STATE OF NEW JERSEY v. GARY N. BENAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3929-05T13929-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY N. BENAS,

Defendant-Appellant.

__________________________________________________________

 

Submitted November 14, 2006 - Decided December 14, 2006

Before Judges Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Appeal No. MA05-

117.

Smith & Shaw, attorneys for appellant (Thomas J.

Smith, III, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Gary Benas was charged with driving while intoxicated (DWI) in a school zone, in violation of N.J.S.A. 39:4-50(g)(1). The municipal court granted defendant's motion to suppress, based on the State's failure "to sustain the probable cause necessary in order to effectuate a legal stop of the [d]efendant's vehicle. . . ." The State appealed to the Law Division, and the suppression order was reversed. Defendant was convicted of violating the DWI statute in municipal court, and he appealed to the Law Division. The Law Division judge determined that defendant's two breathalyzer test readings, indicating that his blood alcohol content was .13 percent, established a per se violation of the DWI statute.

The relevant facts were summarized by the Law Division judge as follows:

On October 7, 2004, the defendant was operating a red Ford in Englishtown. At approximately 6 p.m. that evening[,] Officer Michael McGinnis (phonetic) [MacInnes] of the Englishtown Police Department was on duty in a marked patrol car, conducting random vehicle plate checks at the intersection of Main Street and Tennent Ave. Officer [MacInnes] observed the defendant's vehicle with the license plate from a car dealer. Upon running the check it was determined that [the] plate was part of a series of plates issued to an automobile dealer.

The check also revealed that the plate from the series had been stolen in New York on August 10th[,] 2004. However, the exact stolen plate was not identified. The officer called dispatch and dispatch requested confirmation on which plate had been stolen. While waiting for confirmation, Officer [MacInnes] followed the defendant.

The defense offers that the officer stopped the defendant after he observed Mr. Benas . . . turn suddenly into a gas station. The State however expands upon this offering that the officer observed the Ford driven by the defendant touch the double yellow line and then turn suddenly into the gas station. The State further submits that while turning left into the gas station, the defendant nearly hit an [o]ncoming vehicle before jerking the car to the right.

Officer [MacInnes] approached the car in the gas station and asked the defendant for his license, registration and insurance card. The defendant was informed that a computer check revealed that the license plate on his vehicle was stolen, to which he responded that one of his business partners had had a license plate stolen in New York.

As this time, Officer [MacInnes] noted that the defendant spoke in slurred speech. His eyes were bloodshot and watery, and that there was an odor of alcohol emanating from the vehicle. When asked if he had been drinking, the defendant answered yes, claiming he had consumed one or two drinks. The officer ordered Mr. Benas out of the vehicle. Upon exiting the vehicle, the defendant informed the officer that he had a bad hip and a bone infection in his foot. The defendant could not perform either the one leg stand test or the walk and turn test.

When the officer attempted to perform the horizontal gaze nystagmus test, the defendant was non[]compliant, and the test was not able to be administered. The defendant was subsequently arrested and transported to the Englishtown Police Department to have a breathalyzer administered.

During the processing of the defendant, there was a power outage in Englishtown, and the police station was subject to a power failure. Mr. Benas was subsequently transported to the Manalapan Police Department by Officer Cook, a certified breathalyzer operator for the administration of the breathalyzer test. Two tests were administered by Officer Cook at the Manalapan station. With the defendant's blood alcohol reading being .13 each time, which is .05 above the legal limit of .08 . . . .

On this appeal, defendant presents the following arguments:

POINT I

THE POLICE OFFICER LACKED A REASONABLE AND ARTICULABLE SUSPICION SUFFICIENT TO PERMIT HIM TO STOP THE VEHICLE[.]

POINT II

THE BREATHALYZER READINGS WERE IMPROPERLY ADMITTED INTO EVIDENCE.

After reviewing the record and applicable law in light of the contentions advanced by defendant, we conclude that the findings by the Law Division judges are firmly supported by sufficient credible evidence, and their conclusions predicated on those findings are legally sound. We therefore affirm defendant's conviction.

As noted by Judge Uhrmacher, the municipal court applied the wrong legal standard when it granted defendant's motion to suppress. The municipal court ruled that the State had failed to establish "probable cause," but the issue was whether the arresting officer had a reasonable suspicion that defendant had violated the law. Judge Uhrmacher correctly concluded that, under a totality of the circumstances analysis, Officer MacInnes had a constitutional basis for the initial stop of the vehicle defendant was driving.

"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). "[T]he burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." Ibid. The proper inquiry for determining the validity of a warrantless search is whether the conduct of the police officer "was objectively reasonable, without regard to his or her underlying motives or intent. . . . [T]he Fourth Amendment proscribes unreasonable actions, not improper thoughts." State v. Bruzzese, 94 N.J. 210, 219 (1983).

A police officer is justified in stopping a motor vehicle when he or she has "at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law . . . ." Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); accord State v. Locurto, 157 N.J. 463, 470 (1999); State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). This standard requires less objective evidentiary justification than the probable cause test. See State v. Pineiro, 181 N.J. 13, 20 (2004) (stating that an investigatory stop based upon reasonable suspicion of unlawful conduct "need not rise to the 'probable cause necessary to justify an arrest'") (quoting State v. Nishira, 175 N.J. 502, 511 (2003)); see also State v. Davis, 104 N.J. 490, 505 (1986) (noting that common sense and good judgment require that police officers be allowed to conduct some investigative street encounters without probable cause).

In the present matter, defendant's abnormal operation of his automobile provided Officer MacInnes with a reasonable and objective basis to stop defendant's vehicle. See State v. Washington, 296 N.J. Super. 569, 572 (App. Div. 1997) (police officer had reasonably objective basis to stop defendant's automobile when defendant was driving thirty-six miles per hour in forty-five mile-per-hour business zone and was weaving within his lane of traffic at 12:20 a.m.); State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992) (stop of defendant's automobile was objectively reasonable when defendant was observed driving less than ten miles per hour in twenty-five mile-per-hour zone shortly after 2 a.m.). And the license plate check by Officer MacInnes provided further justification for the initial stop. See State v. Pitcher 379 N.J. Super. 308, 311 (App. Div. 2005) (holding that motor vehicle stop based on mobile data terminal check of license plate number was reasonable even though the database entry showing defendant's driver's license was suspended was erroneous), certif. denied, 186 N.J. 242 (2006).

We are also satisfied that the breathalyzer readings were properly admitted into evidence. The ampoule assay report from Guth Laboratories, marked into evidence as S-7, bore the same control number (00104) as the ampoules that were used by Patrolman Peter Cook on October 7, 2004, when he administered the breathalyzer tests to defendant. And Officer Cook testified as follows:

After I observed that [the breathalyzer machine] had reached the operating temperature, I then removed an amp[o]ule from the box. I noted down the amp[o]ule control number.

Q. And what number did you note down the amp[o]ule control number?

A. 00104. That was a reference amp[o]ule. I gauged that amp[o]ule and inserted it in the left hand holder.

Q. Just describe what you mean by you gauged the amp[o]ule.

A. Well, you check it to make sure that the amount of solution in the amp[o]ule is correct before you proceed to use that.

Q. How do you do that?

A. You use an A gauge that you place, you test to make sure first that it is the right size bottle. And then, you put it inside and you turn that over. And it fits inside the gauge. And you check for what is called the line of meniscus. As long as that lines up, then you are okay with that amp[o]ule.

Q. And what was the result when you gauged the amp[o]ule back on October 7, 2004?

A. That the amp[o]ule was fine, and that it could be used.

Q. What did you do next?

A. I placed that in the left hand holder. And then, I removed another amp[o]ule to be the test amp[o]ule. I jotted down the control number.

Q. And what control number did you jot down?

A. Actually, I verified that it was the same control number, which I jotted down for the reference one, which was 00104.

After I verified that it was the same control lot number, I then proceeded to test that amp[o]ule by verifying that it was the right size.

Q. And how did you do that?

A. The same thing. With the one side of the gauge, I just check it to make sure that it did not go into the holder that shows that it is the right size amp[o]ule.

I then flip that over, placed it inside the gauge. I opened it. After opening it, I then held it up and checked to make sure that no fluid had escaped and that it met the line of meniscus was lined up with the top of the gauge.

Q. And had any fluid escaped?

A. No fluid had escaped.

Q. And what did you do next?

A. At that point, I placed it in the right hand holder.

Q. And what did you do after that?

A. After that I removed a packet that contained a bubbler. I removed the bubbler and I inserted it into the test amp[o]ule and connected it to the outlet to the machine.

Q. And did everything appear to be operating correctly according to your training at that point?

A. Yes, everything was going fine.

The breath test coordinator for the State Police, Trooper Huber, identified Exhibits S-8, S-9, and S-10 as breath testing instrument inspections that he performed. During his inspections of the breathalyzer machine on September 3, 2004, and November 19, 2004, Huber used ampoules from control lot number 00403, but on January 10, 2005, Huber tested ampoules from control lot number 00104. Thus, ampoules from control lot number 00104 were tested and found to be satisfactory by an independent laboratory (as evidenced by the Guth laboratory Assay Certificate), and ampoules from control lot number 00104 were randomly tested and were found to be satisfactory by Patrolman Cook on October 7, 2004, and Trooper Huber on January 10, 2005.

The criteria for admitting breathalyzer test results into evidence were established in State v. Johnson, 42 N.J. 146, 171 (1964), and later reaffirmed in Romano v. Kimmelman, 96 N.J. 66, 81-82 (1984). Admissibility requires proof of three conditions: (1) the breathalyzer instrument was in proper working order; (2) the test was administered by a qualified operator; and (3) the test was administered in accordance with accepted standards. Romano, supra, 96 N.J. at 82. The State must prove each of these requirements by clear and convincing evidence, id. at 90, and it did so in this case.

We have previously stated that the solution contained in ampoules bearing the same control lot number is "presumed to be homogeneous." State v. Maure, 240 N.J. Super. 269, 282 (App. Div. 1990) aff'd o.b., 123 N.J. 457 (1991). We also noted that random sample testing of ampoules by trained police officers "is reasonably reliable and yields appropriate results." Id. at 283. That is what happened here, and Judge DeStefano correctly concluded that the breathalyzer machine "was in proper working condition," and the ampoules "were taken from a properly mixed batch" when defendant was tested.

 
Affirmed.

(continued)

(continued)

11

A-3929-05T1

December 14, 2006