STATE OF NEW JERSEY v. MICHAEL P. RIZZO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1941-05T51941-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL P. RIZZO,

Defendant-Respondent.

_______________________________________________________________

 

Submitted March 28, 2006 - Decided April 18, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, BMA-003-11-05.

John L. Molinelli, Bergen County Prosecutor,

attorney for appellant (Annmarie Cozzi, Assistant

Prosecutor, of counsel and on the brief).

Brian J. Neary, attorney for respondent

(Mr. Neary, of counsel; F. Jon Iannaccone, of

counsel and on the brief).

PER CURIAM

In this driving while intoxicated case, N.J.S.A. 39:4-50, we granted the State leave to appeal from a Law Division order suppressing the results of a breathalyzer test. The question to be resolved is whether the police officer had probable cause to arrest defendant and bring him to headquarters for a breathalyzer test. We reverse the order and remand for trial because we are satisfied that the arrest was valid.

At 1:30 a.m., on Sunday May 30, 2004, Officer Terrence Lawler, a ten-year veteran of the Allendale Police Department, who was on duty and in his patrol car, observed two vehicles heading northbound on West Crescent Avenue. Defendant's car crossed over the double yellow lines, drifting back and forth three times during a span of one mile. Lawler pulled the vehicle over and turned on his videotape recorder. He walked up to defendant's car and asked defendant for his driving credentials. Lawler testified that he smelled a strong odor of alcohol coming from the car and noticed that defendant's eyes were watery and that his speech was slightly slurred. Lawler asked defendant if he knew why he had been stopped, and the reply was no. Lawler then told defendant that he had stopped him because he had been swerving across the double yellow line. The defendant said that he might have swerved because of the car following him, and he admitted, in response to a question, that he "had a couple of beers." Lawler called for backup, and when a sergeant arrived, he told him

what I observed based on his driving and the odor of alcoholic beverage I was able to smell, and watery eyes, and the slurred speech, and the defendant's admission that he had been drinking, I wished to make sure that it was safe for him to continue driving and he wasn't a danger to himself or others.

Defendant agreed to perform the five field sobriety tests requested by Lawler. During the first test defendant was supposed to stand with one leg raised six inches off the ground, keep his hands at his sides, and count from 1-1,000 to 30-1,000. During the test defendant counted very quickly, and at 21-1,000 he tipped slightly. Lawler responded by beginning to reach to stop him from falling. Without assistance, defendant righted himself, and continued counting until 23-1,000, when he put his foot down, swayed slightly, and then picked it back up and continued to 30-1,000. Lawler testified that the swaying and dropping of the foot were clues suggesting intoxication. On the walk-and-turn test, defendant took nine steps, walking heel-to-toe, as directed. He then turned, though not in the manner indicated by Lawler, and walked back nine steps. He did not bring his heel to his toe on several occasions, including all steps after the turn. When the officer asked for an explanation, defendant said that he was concerned about tripping over his pant leg. Lawler testified that the improper turn and the failure to walk heel-to-toe were also clues suggesting intoxication. The third test required defendant to count backwards from 90 to 78. He counted down to 70 and Lawler thought that while he did it his "speech seemed slightly slurred." The last test admitted into evidence required defendant to close his eyes, tilt his head back and estimate 30 seconds. During that test, Lawler said defendant swayed slightly. Based on the entire event, Lawler concluded that defendant was intoxicated and arrested him for, among other things, submission to a breathalyzer test at headquarters.

The municipal court judge found that Lawler was a credible witness but nonetheless suppressed the evidence based on his viewing of the video tape, at the end of which, we might note, defendant described his intake of beers as four or five. The municipal judge's conclusion with respect to the first test was that defendant did "fairly well." He accepted as reasonable the defendant's explanation for why he had not walked heel-to-toe because the tape showed defendant holding his pants leg up. He also accepted as reasonable defendant's explanation for why he counted down below 78. The judge indicated that he did not perceive any swaying during the last test. Consequently, he concluded that "perhaps the officer had a good hunch, and maybe it was a good hunch. I don't know if he was or wasn't under the influence. But based upon what I have reviewed here, the Court does find that, in fact, there was not probable cause for the arrest of this defendant."

The Law Division judge also viewed the tape, and agreed with the municipal court judge's perceptions, and with his conclusions that the defendant had offered reasonable explanations for his inability or failure to follow some of the instructions.

We have also viewed the tape, and we have found nothing on it that contradicts the observations made by the trial judges. However, we note that the quality of the tape is not particularly good. While we do not doubt that each judge described what he saw on the tape, given the tape's quality, we are not convinced that it demonstrates Lawler was incorrect when, for example, he said that he saw defendant sway slightly during the last test.

Lawler was entitled to arrest defendant if he had a well-grounded suspicion that defendant's consumption of alcohol had affected his judgment and control to a degree that made it improper for him to drive. State v. Johnson, 42 N.J. 146, 165 (1964). In other words, the degree of intoxication required is not outright drunkenness, but that degree of intoxication which shows that defendant's physical coordination or mental faculties have been deleteriously affected by alcohol. Ibid.

In State v. Badessa, 373 N.J. Super. 84, 92 (App. Div. 2004), rev'd, on other grounds, 185 N.J. 303 (2005), we held that "the officer had probable cause to request a breathalyzer test when he observed that defendant's eyes were glassy, noticed an odor of alcohol on defendant's breath and that defendant's speech was slow and slurred." Here, the officer observed defendant drive over the double yellow lines three times; his vehicle smelled of alcohol; he admittedly had four or five beers that evening; his speech was slightly slurred; his eyes were watery; he failed to answer some of the questions posed to him; he failed to complete at least two of the field sobriety tests as directed; and the arresting officer formed the opinion that defendant was intoxicated. In our view, those facts clearly established probable cause. Therefore, we reverse and remand the case for trial.

Reversed and remanded.

 

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A-1941-05T5

April 18, 2006