STATE OF NEW JERSEY v. ROBERT E. WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3760-07T43760-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT E. WALKER,

Defendant-Appellant.

_________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Sabatino and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5851.

O'Mara Law Firm, attorneys for appellant (Peter M. O'Mara, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel; Kimberly Donnelly, on the brief).

PER CURIAM

After unsuccessfully moving to suppress evidence from a highway stop of his motor vehicle, defendant Robert E. Walker conditionally pled guilty in the Cranford Municipal Court to driving while intoxicated ("DWI"), N.J.S.A. 39:4-50(a)(1). The municipal court imposed appropriate fines and penalties, including a seven-month suspension of defendant's driver's license.

Defendant appealed the municipal judge's denial of his suppression motion, arguing that the police lacked reasonable suspicion to stop his car and also lacked probable cause to require him to exit his vehicle and perform sobriety tests. The Law Division sustained the municipal judge's determination, and so do we.

The facts in the record pertinent to our analysis may be briefly stated. Shortly before 1:20 a.m. on May 20, 2007, the State Police received a report of a Lexus sedan that had been observed driving erratically on the northbound side of the Garden State Parkway near Sayreville. The report was dispatched to Trooper Robert Apgar, who was then on patrol of the Parkway several miles north of Sayreville. About five or ten minutes later, Trooper Apgar saw a black Lexus pass by his location. He noted that the Lexus had an identical or nearly-identical license plate number to the one reported by the dispatcher.

Trooper Apgar followed the Lexus for a mile in his patrol car. During that one-mile interval, the trooper noticed that the Lexus swerved three times back and forth between the left lane and the center lane of the Parkway. The trooper also paced the car as going eighty-five miles per hour in a fifty-five mile per hour zone.

The trooper activated his overhead lights and video camera. Upon seeing the lights, the driver of the Lexus pulled over onto the right shoulder. Defendant was behind the wheel of the car, with his wife in the front passenger seat.

The trooper went to the passenger side of the Lexus and asked defendant to produce his credentials. The trooper detected the "smell of a strong alcoholic beverage" emanating from the inside of the vehicle. Although defendant denied that he had been drinking, the trooper perceived that he was slurring his words. The trooper then asked defendant to recite the alphabet and to count from fifty-five to seventy. According to the trooper, defendant's speech during these two procedures continued to be slow and slurred.

Based upon these observations, the trooper instructed defendant to get out of his car. He noticed at that point that defendant's eyes were watery and bloodshot. The trooper then administered two physical field sobriety tests: a walk-and-turn test and a one-legged stand. Defendant failed to complete those tests in a satisfactory manner. Trooper Apgar then placed him under arrest.

Defendant was issued a summons for DWI, as well as separate citations for speeding and failure to maintain his lane of travel. Subsequently, defendant moved in the municipal court to suppress the fruits of the motor vehicle stop, contending that the trooper acted without a proper factual basis. Among other things, defendant argued that the videotape of his encounter with the trooper did not corroborate the trooper's perception that defendant had been driving erratically or that he had slurred his words. Defendant also maintained that the odor of alcohol in the car solely had come from his wife, who had been drinking that night.

After hearing testimony from Trooper Apgar, the only witness at the hearing, and reviewing the videotape, the municipal judge rejected defendant's arguments and denied the suppression motion. The judge found that the trooper had a sufficient basis to stop the vehicle after the observations of swerving and speeding. The judge also noted the evidence of defendant's watery eyes and the smell of alcohol. Recognizing that defendant's alleged slurring was not audible on the tape, the judge was nonetheless satisfied, under the totality of circumstances, that the trooper had probable cause to arrest defendant.

Following a short recess and a conference with his counsel, defendant entered a guilty plea to the DWI charge, conditioned on his right to appeal the suppression ruling. Defendant requested that the speeding and lane-changing offenses merge into the DWI offense, a request which the court approved with the prosecutor's assent. The court then imposed its sentence. The license suspension and Intoxicated Driver Resource Center detention imposed for this first-time DWI offense was stayed, pending appeal.

On de novo review, the Law Division upheld the municipal judge's suppression ruling. The Law Division judge considered the police videotape, as well as the transcript of Trooper Apgar's testimony. The judge noted that, although the patrol car's tape recorder had not been activated until after the trooper had already seen defendant's improper driving, the tape does show the Lexus "going from one of the lane[s] to the other" and the car's "back lights repeatedly being braked during that period." These proofs, including the car's observed illegal speed of eighty-five miles per hour, provided the trooper with what the judge described as a "well grounded suspicion" that defendant was violating the motor vehicle laws. The stop was therefore justified.

With respect to the evidence that emerged following the stop, the Law Division judge agreed with defendant that the tape does not clearly confirm his slurred speech. The judge also agreed that it is possible that defendant's wife could have been the source of the odor of alcohol. Despite these minor points, the judge was satisfied that the trooper had probable cause to arrest defendant for DWI, given the other incriminating facts in the record. Consequently, the judge upheld defendant's conviction. The stay of the sentence was continued, pending defendant's appeal to this court.

On appeal, defendant essentially reiterates the arguments that he unsuccessfully made to the municipal judge and to the Law Division. For the reasons set forth below, we concur that the stop of defendant's Lexus was proper and that Trooper Apgar had probable cause to administer field sobriety tests and to arrest him.

The excessive speed and observed lane-weaving of the Lexus, conduct that clearly is in violation of our motor vehicle laws, provided a reasonable basis for Trooper Apgar to pull defendant's car over. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979); State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). Moreover, even if we assume, for the sake of argument, that the trooper was mistaken about defendant slurring his words and in tracing the odor of alcohol to him, there is ample other evidence of apparent intoxication here to supply probable cause for the arrest, under the totality of circumstances. State v. Nishina, 175 N.J. 502, 510-11 (2003).

In sum, we defer to the factual findings of the trial court, as they are supported here by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 474 (1999). Defendant's conviction is thus affirmed, and the stay of the suspension of his sentence is hereby vacated, effective within ten days of this opinion.

Affirmed.

 

The record contains conflicting information about whether the license number reported on the police dispatch contained one fewer digit.

Our analysis is unaffected by defendant's citation to an unpublished opinion of this court overturning a DWI conviction, as that case distinguishably involved only one observed traffic violation and no additional visual indicia of intoxication. In any event, the cited case is not precedential. R. 1:36-3.

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A-3760-07T4

December 14, 2009