STATE OF NEW JERSEY v. GERMAINE R. LO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5847-07T45847-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERMAINE R. LO,

Defendant-Appellant.

__________________________

 

Argued May 26, 2009 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-037.

Alton D. Kenney argued the cause for appellant (Lomurro, Davison, Eastman & Munoz, P.A., attorneys; Mr. Kenney, of counsel; Carrie A. Lumi, on the brief).

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel).

PER CURIAM

Defendant, Germaine R. Lo, appeals from her conviction for refusing to consent to the taking of a breath sample, N.J.S.A. 39:4-50.2, after a trial de novo in the Law Division. We affirm.

On August 31, 2007, defendant was issued a summons and arrested for reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, speeding, N.J.S.A. 39:4-98, failure to travel inside a designated lane, N.J.S.A. 39:4-88(d), possession of an open alcohol container in a motor vehicle, N.J.S.A. 39:4-51b, driving while intoxicated (DWI), N.J.S.A. 39:4-50, DWI in a school zone, N.J.S.A. 39:4-50(g), and, subsequent to her arrival and processing at the Wall Township Police Department headquarters, refusing to consent to the taking of breath samples, N.J.S.A. 39:4-50.2. After the municipal court judge found that there was a reasonable and articulable suspicion for the motor vehicle stop and probable cause for the DWI arrest, defendant entered a conditional guilty plea to the charge of refusal. The court suspended defendant's driving privileges for seven months, directed that she serve a period of twelve hours at an Intoxicated Driver Resource Center, and assessed appropriate fines and penalties. The sentence was stayed pending appeal.

Defendant challenged probable cause for the DWI arrest in the municipal court, in the Law Division proceeding, and in this appeal. Although defendant challenged the reasonable and articulable suspicion for the motor vehicle stop in her appellate brief and in the Law Division, counsel conceded in oral argument that the stop was lawful.

Given the factual circumstances that drew the officer's attention to defendant, this concession is warranted. A motor vehicle stop must be based on a "reasonable and articulable suspicion that an offense, including a minor traffic offense, has been or is being committed." State v. Carty, 170 N.J. 632, 639-40 (2002). A defendant need not be convicted of the motor vehicle offense for which the stop was originally made. State v. Williamson, 138 N.J. 302, 304 (1994). In this case, as is detailed below, the arresting officer observed defendant speeding and weaving within her lane. Mere lane violations, such as occurred here, were sufficient to warrant a reasonable and articulable suspicion justifying the stop. See State v. Washington, 296 N.J. Super. 569 (App. Div. 1997). We will therefore not address this issue further.

Patrolman James Cadigan of the Wall Township Police Department was the State's sole witness at the municipal court proceedings and the officer who arrested defendant during the late evening hours of August 31, 2007. Cadigan testified that while driving northbound on Highway 35, he observed defendant's motor vehicle "operating at a speed higher than the posted rate," namely, fifty-five miles per hour in a forty-mile-per-hour zone. As Cadigan followed defendant's vehicle, he activated his radar system and clocked her speed. He observed defendant drift to the left from her lane of travel into the center turn lane, approximately a third of the way over the yellow dotted line designating the center lane.

After drifting, the vehicle quickly corrected, moving back towards the right, which caused the passenger side wheels to go over the white fog line onto the shoulder. The vehicle then slowly went back into its lane of travel and made a left onto Meetinghouse Road. Cadigan signaled for defendant to stop, and she immediately pulled over into a retail parking lot at approximately 10:41 p.m. When Cadigan asked for defendant's driving credentials, she was able to produce them without difficulty.

Defendant lowered her window to speak to the officer and Cadigan immediately smelled the odor of alcohol on her breath. He saw an open cooler in defendant's back seat containing partially stoppered, half-full whiskey and wine bottles. When asked where she had been, defendant responded that she had been shopping at an A&P supermarket, but admitted drinking "a glass of wine or half a glass of wine with dinner." Her face was flushed, her eyes watery and bloodshot, her lids droopy, and her speech slurred. Prior to the administration of field sobriety tests, the officer walked defendant closer to an adjacent retail store, a better lit and more level area. He used his flashlight and his overhead lights for additional illumination.

During defendant's performance of the walk-and-turn test, she lost her balance while being instructed, stopped while walking, stepped off the imaginary straight line with her entire foot, turned improperly, missed heel-to-toe contact by half an inch, and raised her arms more than six inches from her sides for balance. During the one-leg stand test, defendant put her foot down more than three times because she could not keep it elevated for the requisite period, raised her arms more than six inches, and swayed while balancing. Defendant was also administered the horizontal gaze nystagmus (HGN) test; however, the Law Division judge did not rely on the results due to Cadigan's limited credentials. Based on her flawed performance in the tests, Cadigan arrested defendant for DWI and the related offenses. At the station, she refused to submit to breathalyzer testing.

Defendant presented expert testimony during the trial to the effect that the field sobriety tests were improperly administered because she was wearing leather flip-flop sandals which impeded her performance. The expert also suggested that the officer should have offered defendant the opportunity to either change her shoes or take the test barefoot, and taken her to a more level area.

Defendant, her sister, and sister-in-law also testified. On the day of defendant's arrest, several family members were visiting defendant at her home in Wall Township. She left to have dinner with friends, driving to a restaurant in Watchung that allowed patrons to bring their own alcoholic beverages. Defendant testified that the open containers of alcohol were left over from dinner. After dinner, she returned home. According to defendant and her family, she drank no more than a mouthful or two of wine when they opened a bottle upon her return, as she did not care for its taste. Later on, defendant drove to the supermarket, with the open containers of alcohol still in her back seat. When stopped, she claimed to be on her way to a convenience store to purchase a cup of coffee for her daughter before heading home.

Two videos were introduced by defense counsel at the probable cause hearing. One showed defendant shopping at the supermarket prior to the stop. During the course of that video, defendant is observed walking steadily and striking a display with her cart on only one occasion. The second video, taken at police headquarters, was not viewed by the Law Division judge, who considered it irrelevant to the question of whether the officer had probable cause to arrest. Defendant contended to the municipal court and to the Law Division that the station house video depicted her as completely sober. Generally, defendant contended that her conduct while at the supermarket and the station, as corroborated on film, impeached the credibility of the officer.

The Law Division judge, like the municipal court judge, found the officer's testimony to be credible. In the opinion of both judges, the erratic driving, defendant's appearance, odor, admission, and performance on the field sobriety tests, warranted the arrest. Neither considered the supermarket video to be conclusive one way or the other as to her sobriety, except that both noted that she did not appear to have any difficulty walking in her sandals. The Law Division judge imposed the same penalties levied in the municipal court.

On appeal, defendant argues:

POINT I

THE LAW DIVISION JUDGE, ON DE NOVO REVIEW, COMMITTED A SERIES OF ERRORS, WHICH INCLUDE DISREGARDING HIS OBLIGATION TO CONSIDER THE COMPLETE RECORD BEFORE THE MUNICIPAL COURT AND REFUSING, ON CREDIBILITY GROUNDS, TO CONSIDER THE UNREBUTTED TESTIMONY OF DEFENDANT'S EXPERT, REQUIRING REVERSAL AND DISMISSAL OF THE MATTER IN ITS ENTIRETY.

A. THE LAW DIVISION JUDGE IMPROPERLY VIOLATED THE PERMISSIBLE SCOPE OF HIS REVIEW OF THE MUNICIPAL COURT JUDGE'S DECISION IN REFUSING TO CONSIDER THE ENTIRE RECORD AND IN SUBSTITUTING HIS OWN FINDINGS REGARDING THE CREDIBILITY OF WITNESSES.

POINT II

THE LAW DIVISION JUDGE ERRED IN ENDORSING OFFICER CADIGAN'S VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS IN STOPPING HER VEHICLE WITHOUT REASONABLE AND ARTICULABLE SUSPICION.

POINT III

THE LAW DIVISION JUDGE ERRED IN CONCLUDING, ON DE NOVO REVIEW, THAT OFFICER CADIGAN HAD PROBABLE CAUSE TO ARREST DEFENDANT BECAUSE THE STANDARDIZED FIELD SOBRIETY TESTS WERE IMPROPERLY PERFORMED, WHICH INVALIDATED THE RESULTS.

A. OFFICER CADIGAN DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT FOR DRIVING WHILE INTOXICATED.

I.

Appeals from a municipal court to the Law Division are de novo. R. 3:23-8. The trial judge must decide the case anew on the municipal court record, "giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). The trial judge is also obliged to "make his own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.), certif. denied, 95 N.J. 197 (1983). The Law Division judge's function is not an "appellate function governed by the substantial evidence rule, but rather an independent fact-finding function." Ibid.

The scope of our review is limited. We only determine whether the findings made by the trial court "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. We generally defer to decisions as to the admissibility of evidence made by the trial court. State v. Burr, 195 N.J. 119, 127 (2008) (citing State v. Jenewicz, 193 N.J. 440, 456 (2008) (applying abuse of discretion standard of review)). Although we afford no deference to the trial court's interpretation of the law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we do not reverse unless we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.

II.

To be relevant, evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Defendant contends that the video footage taken at police headquarters was relevant because it was part of the record relied upon by the municipal court, and that the Law Division judge therefore erred by not watching it. We agree that it would have been preferable for the Law Division judge to view the tape because it was a proof considered by the municipal court judge, albeit not a factor in his decision. Nonetheless, any resulting error was harmless. As the municipal court judge concluded, the officer's observations on the scene outweighed a tape made more than forty-five minutes after the stop.

Even if we were to assume that the video depicts defendant conducting herself in an entirely sober manner, that does not actually impact upon either judge's conclusion as to the probable cause the officer had at the scene. The video, obviously, does not show details such as the appearance of defendant's eyes or her scent. It does not capture defendant performing field sobriety tests or her motor vehicle straying from one side of the road to another. Ultimately, her seeming sobriety at the station was irrelevant to the decision to stop, field test, and arrest defendant.

Defendant also contends that Cadigan's testimony regarding defendant's speed should have been rejected because no certificate was admitted as to the accuracy of the radar machine. Defendant, however, was not convicted of speeding and did not plead guilty to that offense. The issue is not the accuracy of the radar machine. Cadigan's belief that defendant's car was speeding caused him to watch the car and observe it drifting within the lane lines. We do not agree, therefore, that admission of the radar reading was error, as defendant did not plead guilty to the offense and her allegedly excessive speed was only one factor contributing to Cadigan's decision to stop her.

Similarly, defendant contends that the photographs of the alcohol bottles in her back seat should not have been admitted, as the contents were not tested. This objection has no merit because defendant acknowledged that the bottles contained alcohol. In any event, the photographs merely corroborated Cadigan's observations, as the bottles were a factor in his decision to arrest defendant.

Defendant also argues that the Law Division judge erred in rejecting her expert's testimony, effectively making an impermissible credibility determination. We do not agree with this characterization. Although the Law Division judge weighed the testimony, he rejected it. That is not a credibility determination, but rather a substantive determination. A factfinder is always free to accept a portion, all, or none of an expert's testimony based on the other facts of the case. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). For example, the expert attributed defendant's failure to perform the walk-and-turn test and the one-leg stand test to her shoes. The A&P video, however, depicted her walking in them and navigating a shopping cart down supermarket aisles without difficulty. The judge simply made a substantive determination to rely more heavily on the video and reject the expert's report, which he had the right to do.

Defendant also claims that the parking lot area chosen by Cadigan for administration of the tests was so irregular as to have been the actual cause of defendant's inability to perform them. Given the lateness of the hour, the unexpected nature of the stop, and the practicalities of the situation, the officer's choice was not unreasonable. In addition, both courts viewed photographic evidence showing the surface to be relatively level, typical parking lot macadam.

III.

"'Probable cause' for an arrest exists where a police officer has a well-founded suspicion or belief of guilt. That suspicion or belief may constitute something less than the proof needed to convict and something more than a raw, unsupported suspicion." State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985). "[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]." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)) (internal quotations omitted).

As the Law Division judge noted, a heavy odor of alcohol and a suspect's admission of drinking can create probable cause for a DWI arrest, despite the suspect's successful completion of field sobriety tests. State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992). The court also noted that a strong odor of alcohol from a suspect's breath, an admission of drinking, and the appearance of a flushed face and drooping eyes create probable cause for a DWI arrest. Moskal, supra, 246 N.J. Super. at 20-21.

Defendant relies upon New Jersey Attorney General guidelines on prosecuting DWI and refusal violations and the National Highway Transportation Safety Administration (NHTSA) protocols to buttress the claim that Cadigan improperly administered the field sobriety tests. She suggests that both judges erred in disregarding Cadigan's deviations from these guidelines. Defendant points to the NHTSA 2004 manual's requirement of "a designated straight line" and "a reasonably dry, hard, level, nonslippery surface" for the walk-and-turn test. Defendant argues that Cadigan acknowledged that the parking lot was sloped, not well lit, and not in good condition, and that he had a better surface available at another nearby parking lot.

We do not agree. Cadigan's testimony was that he considered the area where the tests were administered to be reasonably lit and level, given the inherent unpredictable nature of most motor vehicle stops. Absent an extreme circumstance not present here, we will not second-guess the officer's choice. The Law Division judge relied not only on Cadigan's testimony, but also on the photographs of the area, in determining that the parking lot surface did not cause defendant's failure to perform well on the tests.

We also disagree with defendant's interpretation of the Law Division judge's comments on the record regarding her ability to walk heel-to-toe in flip-flops. We do not believe that the Law Division judge was "acknowledg[ing] the inability to walk heel-to-toe in flip-flops." When the Law Division judge said that he "understood," he was merely acknowledging that he had heard defense counsel's argument that a person cannot not properly walk heel-to-toe in flip-flops. Nor does it follow from the NHTSA 2004 manual's suggestion that suspects in shoes having heels more than two inches in height should have the opportunity to remove them, that Cadigan was required to similarly offer defendant the opportunity to remove her shoes. Neither the parking lot surface nor the shoes, in and of themselves, excused defendant's poor performance. The Law Division judge's rejection of the expert testimony was not the equivalent of improper rejection of the NHTSA guidelines.

Furthermore, we do not agree that the video footage vitiates "any hint of probable cause." A video does not depict the crucial details that the officer described in his report and testimony which he observed during his face-to-face encounter with defendant.

We therefore affirm the conviction. We conclude that the findings of the Law Division judge are based on sufficient credible evidence contained in the record, and that his determination could reasonably have been reached based upon that evidence. Johnson, supra, 42 N.J. at 162.

Affirmed. The stay of the sentence is vacated.

 

The Law Division judge denied defendant's motion to stay the suspension on the trial de novo after the conviction was reinstated and the penalties reimposed. Thereafter, we denied defendant's application for an emergent stay, which was ultimately granted by our Supreme Court. Defendant then filed a motion for stay pending appeal, which we granted on September 16, 2008.

Having viewed the video, which was provided to us, we also conclude it would have made no difference to the Law Division judge's decision to credit Cadigan's testimony.

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A-5847-07T4

July 31, 2009