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State of New Jersey v. Mark Wysocki

June 3, 2011


On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 10-58.

Per curiam.


Argued March 15, 2011

Before Judges Wefing, Baxter and Koblitz.

Defendant Mark Wysocki was charged with refusal to submit to a breath test, N.J.S.A. 39:4-50.2, and driving while intoxicated, N.J.S.A. 39:4-50. After the municipal court judge denied his motion to suppress, defendant entered a conditional plea of guilty to the refusal charge. The municipal court judge then ordered that defendant's driver's license be suspended for seven months, that he participate for forty-eight hours at an Intoxicated Driver Resource Center and pay appropriate fines and costs. He stayed defendant's sentence to permit him to appeal to the Law Division. The Law Division judge also denied defendant's motion to suppress and imposed the same sentence as had the municipal court judge; in addition, as had the municipal court judge, he stayed defendant's sentence pending his appeal to this court. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and dissolve the stay of sentence previously granted.

Shortly after midnight on May 31, 2008, defendant was stopped at a checkpoint at the intersection of Rivervale Road and Prospect Avenue in River Vale. Sergeant Sean Scheidle of the River Vale police asked defendant for his driver's license, registration and proof of insurance. Defendant fumbled assembling the requested documents. Sergeant Scheidle later testified that he could detect the odor of alcohol from defendant and that defendant's eyes were bloodshot and watery. After making those observations, he directed defendant to pull forward to the second area of the checkpoint for further investigation. Sergeant Scheidle said that defendant depressed the accelerator to move forward, evidently forgetting that he had placed the vehicle in park as he searched for his documents. As a consequence, his engine revved. Defendant then shifted into drive, and the car jerked forward.

At the second area, defendant met Officer Christopher Bulger of the River Vale police, who again asked to see defendant's driver's license, registration and proof of insurance. Officer Bulger also noticed that defendant had the odor of alcohol on his breath, bloodshot eyes and slurred speech. Officer Bulger wanted to perform some field sobriety tests, and he asked defendant to step out of his car. The area was flat, dry and well lit; and defendant gave no indication of any physical limitations that would affect his ability to complete these tests. Officer Bulger asked defendant to perform in turn the "walk and turn," the "one leg stand" and the "Romberg balance" tests. Officer Bulger said that defendant failed each of these tests, had difficulty maintaining his balance and swayed from side to side. After observing these difficulties, Officer Bulger told defendant he was under arrest, placed him in handcuffs, and advised him of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Officer Bulger then read to defendant in its entirety the New Jersey Motor Vehicle Commission Standard Statement. At the end of paragraph 11 of this document, Officer Bulger asked defendant to submit samples of his breath, and defendant declined. Officer Bulger then read to defendant the last paragraph of the document and again asked him if he would agree to provide samples of his breath, and defendant again declined. Officer Bulger then gave defendant two tickets, one for driving while intoxicated, the other for refusal to provide a breath sample.

Shortly thereafter, two other River Vale police officers drove defendant to police headquarters. When he arrived at police headquarters, defendant indicated he wanted to take the breath test. He was informed that in light of his refusal at the scene, the test would not be performed.

Defendant contended that the road block at which he was stopped was unconstitutional, and he filed a motion in municipal court to suppress evidence of the motor vehicle stop, and of his detention and arrest. In response to defendant's motion, the prosecution presented three witnesses -- Sergeant Robert Ryan of the River Vale police, Officer Bulger and Sergeant Scheidle.

Sergeant Ryan was the officer who originated and supervised the checkpoint. He had received specialized training in the policies and procedures for setting up and operating a motor vehicle checkpoint. In early May 2008, he submitted a written proposal to the Bergen County Prosecutor, seeking approval to conduct a motor vehicle checkpoint from 11:00 p.m., May 30, 2008, until 3:00 a.m., May 31, 2008, at the intersection of Rivervale Road and Prospect Avenue to check for individuals driving while intoxicated. In this proposal, he recited the municipality's historical experience with such checkpoints; it had conducted twelve checkpoints, which resulted in fifteen arrests for driving while intoxicated, fourteen arrests for narcotics violations, seven arrests for other criminal offenses and the issuance of eighty-six motor vehicle summonses. He noted that a previous checkpoint conducted at this site in 2003 yielded two arrests for driving while intoxicated, three arrests for narcotics violations, two arrests for possession of alcohol by underage persons and four motor vehicle summonses.

He also set forth in the application pertinent figures from the records of the River Vale Police Department: in the preceding year, there had been twenty-nine arrests for driving while intoxicated, seventy arrests for narcotics offenses, and four motor vehicle collisions that involved driving while intoxicated. Sergeant Ryan also pointed out the geographical suitability of the proposed site. Rivervale Road is a north/south roadway that connects towns in northern Bergen County to New York State, where bars remain open for hours beyond New Jersey's closing time. He also noted the significantly greater number of taverns available just across the state line at which drinkers could continue to imbibe during these extended hours. He stated that his experience led him to conclude that "this checkpoint location is a well-traveled corridor likely to interdict these offenders." He set forth specific details as to how the checkpoint would be set up and operated and concluded that he would supervise it in accordance with the guidelines the prosecutor's office had promulgated. After reviewing the application, the Prosecutor granted his approval.

In his testimony, Sergeant Ryan explained how the checkpoint was set up and staffed.

We set up light towers, supplemental lighting with portable light towers to illuminate the intersection. We set up traffic cones and electric flares in the roadway to draw the attention of the motorist to the checkpoint. And also, in advance of the checkpoint on River Vale Road northbound, River Vale Road southbound and Prospect Avenue eastbound we set up variable message boards announcing the checkpoint ahead. And [t]he variable message boards, they are worded "DWI checkpoint ...

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