STATE OF NEW JERSEY v. FLOYD A. BEIERLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0775-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD A. BEIERLE,

Defendant-Appellant.

________________________________

September 21, 2010

Submitted August 31, 2010 - Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

Municipal Appeal No. 38-09.

Floyd A. Beierle, appellant pro se.

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Stephen E. Raymond, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

On December 26, 2008, defendant Floyd A. Beierle was issued a complaint and summons charging him with a violation of N.J.S.A. 39:4-88b. The statute requires a driver on a multi-lane roadway to remain within the lane "until the driver has first ascertained that the movement [to a different lane] can be made with safety." Ibid. Defendant was not charged with a violation of N.J.S.A. 39:4-126, which requires a driver to signal before moving to the left or right "in the event any other traffic may be affected by such movement."

After a trial on May 7, 2009, the municipal court found defendant guilty of violating N.J.S.A. 39:4-88b and imposed a $56 fine and $33 court costs. Defendant appealed his conviction to the Law Division, and after a trial de novo on the municipal court record, the Law Division found defendant guilty and reimposed the sentence imposed by the municipal court. Defendant now appeals to this court, contending that the evidence is inadequate to support the conviction. We agree and reverse.

Defendant's conviction is based on the testimony of the officer who issued the summons and complaint and his own testimony. At about 2:00 p.m., the officer was driving in the left, northbound lane of Route 68. The weather was clear and dry. Defendant was driving in the same lane and in front of the officer. As the officer approached his car, defendant moved from the left lane to the right lane and pulled in behind a tractor trailer. The officer was about 100 to 200 yards behind defendant's car when defendant moved into the right lane. He noticed that defendant had not signaled before changing lanes. After passing defendant's car, the officer saw him change from the right lane back to the left, pass the tractor trailer and then return to the right lane. The officer did not notice whether defendant used his signal before moving to the left lane to pass the tractor trailer, but he did notice that defendant did not signal when he returned to right lane. When asked, the officer said defendant was about ten yards, or thirty feet, ahead of the tractor trailer when he returned to the right lane after passing. He did not see the tractor trailer take any evasive action in response to defendant pulling in front of him and admitted that he had not seen any other vehicles in the vicinity. The officer explained that he issued a summons for making an "unsafe lane change" because defendant had changed lanes twice without signaling.

Defendant testified and claimed to have signaled before each lane change. He also explained that he passed the tractor trailer, which had just entered the roadway, because it was fully loaded with cars and moving slowly. In closing argument before the municipal court judge and on his appeal to the Law Division, defendant pointed out that he was not charged with a violation of N.J.S.A. 39:4-126 based on a failure to signal his intention to change lanes but charged with a different violation that was not supported by the evidence.

The municipal court judge credited the officer's testimony and did not believe defendant's contradictory assertions about the signals he had given. Both the municipal court judge and the Law Division judge concluded that defendant's failure to signal made the lane change unsafe.

When the municipal court and Law Division judges have made the same findings of fact, this court may not disturb them "absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999). The question presented on this appeal, however, is a question of law: whether a driver can be found guilty of violating N.J.S.A. 39:4-88b based solely on a failure to signal prior to making a lane change. We owe no deference to the trial judges' interpretations of the statute. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999).

Neither of the judges who considered the evidence in this case addressed the elements of N.J.S.A. 39:4-88b. As noted at the outset of this opinion, the statute prohibits a lane change by a driver who has not "first ascertained that the movement [to a different lane] can be made with safety." Ibid. A failure to signal may be relevant to whether a lane change was made safely but is not determinative. The State was required to establish that the lane change was made at a time when it was not safe. As the conviction is not based on a finding that the road and traffic conditions made it unsafe for defendant to return to the right lane at a point 300 feet in front of a slow-moving tractor trailer, it cannot be affirmed.

Reversed.