On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 40-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Waugh.
Following a trial de novo in the Law Division, defendant Thomas D. Williamson appeals from an October 12, 2010 order that found him not guilty of improper passing, N.J.S.A. 39:4-85, but guilty of careless driving, N.J.S.A. 39:4-97. For the reasons that follow, we reverse.
The facts of this case are not in dispute. On the morning of February 11, 2010, defendant was driving in Spotswood, New Jersey. Although the weather was clear, the road remained "covered with snow and ice" from a storm the previous day.
Defendant approached a slow-moving vehicle in a passing zone, signaled, and passed it on the left.
The maneuver was observed by Officer Michael Gardini of the Spotswood Police Department. Gardini "activated [his] overhead lights" and pulled defendant over. Defendant was issued two summonses: one for improper passing, and another for having an obstructed window.*fn1
During defendant's trial in the Spotswood Municipal Court on March 30, 2010, Gardini acknowledged that he had observed defendant's vehicle pass another vehicle in a forty-mile-per- hour passing zone. He further stated that defendant "could have been" traveling "about 20 miles per hour." Nevertheless, Gardini maintained that "[t]he road conditions were unsafe to pass." On cross-examination, Gardini admitted that he had not measured the speed of either car and did not observe any "lack of control" in defendant's driving, but he issued the ticket because the pass was not "a safe maneuver."
After the State rested, defendant testified as follows:
There was a car on Main Street that I came up to. It was being driven . . . at about eight to ten miles an hour. There was snow and ice on the road. I . . . signaled to turn and pass because there were no cars at all coming [in] the other direction. The speed limit is 40 miles an hour and it is clearly marked as a passing zone because I go on that road twice a day every day, [and I am] very familiar with that road.
I had a long approach. I pulled out gently in front of the car that was going at about eight, ten miles an hour, passed the car, pulled in. The car had absolutely no fish-tail. There was nothing. It was already past sunrise. There was ice . . . on the road, but there was also water on the road. Passed the car, pulled in, did not exceed the speed limit of about 20 miles an hour. When I pulled in in front of the other car, [I] had total control of the car the entire time.
Following closing arguments, the municipal judge rendered an oral decision. He found defendant guilty of improper passing and provided the following explanation:
I do detect, Mr. Williamson, that on your behalf you seem to have this idea that because the car in front of you was going slowly and other vehicles on the road were going slowly that that gives you the right to pass that vehicle. You're forgetting the fact that the statute does require that you do so with safety. And the fact that your vehicle wasn't fish-tailing ...