reached the same conclusion. United States v. Jones, 501 F. Supp. 2d 1284, 1298 (D. Kan. 2007); State v. Marx, 171 P.3d 276, 282-83 (Kan. Ct. App. 2007) (expressly rejecting State v. Ross, [149 P.3d 876 (Kan. Ct. App. 2007)]), [aff'd in part and rev'd in part, 215 P.3d 601 (Kan. 2009)]. [Id. at 626.]

In Smith, the Supreme Court of Illinois construed the Illinois Vehicle Code § 11-709(a). Smith, supra, 665 N.E.2d at 1218. Subsection (a) is identical to subsection (b) of N.J.S.A. 39:4-88. Without discussing any principles of statutory construction, the Court held that "[t]he plain language of the statute establishes two separate requirements for lane usage." Ibid. As a consequence, the defendant violated the statute when he crossed over a lane line "and [was] not driving as nearly as practicable within one lane." Id. at 1219.

We need not consider the Kansas cases of Jones, supra, 501 F. Supp. 2d 1284, Marx, supra, 171 P.2d 279, and Ross, supra, 149 P.3d 876, because after Woodruff, supra, 403 N.J. Super. 620, was decided, the Kansas Supreme Court in Marx, supra, 215 P.3d 601, reviewed the decision of the Court of Appeals. The issue on appeal required the Court to determine the elements of a violation of Kan. Stat. Ann. § 8-1522(a) (2009), that state's nearly identical parallel to N.J.S.A. 39:4-88(b). Marx, supra, 215 P.3d at 606.

The Court observed that its first task was "to resolve the conflict between Ross and Marx as to the conduct proscribed by [Kan. Stat. Ann. §] 8-1522(a)." Id. at 608. It began by examining the statutory language. Id. at 608-09. The Court engaged in a lengthy analysis of Kan. Stat. Ann. § 8-1522, which "was patterned after § 11-309 of the Uniform Vehicle Code," including an examination of case law from ten states with similar statutes. Id. at 609-10 (citations omitted). Based on its review of sister state law, the Court concluded that "no clearly uniform interpretation of this provision has emerged from our sister states that would constrain, or even guide, our interpretation and construction of [Kan. Stat. Ann. §] 8-1522." Id. at 610.

The Court began by "squarely address[ing] the drafters' use of the conjunctive 'and' between the two directives as did the California appellate court in [People v.] Butler, [146 Cal. Rptr. 856, 857 (Cal. App. Dep't Super. Ct. 1978)]." Ibid. The Court noted that Butler interpreted "and" to mean "or." Ibid. Noting the difficulty of such a declaration, the Court observed that it had utilized such a convention in the past where the legislature was simply imprecise in its word choice. Ibid. (citations omitted). It quoted 82 C.J.S. Statutes § 331 for the proposition that "or" and "and" may be construed as interchangeable where failure to do so would render the meaning of the statute ambiguous or result in absurdities.'" Id. at 610-11 (quoting 82 C.J.S. Statutes, § 331). It found construction of Kan. Stat. Ann. § 8-1522 to be one of those situations. Id. at 611. The Court, therefore, engaged in an independent analysis, ultimately concluding as follows:

[W]e interpret [Kan. Stat. Ann. §] 8-1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under [Kan. Stat. Ann. §] 8-1522(a) when either rule of the road is violated. [Id. at 612.]

The California statute construed in Butler was nearly identical to N.J.S.A. 39:4-88(b), and the appellate court interpreted it to place "two affirmative duties . . . upon the operator of a motor vehicle. One of these is to drive as nearly as practicable entirely within one lane. A separate duty is not to move from that lane until the movement can be made with reasonable safety." Butler, supra, 146 Cal. Rptr. at 857 (citing Cal. Veh. Code § 21658(a)); accord United States v. Colin, 314 F.3d 439, 443-44 (9th Cir. 2002) (noting that the California Supreme Court would likely agree with the Butler court's interpretation of Cal. Veh. Code § 21658(a)).

In construing the Kansas statute, the Marx Court did not discuss the penal character of the Kansas statute, nor did it invoke the rule of lenity, as we must in New Jersey in light of the great divide in cases construing the Uniform Vehicle Code § 11-309(a). See Solarski, supra, 374 N.J. Super. at 180-81. Courts in multiple states have concluded that this Uniform Vehicle Code provision constitutes only one offense. See Crooks v. State, 710 So.2d 1041, 1043 (Fla. App. 2 Dist. 1998) (violation only if lane movement made without ascertaining safety); State v. Tague, 676 N.W.2d 197, 203 (Iowa 2004) (same); Rowe v. Maryland, 769 A.2d 879, 884-85 (Md. 2001) (same); State v. McBroom, 39 P.3d 226, 229 (Or. App. 2002) (same); Hernandez v. State, 983 S.W.2d 867, 870-71 (Tex. App. 1998) (same). Some courts construe the statute as prohibiting movement between marked lanes and not over fog lines. State v. Lafferty, 967 P.2d 363, 366 (Mont. 1998); Commonwealth v. Gleason, 785 A.2d 983, 986-87 (Pa. 2001) (repeated crossing of fog line did not constitute violation because it did not create safety hazard).

We recognize that we are permitted to construe "and" in the disjunctive. Pine Belt Chevrolet, Inc. v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993); Howard v Harwood's Rest. Co., 25 N.J. 72, 88 (1957); State v. Leahy, 381 N.J. Super. 106, 111 (App. Div. 2005), certif. denied, 186 N.J. 245 (2006); Cruz v. Trotta, 363 N.J. Super. 353, 358 (App. Div. 2003). The Pine Belt Court observed:

The plain meaning of the phrase "administered and contracted for" is conjunctive. We note that "[t]he word 'and' carries with it natural conjunctive import while the word 'or' carries with it natural disjunctive import." State v. Duva, 192 N.J. Super. 418, 421 (Law Div. 1983). Furthermore, "the legislature is deemed to have intended what it wrote and the Court may not construe a contrary concept." Ibid. We have, however, recognized that "[t]he words 'or' and 'and' are ofttimes used interchangeably, and the determination of whether the word 'and' as used in a statute should be read in the conjunctive or disjunctive depends primarily upon the legislative intent." Howard[, supra,], 24 N.J. [at 88.]

The language surrounding the disputed portion of the statute does not evince any intention to create a disjunctive meaning. [Pine Belt, supra, 132 N.J. at 578-79.]

The defendant in Leahy, supra, 381 N.J. Super. 106, urged that the use of "and" in N.J.S.A. 2C:7-2d (Megan's Law) required proof that he both left his residence without notification to the local police department and that he failed to register with the municipality to which he moved. Id. at 111. He also urged that because no proof had been submitted establishing a failure to register with the new municipality, the State had failed to prove a violation of the statute. Ibid. We recognized that "[t]he words 'or' and 'and' are often used interchangeably in statutes, and the determination as to whether 'and' should be interpreted in the conjunctive or disjunctive primarily depends on legislative intent." Ibid. (citations omitted).

We found that "the Legislature made the judgment that convicted sex offenders represent a risk because of a high rate of recidivism and that knowledge of their identities and whereabouts is necessary for public safety." Ibid. (citing N.J.S.A. 2C:7-1; Doe v. Poritz, 142 N.J. 1 (1995)). Because registration "is at the very heart of Megan's Law," that "[d]efendant's suggested statutory construction would lead to the anomalous result that a registrant would not be in violation of the statute if he told the municipality where he resided of his intention to move but did not register in his new municipality, which would be unaware of his presence." Id. at 111-12. As a result, we concluded that "the word 'and' must be equated to the conjunction 'or' to give the statute its proper meaning and effect." Id. at 112. This is not such a case.

Under New Jersey's rules of construction, we find that N.J.S.A. 39:4-88(b) clearly describes one offense. If the first clause was independent of the second clause, the first clause would outlaw all movement out of the lane except where travel in the lane was not practicable, as where an obstruction exists in the lane. That first phrase standing alone would not permit lane changes from a left to right lane in order to exit a highway or pull into a parking space. It would not permit pulling onto the shoulder of a highway to change drivers. That clearly is not the law in New Jersey, where overtaking and passing other vehicles and parking a vehicle are permitted. See, e.g., N.J.S.A. 39:4-56.5 (vehicles presumed abandoned if they remain along any highway for more than forty-eight hours), -86 (overtaking and passing vehicles left of center line unless the left side is clearly visible and free of oncoming traffic), -135 (stopping, standing or parking vehicle on right-hand side of roadway parallel to roadway). Indeed, if the first clause were construed to be independent of the second clause, and vehicles are only permitted to change lanes when travel in the lane was not practicable, then the second clause would only be triggered where a motorist, faced with some impracticality, changed lanes before ascertaining that the movement could be made with safety. That certainly is not the narrow focus of the statute.

Accordingly, we disapprove Woodruff and conclude that the offense proscribed by N.J.S.A. 39:4-88(b) is failing to maintain a lane of travel by changing lanes without first ascertaining that the lane change can be done safely. Defendant was not guilty of violating N.J.S.A. 39:4-88(b) because there is no evidence that the movement of his vehicle was not made with safety.

Last, after carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that defendant's argument in Point III is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm the determination respecting the chain of custody substantially for the reasons expressed by the Law Division judge in his oral opinion delivered on June 5, 2009.

Affirmed in part and reversed in part.


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