STATE OF NEW JERSEY v. MARK DILLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1530-07T41530-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK DILLON,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Municipal Appeal No. 49-07.

Troy R. Smith, attorney for appellant.

Edward J. De Fazio, Hudson County

Prosecutor, attorney for respondent

(Nidara Y. Rourk, Assistant Prosecutor,

on the brief).

PER CURIAM

Following an unsuccessful motion challenging the arresting officers' probable cause to arrest defendant Mark Dillon, defendant entered a conditional plea of guilty to driving while intoxicated, N.J.S.A. 39:4-50, reserving his right to appeal the denial of the motion. The municipal judge sentenced defendant to one day in jail with credit for time served, suspended defendant's driving privileges for one year, assessed statutory fines and penalties and ordered defendant to attend the Intoxicated Driver's Resource Center. On the trial de novo in the Law Division, the judge concluded that there was probable cause to arrest and imposed the same sentence. Defendant appeals, and we affirm.

These are the facts adduced at the hearing on the motion. On February 8, 2007 at 12:37 a.m., Hoboken Police Officer John Hermann observed defendant operating a 2004 Dodge Ram pickup truck without a front right wheel. The absence of the wheel produced twenty foot-high sparks and a "[l]oud grinding noise" from its front right axle. As the officer followed defendant in his patrol car, he saw defendant cross the double yellow line and drive in the middle of the roadway.

Officer Hermann stopped defendant at a traffic light and approached the vehicle from the driver's side. As the officer opened the door to the pickup truck, he observed a "very strong odor of alcohol coming from the vehicle" and further observed defendant sitting at the wheel "motionless," with "droopy eyelids" and "just staring straight ahead." In a brief verbal exchange of approximately thirty seconds, the officer noticed that defendant's speech was "slurred," and upon inquiry, defendant mentioned that he had ten to twelve drinks that evening. As Officer Hermann asked defendant to step out of the vehicle, defendant had to hold on to the car door rear portion of the cab and the side of the truck for support in order not to fall. Because the nearby sidewalk was under construction, the officer concluded that defendant was not in a condition to submit to a field sobriety test. Officer Hermann then placed defendant under arrest without administering a field sobriety test.

Shortly after Officer Hermann stopped Dillon at the red light, Hoboken Police Officer Edward Lepre arrived on scene. He witnessed defendant stumbling out of his car, and Officer Hermann handcuffing defendant against the pickup truck almost immediately thereafter. After his arrest, defendant was transported to the police station where the police administered a breathalyzer test, which indicated defendant's blood alcohol level as 0.14.

At trial, defendant moved to suppress the breathalyzer and subsequent evidence obtained against him, arguing the police lacked probable cause to arrest him. Defendant then asserted that after the officer stopped the car, the only grounds on which he had to assume probable cause to arrest was the potent odor of alcohol emanating from the car. Defendant contended that standing alone, the smell of alcohol cannot substantiate probable cause.

Judge Glatt denied the motion. She first noted that police administer field sobriety tests to bolster the prosecution's case against suspects, not to protect the rights of the suspected citizens. She then found that driving with three wheels and sparks flying from the missing wheel, the smell of alcohol and the testimony of Officer Hermann concerning the slurred speech and need to grasp the car for balance demonstrated probable cause to arrest.

On the appeal de novo, Judge Theemling affirmed and concluded that the totality of the circumstances described by the State provided sufficient probable cause to support the arrest.

On appeal, defendant again asserts that there was no probable cause to arrest, and Officer Hermann was not a credible witness.

When the Law Division conducts a trial de novo on the record developed in the municipal court, our appellate review is limited. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005). "The Law Division judge was bound to give 'due, although not necessarily controlling, regard to the opportunity of a [municipal court judge] to judge the credibility of the witnesses.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 157 (1964)). Here, the Law Division affirmed the municipal court's denial of the motion. Our review "is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." Ibid. (citing Johnson, supra, 42 N.J. at 161-62). However, the municipal court judge's finding are critical when assessing such issues as credibility.

Since the Law Division judge is not in a position to judge the credibility of witnesses, he or she should defer to the credibility findings of the Municipal Court judge. Ibid. (quoting State v. Locurto, 157 N.J. 474 (1999)). Furthermore, when the Law Division agrees with the municipal court, the two-court rule must be considered. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, supra, 157 N.J. at 474 (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). We have carefully reviewed this record and find the decisionS of both the municipal court and Law Division judges were well-supported by the record.

Nothing suggested by defendant implicates questions as to the credibility of Officer Hermann. Given the unique circumstances of the observed driving, the strong odor of alcohol and defendant's movements, the suggestion that it would take longer than thirty seconds to conclude that defendant was under the influence is unavailing.

Finally, we are satisfied that the finding of probable cause is supported by the record. As we have just noted, the unique circumstances of defendant driving on three wheels and the erratic driving coupled with the officers' various observations made after stopping the vehicle, suffice to establish probable cause. See State v. Sweet, 195 N.J. 357, 360-67 (2008) (affirming two driving while intoxicated convictions on other grounds in a consolidated case where each defendants' failure to follow traffic regulations, coupled with law enforcement officers' subsequent observations of the defendants' behavior after being pulled over, established probable cause for their arrests), cert. denied, 77 U.S.L.W. 3709 (2009); State v. Moskal, 246 N.J. Super. 12, 20-22 (App. Div. 1991) (stating "[t]he yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . is whether the arresting officer had reasonable grounds to believe that the driver was operating a motor vehicle in violation of [N.J.S.A. 39:4-50]" and finding probable cause for arrest following a DWI checkpoint stop when the arresting officer subsequently witnessed the defendant's flushed face, drooping red eyes, strong odor of alcohol and the defendant admitted to drinking) (internal quotation marks and citation omitted); State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.) (finding probable cause for arrest when the defendant was pulled over for driving his vehicle erratically and the arresting officer subsequently detected an odor of alcohol and the defendant "had difficulty performing coordination tests at the scene"), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990); State v. Weber, 220 N.J. Super. 420, 423 (App. Div.) (finding probable cause to arrest the defendant for driving while intoxicated after "defendant had violated the stop sign, had an odor of alcohol on his breath, was unable to adequately perform certain balance tests and demonstrated an inappropriate demeanor and lack of reasonable judgment when requested to have someone else drive"), certif. denied, 109 N.J. 39 (1987).

We have carefully considered defendant's additional arguments and conclude that they are without merit. R. 2:11-3(e)(2).

 
Affirmed.

The State voluntarily dismissed a companion charge of leaving the scene of an accident. N.J.S.A. 39:4-129.

Defendant also pled guilty to the enhanced penalty for driving while intoxicated within 1,000 feet of school property. See N.J.S.A. 39:4-50(g)(1) -(3).

(continued)

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A-1530-07T4

July 30, 2009