May 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES R. COOPER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 53-09-P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 4, 2011
Before Judges A.A. Rodriguez and LeWinn.
James R. Cooper was convicted in the Bedminster Municipal Court, and again in the Law Division, of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97. On the DWI conviction, the Law Division judge issued a written decision on October 18, 2010, and imposed the following sentence: $306 fine, $50 VCCB, $200 DWI surcharge, $75 SNSF, a seven-month suspension of driver's license, and twelve hours participation in an Intoxicated Drivers Resource Center. The driver's license suspension was stayed pending appeal.*fn1 We affirm.
The State's theory was that defendant was driving under the combined influence of alcohol and a controlled dangerous substance (CDS). Defendant moved in the municipal court to suppress evidence. This motion was denied.
Defendant also moved in the municipal court, pursuant to Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), to preclude the State from introducing the laboratory certificate as evidence in lieu of the testimony from a chemist to prove the quantity, composition and quality of any CDS detected in defendant's bloodstream after the arrest. The municipal judge denied this motion as well.
The facts are largely undisputed. Bedminister Township Police Officer Thomas Valente testified that around 7:30 p.m., on September 11, 2009, he was traveling northbound on Route 206 when he saw defendant's vehicle approach from the right and "break the plain of the intersection" as it came to a stop. The vehicle, a 1995 Ford, had approached a traffic signal and stopped quickly. Its front end protruded into the Route 206/Lamington Road intersection. Officer Valente pulled in behind the vehicle and defendant backed it out of the intersection. When the light turned green, defendant continued across Route 206. Valente activated his overhead lights and stopped the vehicle.
Valente asked defendant for his driver's license, registration and insurance card. These were in order, but Valente saw that defendant's hands were slow and fumbling while retrieving the items from the glove box. Valente asked defendant to perform sobriety tests. Defendant was able to perform the alphabet and numbers test successfully. However, he had some difficulty completing the finger dexterity test and failed the walk and turn test. Valente noticed that defendant spoke with slurred speech and had watery and bloodshot eyes with constricted pupils.
Bedminster Police Sergeant Kyle Pirog testified that he assisted Valente at the scene. At Valente's request, he performed a horizontal gaze nystagmus*fn2 (HGN) test. He also observed that defendant's breath smelled of alcohol; his eyes were bloodshot and watery; his eyelids droopy; and pupils constricted. He also concluded that defendant was under the influence of alcohol.
Bedminster Township Police Officer John A. Dapkins, Jr., testified as a Drug Recognition Expert. He had conducted an eye examination looking for horizontal, vertical and resting nystagmus. Dapkins observed only horizontal nystagmus. He also noted the following:
The subject's pupil size is actually in a normal range. Which again is consistent with what you will find with a [central nervous system] CNS depressant category. That's another check-off for that category.
Dapkins opined that based upon his assessment, defendant was under the influence of a CNS depressant as well as alcohol. On cross-examination, Officer Dapkins noted that he was "110% positive" that defendant was not under the influence of a narcotic analgesic because that would not affect HGN test.
Significantly, Dapkins made the following observations:
I'm actually looking for his pupils to be constricted, and the -- party to be very lethargic not being able to keep his eyes open. Which is not the case here. Those are major indicators. The gentleman was not lethargic. His pupils were in the normal range. And he was able to communicate with me, and he was not sleepy or drowsy.
Dapkins testified that defendant told him that he had had two beers, a shot, and two Lorazepam, for which he had a prescription. Defendant said that he had his last drink at 6:00 p.m. (approximately ninety minutes before the stop). Dapkins testified that defendant's prior broken leg and excess weight may affect his ability to perform certain psychophysical tests including the one-legged stand.
The State introduced a stipulated Alcotest reading of 0.05 percent, as well as defendant's admission that he had consumed two beers, a shot and two Lorazepam pills before driving. Over defendant's objection, the State submitted a laboratory certificate of an analysis of defendant's blood sample obtained after the arrest. It was undisputed that defendant's blood alcohol content (BAC was below the per se threshold set by N.J.S.A. 39:4-50. The State rested and defendant did not present any witnesses.
On appeal, defendant contends:
THE WARRANTLESS STOP OF DEFENDANT'S VEHICLE WAS NOT JUSTIFIED BY OBSERVATION OF A MOTOR VEHICLE VIOLATION, OR ANY OTHER RECOGNIZED EXCEPTION TO THE SEARCH WARRANT REQUIREMENT AND IS THEREFORE UNCONSTITUTIONAL THUS MANDATING SUPPRESSION OF ALL EVIDENCE We disagree.
Officers may stop a vehicle upon witnessing a motor vehicle violation. State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994). In addition, a police officer may lawfully stop a motor vehicle when the officer possesses an articulable and reasonable suspicion that the vehicle, or one of its occupants, is in violation of a motor vehicle law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); see also State v. Garland, 270 N.J. Super. 31, 42-43 (App. Div.), certif. denied, 136 N.J. 296 (1994). Furthermore, a lawful stop may occur when no motor vehicle violation occurred, but where the actions of the driver were dangerous. State v. Griffin, 84 N.J. Super. 508, 516-17 (App. Div. 1964).
The Law Division judge found that:
Officer Valente had reasonable articulable suspicion to stop the [defendant] when Officer Valente observed the [defendant] unsafely stopped his vehicle at the red light at the busy intersection of 20 and Lamington Road so that the [defendant's] vehicle protruded into the intersection. It was reasonable for Officer Valente to infer from the [defendant's] failure to stop his vehicle in a safe manner that the [defendant] was impaired.
The judge also found that there was probable cause, or a well-grounded suspicion that defendant was committing the offense of DWI. Relying on State v. Burnett, 42 N.J. 377, 386-388 (1964), the judge found sufficient evidence to warrant the arrest of defendant because Valente and Pirog smelled of alcohol on defendant's breath and saw that defendant's eyes were bloodshot and watery. In addition, defendant failed the finger dexterity and the walk and turn test. Defendant also admitted to Valente that he had two beers, a shot and two Lorazepams.
Defendant also contends:
THE SEIZURE OF THE DEFENDANT SUBSEQUENT TO THE MOTOR VEHICLE STOP WAS NOT SUFFICIENTLY LIMITED IN SCOPE AND DURATION TO SATISFY THE 4TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND/OR ARTICLE I PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION We are not persuaded.
The Law Division judge found that Valente had adequate probable cause to arrest defendant. The judge based his finding on the proofs presented at trial including Valente and Pirog's observations that defendant smelled of alcohol that his eyes were bloodshot and watery; defendant's failing two field sobriety tests; and defendant's admission that he consumed alcohol and Lorazepam prior to driving.
A police officer may ask a defendant for credentials including license, registration and proof of insurance, once a vehicle is lawfully stopped. State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000) (citing United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993)). However, the reasonableness of a detention during a traffic stop is not limited to investigating the circumstances of the traffic stop. State v. Dickey, 152 N.J. 468, 479-80 (1998). "If, during the course of the stop, or as a result of the reasonable inquiries initiated by the officer, the circumstances 'give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (citing United States v. Johnson, 58 F.3d 356, 357-58 (8th Cir.), cert. denied, 516 U.S. 936, 116 S. Ct. 348, 133 L. Ed. 2d 245 (1995)) (alteration in original). Once a police officer has reasonable grounds to believe that a driver is operating a motor vehicle under the influence, the officer may arrest the driver. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991).
Here, Valente asked defendant for his license, registration and proof of insurance after Valente lawfully stopped defendant's vehicle. Valente developed a suspicion that defendant was intoxicated during the course of this interaction. Valente was therefore permitted to further investigate whether defendant was intoxicated. He was also permitted to arrest defendant once he had developed reasonable grounds to believe that defendant was operating his vehicle while intoxicated.
Defendant also contends:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL AND/OR CDS THUS MANDATING REVERSAL OF DEFENDANT'S CONVICTION AND THE ENTRY OF A NOT GUILTY FINDING [DE NOVO]
It is well-settled that the Law Division decides an appeal from a municipal court de novo. State v. Johnson, 42 N.J. 146, 157 (1964); see also R. 3:23-8(a). Nevertheless, the Law Division gives "due regard to the municipal judge's opportunity to view the witnesses." State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003) (citing Johnson, supra, 42 N.J. at 157). Because the Law Division judge is not in a position to judge the credibility of witnesses, the Law Division judge should defer to the credibility findings of the municipal court judge. State v. Locurto, 157 N.J. 463, 472-74 (1999).
This court's scope of review is similarly limited. "[F]indings of fact made by a trial judge 'are considered binding on appeal when supported by adequate, substantial and credible evidence' . . . ." In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, (1974)). Appellate courts also give "due regard" to the ability of the fact finder to judge credibility. Id. at 656 (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
In State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995), we held that a defendant can be found guilty of driving while intoxicated, independent of a breathalyzer result, based on an officer's observations. The court in Slinger found that a "[d]efendant's erratic driving, his physical appearance, demeanor, and speech, as well as the smell of alcohol on his breath [are] sufficient reliable indicia to allow [an] officer to come to [the] conclusion" that a defendant was intoxicated. Ibid.
Here, based on the proofs presented by the State, both testimonial and documentary, there was ample evidence to support the Law Division judge's conclusion that defendant was driving under the influence of alcohol, despite the fact that the BAC was below the per se level. We again note that defendant admitted that he had consumed two beers with a shot and two Lorazepams prior to driving.
Defendant also contends:
THE ADMISSION OF THE LABORATORY CERTIFICATE WAS IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE 6TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION AND CONSTITUTES AN ABUSE OF JUDICIAL DISCRETION We are not persuaded.
Defendant relies on Melendez-Diaz, contending that the State failed to meet its burden of proof because the municipal judge allowed the admission of a laboratory certificate contrary to the federal and New Jersey constitutional rights of confrontation. In Melendez-Diaz, the United States Supreme Court held that:
The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him." (emphasis added) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction--that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses "against him," the Compulsory Process Clause guarantees a defendant the right to call witnesses "in his favor."
. . . In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial. . . . The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. [Melendez-Diaz, supra, __ U.S. at. __, 129
S. Ct. at 2533-2534, 2541, 174 L. Ed. 2d at 323, 331 (citations omitted).]
N.J.S.A. 2C:35-19(c) is such a notice-and-demand statute. It provides in part:
Whenever a party intends to proffer in a criminal or quasi-criminal proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. [Ibid.]
The statute further provides in pertinent part that the "failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause." Ibid.
Defendant concedes that he did not observe the time limit set by N.J.S.A. 2C:35-19(c). He argues that Melendez-Diaz rendered the statute unconstitutional. To the contrary, we agree with the Law division Judge's conclusion that the Melendez-Diaz decision implicitly ratifies our notice-and-demand statute.
Affirmed. Defendant must arrange with the Criminal Case Manager's Office in Somerset County no later than May 25, 2011, to surrender his driver's license.