STATE OF NEW JERSEY v. LANCE KNOLMAYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4836-04T24836-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LANCE KNOLMAYER,

Defendant-Appellant.

________________________________________

 

Argued January 11, 2006 - Decided April 5, 2006

Before Judges Winkelstein and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 59-04.

John Menzel argued the cause for appellant.

Thomas Cannavo, Assistant Prosecutor, argued the cause for respondent (Thomas F. Kelaher, Ocean County Prosecutor, attorney; Mr. Cannavo, on the brief).

PER CURIAM

Defendant, Lance Knolmayer, appeals his conviction for driving while intoxicated (DWI) and refusal to submit to a breathalyzer test, after a trial de novo in Superior Court. R. 3:23-8(a). During the municipal court hearing, the parties stipulated to the use of the Mantoloking police report dated April 23, 2004, and no testimony was presented.

The facts taken from that police report follow. At 2:06 a.m., William Shewan pulled off Route 528 onto Barnegat Lane North and noticed defendant's car parked curbside in front of a private residence, located at 1125 Barnegat Lane, three doors from the corner of Herbert Street and Barnegat Lane. The car was not running and the lights were off. Earlier that morning, at 1:49 a.m., Officer Shewan stopped a vehicle in the same location.

As he approached defendant's vehicle, the officer saw defendant sitting in the driver's seat. Upon reaching the open driver's side window, Officer Shewan "smelled a strong odor of an alcoholic beverage coming from the vehicle." He observed a six-pack of beer with one beer missing on the passenger seat. When asked for his credentials, defendant advised "he was not driving and kept stating there were no keys in the ignition of the vehicle." Defendant's registration reflected he was the vehicle's owner. He explained he left "Use to Be's Bar" with a friend, who drove the vehicle to the current location and then left the area with another. Officer Shewan asked defendant for the keys to the vehicle to remove it from the roadway, where he felt it would be a hazard to anyone turning off Rt. 528 on to Barnegat Lane. Defendant declined to respond further.

Thereafter, a back-up patrolman arrived. As defendant exited his vehicle, Officer Shewan observed that "he was unsteady on his feet and swayed when he was not walking around. [His] clothing was also disheveled and his pants zipper was open." Defendant refused to answer any more questions and said he was calling his lawyer. A verbal exchange ensued. When the officers suggested defendant's vehicle would be towed, he responded, "Go ahead and be scum bags." Defendant "continued to be unreasonable and uncooperative . . . to ramble on and insult both officers, [with] his behavior . . . becoming increasingly more belligerent and uncooperative." At one point, defendant walked away, ignoring the officers' requests to stop, then used his cell phone to make a call.

Defendant was placed under arrest for driving while intoxicated, handcuffed, secured in the rear of patrol car and advised him of his Miranda rights. Thereafter, Officer Shewan "returned to check the area to insure that the property that the vehicle was parked in front of [sic] had not been entered" and searched defendant's vehicle, locating the keys in the vehicle's center console. The keys were given to Performance Towing to remove the vehicle.

Defendant was taken to police headquarters. He asked for his attorney and declined to submit to a breathalyzer test. Summonses were issued for: obstructing the passage of vehicles, N.J.S.A. 39:4-67; driving while intoxicated, N.J.S.A. 39:4-50(a); refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a; reckless driving, N.J.S.A. 39:4-96; and improper parking, Mun. Ord. 315.

The municipal court denied defendant's pre-trial motions to allow a jury trial, dismiss the refusal charge based upon the unconstitutionality of the statute, and suppress the ignition key evidence. Thereafter, the police report and the Division of Motor Vehicles Standard Statement for Operation of a Motor Vehicle were admitted into evidence by stipulation. The municipal court judge entered convictions for DWI and refusal to take a breathalyzer test. The remaining charges were dismissed. In Superior Court, Law Division, during the trial de novo, the judge denied defendant's motions for a jury trial, to

suppress the ignition key evidence and to dismiss the refusal to take a breathalyzer test charge, due to the alleged unconstitutional burden of proof set forth in the statute.

The Law Division judge convicted defendant on the DWI and refusal charges. He sentenced defendant to thirty days community service, Intoxicated Driver Resource Center screening, two year forfeiture of his driving privileges for driving while intoxicated, with a consecutive two year loss of license for the refusal to take a breathalyzer test conviction, and assessed mandatory fines and surcharges.

On appeal defendant argues:

I. Without Proof of Motor Vehicle Operation, This Court Should Acquit Defendant

II. Because Defendant Used His Vehicle as a Stationary Shelter Rather than as a Conveyance, This Court Should Acquit Him

III. Evidence Based on Observations of Defendant Did Not Establish Beyond [A] Reasonable Doubt that He Was Under the Influence of Alcohol

A. General Principles Requiring Proof Beyond a Reasonable Doubt Apply Here

B. Present Facts Do Not Establish Intoxication

IV. Absence of Proof About Motor Vehicle Operation Failed to Support a Finding of Probable Cause to Arrest Defendant for DWI

Neither Any Exception to Our Constitution's Warrant Requirement Nor Practical Convenience in the Aid of Law Enforcement Justified the Officer's Search of Defendant's Vehicle Here for Keys

VI. This Court Should Declare the Breath Test Refusal Statute Invalid Because the "Preponderance of the Evidence" Burden of Proof Prescribed for Such Refusal Violates Due Process and Is, Thus, Unconstitutional

VII. This Court Should Vacate Defendant's Conviction and Remand His Case for a Jury Trial Because He Faced Serious Quasi-Criminal and Civil Consequences as a Direct Result of the Municipal Court Proceedings

VIII. Under the Most Rational Reading of the Statute, This Court Should Sentence Defendant as a First Offender for Refusing to Submit Breath Samples

The State must prove beyond a reasonable doubt that defendant operated his automobile while under the influence of intoxicating liquor. State v. Ebert, 377 N.J. Super. 1, 10 (App. Div. 2005); State v. Grant, 196 N.J. Super. 470, 477 (App. Div. 1984). The evidence presented in this matter does not support the Law Division's finding of operation and therefore we reverse.

Determining what constitutes operation has been the subject of many judicial decisions. The term "operates" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J. 467, 478 (1987); State v. Sweeney, 40 N.J. 359, 360-361 (1963); Ebert, supra, 377 N.J. Super. at 10. "Operation may be proved by any direct or circumstantial evidence -- as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992). Courts have consistently adopted a practical and broad interpretation of the term "operation" in order to express fully the meaning of the statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).

The Supreme Court first discussed the scope of "operation" in Sweeney, supra, 40 N.J. at 360-61. In affirming defendant's DWI conviction the Court held:

a person "operates" -- or for that matter, "drives" -- a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 and [N.J.S.A.] 39:4-50.1, when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle[.]

[Ibid.]

Evidence of "intent to drive or [intent] to move the vehicle" satisfied the statutory requisite of operation so that the actual movement of the vehicle was not required. Ibid.

In State v. Daly, 64 N.J. 122, 125 (1973), the defendant, who had been drinking at a tavern, was found reclining in the driver's seat of his car, parked in the tavern lot with the engine running to power the heater. He testified that he realized he had too much to drink and decided to "sleep it off." Based upon these facts, operation was not established because "evidence from which any intent could be inferred beyond a reasonable doubt" was not presented. Ibid. The Court concluded:

the statutory sanction is against "operating" a motor vehicle while intoxicated. We conclude, as we did in Sweeney, that in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.

[Ibid. (emphasis added).]

Further expansion of what constitutes "operation" was set forth in Mulcahy, supra, 107 N.J. at 479. The arresting officer watched the defendant stagger from a tavern to his car, which was illegally parked in front of a tavern. As the defendant was about to insert his keys into the ignition, the officer reached through the window grabbing the keys from his hand. Id. at 470. The Court accepted the "split-second choice" made by the arresting officer as probable cause to require a breath test. Id. at 480. The action of attempting to turn on the ignition presented evidence of the intent to drive establishing "operation" and supporting the defendant's conviction under N.J.S.A. 39:4-50.4a.

We have affirmed convictions for DWI when the facts and circumstances present evidence that defendant operated a vehicle while intoxicated, albeit not in the presence of the police.

In Ebert, supra, the defendant reported her car stolen when she could not locate it in the parking lot of a restaurant. 377 N.J. Super. at 5. The responding police officer arrested the defendant for DWI because she evidenced physical signs of intoxication when he addressed her in the restaurant parking lot, had her car keys in her hand, admitted she had been drinking when she drove into the parking lot to "sleep it off" and parked her vehicle between two parking spots. Ibid. Under these circumstances we agreed with the municipal court's conclusion that defendant had driven to the restaurant while intoxicated, supporting her conviction for DWI. Id. at 11.

In State v. Stiene, 203 N.J. Super. 275 (App. Div.), certif. denied, 102 N.J. 375 (1985), we affirmed the defendant's DWI conviction, finding operation was supported by evidence of the defendant's intent to operate coupled with a concerted, but unsuccessful attempt to move his vehicle. Although the car was out of gas so its engine could not be engaged it could be moved when the gearshift lever was held between "park" and "reverse." The defendant attempted to move the vehicle by holding the gearshift and steering while another car pushed his vehicle.

In State v. Hanemann, 180 N.J. Super. 544, 554 (App. Div.) certif. denied, 88 N.J. 506 (1981), defendant's DWI conviction was affirmed based upon the evidence that his vehicle was found damaged and he had injuries consistent with the physical accident scene, including glass on his face, even though he was not in his car when arrested. Ibid.

Again, in State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974), circumstantial evidence supported the conclusion that the defendant operated his vehicle while intoxicated. He was found alone and deeply asleep, in his automobile, on the shoulder of an interstate highway with the headlights on and the engine running. When awakened, the defendant admitted he had been drinking and thereafter, drove his vehicle. He pulled over because he did not feel well. Ibid.

This overview illustrates what facts support a finding of "operation" in the context of the driving while intoxicated statute. These decisions further the salutary objectives of the Legislature "to curb the senseless havoc and destruction caused by intoxicated drivers." Tischio, 107 N.J. at 512; see also State v. Hammond, 118 N.J. 306, 318 (1990); Morris, supra, 262 N.J. Super. at 417. However, when applying a pragmatic interpretation of the statute to achieve the laudable policy objective, the court must insure proper application, punishing only conduct that falls within the bounds of the statute. The question then posed is whether the State has proven beyond a reasonable doubt, that defendant "operated" his vehicle while intoxicated. See Tischio, supra, 107 N.J. at 513; Morris, supra, 262 N.J. Super. at 418.

The scope of appellate review in this case is limited to determining whether the record contains sufficient credible evidence to support the findings of the Law Division judge. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). The Law Division judge made the following determination based upon the municipal court record on the issue of operation:

In this case the defendant and his vehicle arrived at Barnegat Lane sometime between 1:49 and 2:06 a.m. Officer Shuen [sic] found the defendant seated in the driver's seat with access to the keys which were later discovered by him in the center console. In the report the defendant made a statement that his friend had driven the vehicle to that location and then run [sic] off. . . . Then as Officer Shuen [sic] described the situation in the police report, the defendant would have exited the passenger side, placed a six-pack of beer on the passenger seat and sat himself behind the wheel. If the defendant's version is found to be reasonable or credible, defendant's access to the keys and his movement to the driver's seat could show an intent to operate a motor vehicle, citing [Stiene, supra, 203 N.J. Super. at 280].

Therefore, with respect to the charge of [N.J.S.A.] 39:4-50 this [c]ourt de novo makes the following findings. Given the evidence as stipulated in the police report, both direct and circumstantial, and the reasonable inferences to be drawn therefrom, this [c]ourt is satisfied the defendant intended to operate the motor vehicle and that there is proof beyond a reasonable doubt that the defendant was under the influence of an intoxicating beverage at the time. The [c]ourt again reiterates its finding that this defendant was approached by the officer within a time frame which was between 1:49 and 2:06 a.m. . . .

This [c]ourt finds de novo that this defendant admitted that he had been at a bar; that there was a strong odor of alcohol emanating from defendant's open window and vehicle, and that there was a beer missing [from the six-pack] on the passenger's seat.

. . . And the [c]ourt finds the that the defendant's version as set forth in the police report which was stipulated [was] not reasonable under the circumstances.

The more reasonable explanation was that defendant had in fact operated the motor vehicle, had driven himself there, and was seated in the driver's seat during all times material.

After our careful review, we find the Law Division judge's conclusion that the State proved "intent to operate" under these facts, is not supported by the evidence. Defendant was found sitting in the driver's seat of his car at 2:06 a.m., legally parked in a residential neighborhood, with the car engine off and no keys in the ignition. The record fails to reveal the car was parked awkwardly or showed signs of damage. The suggestion the vehicle posed a traffic hazard was dismissed with the illegal parking citation. The officer did not view defendant driving his car and defendant's uncontraverted statements assert otherwise.

Moreover, no inference of operation is shown beyond a reasonable doubt. Unlike in Mulcahy, supra, defendant did not have his key in his hand about to place it in the ignition. 107 N.J. at 469. Defendant's ignition key was secured in a console, not readily visible to the arresting officer and found only upon a search of the vehicle. These facts are much like those presented in Daly, supra, 64 N.J. at 125. The State has not shown defendant's "intent to drive or move the vehicle at the time" and "there was no evidence from which any such intent could be inferred beyond a reasonable doubt." Ibid.

The proscribed "outer limits" of "operation" delineated in Mulcahy, supra, 107 N.J. at 480, require something more than sitting in a parked vehicle. Ibid.

[W]hen one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation, at least sufficient to warrant an arrest for purposes of submission to the sobriety test required by N.J.S.A. 39:4-50.4a.

[Id. at 479. (emphasis added).]

Defendant's presence behind the wheel was not "combined with physical movements to put the car in motion" and therefore was insufficient to evidence "operation" under N.J.S.A. 39:4-50(a).

We next turn to the refusal conviction under N.J.S.A. 39:4-

50.4a, which provides in pertinent part:

the municipal court shall revoke the right to operate a motor vehicle of any operator who, after being arrested for a violation of [N.J.S.A. 39:4-50], shall refuse to submit to a test provided for in [N.J.S.A. 39:4-50.2] when requested to do so. . .

The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer; and if these elements of the violation are not established, no conviction shall issue.

[N.J.S.A. 39:4-50.4a.]

During the trial de novo, defendant presented arguments similar to those now presented and specifically maintained that notwithstanding the statutory language, the state must prove each element of the statute beyond a reasonable doubt. The findings made by the Law Division judge adhered to the preponderance of the evidence burden of proof, following State v. Widmaier, 157 N.J. 475, 495-96 (1999). Thereafter the State requested an alternative finding be made beyond a reasonable doubt. The Law Division judge declined.

This too, warrants reversal, as the Supreme Court has held that "because a breathalyzer refusal case is properly a quasi-criminal matter, the constitutionally required burden of proof is the one applicable to criminal cases: proof beyond a reasonable doubt." State v. Cummings, 184 N.J. 84, 89 (2005); See also In adopting this new rule of law, the Court employed "pipeline retroactivity" requiring the State to prove the statutory elements beyond a reasonable doubt in any case on direct appeal at the time Cummings was decided. Id. at 99. As this matter was in the "pipeline," the conviction is set aside and the matter is remanded to the Law Division for retrial in light of Cummings, supra, 184 N.J. at 89. State v. Kean, 185 N.J. 29 (2005).

Based upon our findings we need not address defendant's remaining arguments raised on appeal.

Reversed with remand of the refusal charge, under N.J.S.A. 39:4-50.4a, to the Law Division for a new trial consistent with this opinion.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The municipal court stated the other charges resulted in "not guilty" findings; however, the summons' notation stated the charges "merged." No charge may be legally merged, only convictions may merge. State v. Martin, 335 N.J. Super. 447, 450-51 (App. Div. 2000).

(continued)

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A-4836-04T2

April 5, 2006