On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. ll-007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Hayden.
Defendant Stephanie Bartolotta appeals from a July 1, 2011 Law Division final judgment of conviction, following a municipal court appeal, finding her guilty of driving while intoxicated and other related offenses. For the reasons that follow, we affirm.
We discern the following facts from the evidence presented at the motion to suppress and the subsequent trial. On September 16, 2010, the Matawan police received a report of a late model black Mercedes Benz pulling in and out of driveways on Aberdeen Road in the Borough of Matawan.*fn1 The police were aware that several "home invasions" had recently occurred in the neighborhood. Consequently, Police Officer Bryan Murphy was dispatched to investigate the report.
When he reached Aberdeen Road, Officer Murphy saw a black Mercedes pulling into a driveway. He pulled his patrol car behind the vehicle and exited without engaging his emergency lights. As he approached the Mercedes, he observed defendant "slumped" behind the steering wheel with her arm hanging out of the window. In less than two minutes, Officer Jennifer Paglia arrived as backup and stood behind Officer Murphy. Defendant stated that she was looking for a friend's house when the officer asked why she had pulled into the driveway. Officer Murphy immediately noted a strong smell of alcohol coming from defendant, her speech was slurred and her eyes were droopy. Officer Murphy asked defendant for her motor vehicle documents but she was unable to find them after she fumbled around the interior of the car for several minutes, frequently forgetting what she was trying to find.
Due to defendant's physical condition and her state of confusion, Officer Murphy suspected that she was intoxicated and asked her to step out of the car so he could administer the field sobriety tests. After defendant repeatedly refused to obey the officer's instructions, he informed her she was under arrest for obstruction and again told her to get out of the car. Due to her continued refusal, Officer Murphy had to physically remove her from the vehicle and place her under arrest. Defendant stumbled, swayed, and had difficulty walking when she was outside her car.
On the trip to the police station, defendant asked several times why she was being arrested and continued to emanate an odor of alcohol. After the police car arrived at the station, defendant again had difficulty walking and requested assistance from Officer Paglia. Further, defendant declined to participate in a field sobriety test and refused to take the breathalyzer test because "the police rig the machines." The police charged defendant with driving while intoxicated (DWI), N.J.S.A. 39:4- 50; reckless driving, N.J.S.A. 39:4-96; refusal to submit breath samples, N.J.S.A. 39:4-50.2; and obstruction of the administration of law, N.J.S.A. 2C:29-1(a).
The municipal court judge determined that the testimony of both officers was credible and found defendant guilty of DWI, refusal to take the breathalyzer and obstruction, and not guilty of reckless driving. He merged the obstruction conviction with the DWI, suspended defendant's license for three months on the DWI and seven months on the refusal, to run concurrently, and imposed the appropriate fines and penalties. Defendant appealed her conviction to the Law Division.
Judge Jamie S. Perri conducted a trial de novo in the Law Division and issued a fourteen-page oral decision. Judge Perri deferred to the municipal judge's credibility findings. Judge Perri observed that the record showed that the call came through the County Dispatch, which conveyed 911 calls to the local police, and thus the police reasonably believed that it was a 911 call because of its source. The judge found that Officer Murphy's approach to defendant's car after it pulled into the driveway was consistent with a valid field inquiry regarding the complaint received through the police dispatch. The officer's almost simultaneous observation of defendant slumped in the car with her arm out the window, the odor of alcohol, her slurred speech, and her lack of focus, according to the judge, was sufficient to convert the mere field inquiry into an investigatory stop. Further, the judge determined that defendant's refusal to cooperate with the officer in the discharge of his duties after the officer gave her ample opportunity to cooperate was sufficient for Officer Murphy to charge defendant with obstruction and to suspect intoxication, warranting her removal from the vehicle. Based upon the officers' credible testimony concerning defendant's actions and appearance, the judge found defendant guilty of DWI, refusal and obstruction, and sentenced her to the same sentence given by the municipal court judge. This appeal followed.
On appeal, defendant raises the following contentions for our consideration.
POINT I - THE ARRESTING OFFICER'S SEIZURE OF MS. BARTOLOTTA WAS UNCONSTITUTIONAL ON THE GROUNDS SET FORTH BELOW, AND THEREFORE ALL EVIDENCE ...