On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 37-10.
The opinion of the court was delivered by: Parrillo, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011
Before Judges Parrillo, Grall and Skillman.
The opinion of the court was delivered by PARRILLO, P.J.A.D.
We are asked to decide whether standard, roadside field sobriety testing requires the police to have probable cause to arrest or to search, or may it be undertaken on the basis of reasonable suspicion alone.
The facts are essentially undisputed. On July 31, 2010, at approximately 3:30 a.m., Seaside Heights Police Officer John Moritz observed defendant operating a motor vehicle with tinted windows and loud exhaust. After following him for about one block, Moritz pulled defendant's vehicle over for the observed equipment violations. Moritz approached defendant and requested his driver's credentials, which defendant then produced. Appearing a bit scared and nervous, defendant asked why he was stopped, and Moritz explained the muffler was excessively noisy and the windows were completely tinted black, preventing the officer from seeing the inside of the vehicle. Detecting a strong odor of alcohol coming from defendant's breath, Moritz inquired whether defendant had been drinking. Defendant admitted to consuming a beer that night at Bamboo, a local bar; however, Moritz sensed the alcohol smelled more like hard liquor and not beer. Based on his observations and defendant's admissions, Moritz requested defendant exit the vehicle to perform field sobriety testing, "to make sure that he was okay to drive."
Thereafter, defendant was arrested and charged with driving while intoxicated, N.J.S.A. 39:4-50; excessive muffler noise, N.J.S.A. 39:3-70; and improper safety glass, N.J.S.A. 39:3-75. Challenging the administration of the field sobriety testing for want of probable cause, defendant filed a motion to suppress, which the municipal court judge denied, reasoning:
[L]ooking at the totality of the circumstances, the strong odor of alcohol from his breath, the admission that he had at least a beer, that it was 3:30 in the morning[,] and that he said he was at the Bamboo Bar . . . all of that certainly rise[s] . . . to constitute a reasonable and articulable suspicion that at least the officer had a duty to go forward to ascertain by the use of the psychophysicals whether or not he formulated the opinion he was or was not under the influence.
Subsequently, defendant entered a conditional guilty plea to the DWI charge and was sentenced to a mandatory seven-month loss of his license, twelve hours in the Intoxicated Driver Resource Center (IDRC), and various fines.
Defendant then appealed to the Law Division which heard the matter de novo and denied the suppression motion. In rendering his decision, the judge concluded that "[b]ased upon the location, the time, the odor, the nervousness and the admission of consumption" of alcohol, the officer had reasonable suspicion that another offense was being committed and that he was justified in broadening the initial inquiry. Defendant was again found guilty of DWI and the municipal court sentence was reimposed.
In challenging the legal standard employed by the courts below, defendant contends that because the command to submit to field sobriety testing constitutes a de facto arrest, the police action may only be sustained upon a showing of probable cause, which is absent here. While we agree that the facts of record do not support a finding of probable cause, they do amount to a reasonable articulable suspicion that defendant was driving ...