STATE OF NEW JERSEY v. NDERIM AMETI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4169-08T44169-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

NDERIM AMETI,

Defendant-Appellant/

Cross-Respondent.

______________________________________

 

Argued February 23, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-070.

Timothy P. Kane argued the cause for appellant/cross-respondent (Abdy and Kane, attorneys; Mr. Kane on the brief).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent-cross-appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Ms. Jordao, Matheu D. Nunn and Erin Smith Wisloff, Assistant Prosecutors, on the brief).

PER CURIAM

Defendant Nderim Ameti appeals from a judgment of conviction in the Law Division for driving while intoxicated (DWI) and possession of marijuana. The State cross-appeals from the ruling of the Law Division on trial de novo suppressing Alcotest results. We grant the State's cross-appeal and affirm defendant's conviction on alternative grounds.

Defendant was arrested by Lincoln Park police and charged with DWI, N.J.S.A. 39:4-50, possession of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. He brought motions to suppress the evidence, which the municipal court denied after holding an evidentiary hearing. Following trial in the municipal court, the court found defendant guilty of DWI and of possession of marijuana but not guilty of possession of drug paraphernalia.

On the DWI charge, this being at least defendant's second conviction, he was sentenced to a fine of $500, a two-year loss of driver's license and registration, forty-eight hours at the Intoxicated Driver Resource Center, thirty days of community service, and appropriate fees and costs. For possession of marijuana, defendant was sentenced to a fine of $500, a six- month driver's license suspension to run concurrently with the suspension for the DWI offense, and appropriate fees and costs. Defendant's sentence was stayed pending appeal to the Law Division under Rule 3:23.

By order and statement of reasons dated March 25, 2009, the Law Division found defendant guilty of DWI, based solely on the officers' observations. The Law Division ruled the State did not follow the correct procedure for administering the Alcotest, as established in State v. Chun, 194 N.J. 54, cert. denied, __ U.S.__, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), and it suppressed the Alcotest results. The court also found defendant guilty of possession of marijuana. The Law Division imposed the same sentences as the municipal court.

Defendant filed a timely notice of appeal, and the State filed notice of cross-appeal.

I.

The record of the suppression hearing and trial in the municipal court establishes the following facts.

On July 10, 2007, at approximately 2:02 a.m., Officers Glenn Grune and John Clements of the Lincoln Park Police Department were dispatched to an address on Evergreen Drive to investigate a disturbance. When Grune arrived, he observed the resident, Rini Zaku, irate and shouting toward a car parked in the driveway with its engine running. Grune did not recall if the vehicle's headlights were on and did not see it moving at any time. Zaku shouted that his brother-in-law was in the car and "looking for trouble and he's intoxicated and has drugs in his possession." Upon seeing defendant alone in the driver's seat, Officer Grune asked him to step out. Defendant complied.

Grune observed that defendant's eyes were bloodshot and glassy and his motions were slow. In response to Grune's question whether he had anything to drink that night, defendant said he had two drinks at Lace, a bar in Wayne. Grune detected the smell of alcohol on defendant's breath. He asked if defendant would show the contents of his pockets. Defendant reached into his pockets and handed Officer Clements a package of E-Z Wider rolling papers and a pack of cigarettes. Clements found a burnt marijuana cigarette inside the cigarette pack.

Grune then began a series of field sobriety tests on defendant. He explained and demonstrated the one-leg stand test, showing defendant that he would have to hold his foot six inches off the ground with his hands at his sides and count to thirty. While giving these instructions, the officer noticed that defendant was unable to maintain his balance; he was swaying and raising his arms. Defendant finally completed the test on the third attempt but with his arms raised for balance. Grune concluded that defendant failed the test.

The next test was the walk-and-turn test, which the officer also explained and demonstrated. He instructed defendant to walk nine steps heel-to-toe with his hands at his sides, then turn and walk back the same way. Defendant was unable to maintain his balance during the instructions and, while doing the test, defendant raised his arms more than six inches for balance, walked ten steps forward, did not place heel-to-toe, turned on the wrong foot, and took ten steps to return. Again, Grune concluded that defendant failed the test.

Before administering the field sobriety tests, Grune did not ask defendant if he had any injuries or impairments that may have affected his ability to perform the tests. He did not observe defendant to have any injuries, and defendant did not complain of any. At 2:52 a.m., Grune concluded that defendant was intoxicated and placed him under arrest.

Grune then entered defendant's vehicle to retrieve the keys, and he smelled the odor of burnt marijuana inside the car. He opened the console and discovered and seized a quantity of marijuana and a glass pipe.

Upon arrival at headquarters, Officers Grune and Clements took defendant into the processing room, where his handcuffs were removed, and he was searched and read his Miranda rights. At 3:00 a.m., which was about two minutes after they arrived, Grune began asking defendant questions for the police department's Alcohol Influence Report. In response to question ten -- "Are you injured?" -- defendant responded, "No sir, just my back hurts a little." Defendant denied that he was sick, under the care of a doctor, or taking any medication except for depression. To question fourteen -- "How many alcoholic drinks have you had?" -- defendant responded "thirty."

As Grune questioned defendant, Clements and Officer Simone were in the processing room observing defendant, but Simone left the room a number of times. During the observation period, defendant's belongings were inventoried, including more than $16,000 in cash that was counted by the officers.

Clements, the operator of the Alcotest, testified that he observed defendant for twenty minutes in the processing room, as required by the procedures for conducting the Alcotest. He made sure defendant made no movements to his mouth, did not burp, or do "anything of that matter that would throw off the test[.]" Grune, who was present in the room during the entire time, also did not see defendant put anything in his mouth or "throw up."

After the observation period, Clements entered the defendant's information into the Alcotest instrument and allowed it to calibrate. Defendant then provided two breath samples at 3:19 and 3:22 a.m. Defendant's reported breath test result was 0.14% blood alcohol content (BAC).

At trial, Gary Aramini testified as an expert for the defense that, based on National Highway Traffic Safety Administration research and protocol, the field sobriety tests administered by Grune would be unreliable if defendant "had a bona fide back problem." Aramini stated it would be common sense and in accordance with procedure to ask the subject if he had some physical abnormality or injury that would affect the sobriety testing, and verbal tests could have been used in such circumstances. He also testified that if the twenty-minute observation had not been procedurally correct in this case, then the Alcotest breath results would not be reliable. Aramini stated that for the twenty minutes of observation to be uninterrupted, the operator has to be in close proximity to the subject to see if he belches, burps, or puts something in his mouth. He agreed that an operator cannot physically stare at the subject for the entire time because the operator also must input information through the keyboard of the instrument.

On cross-examination, Aramini agreed that bloodshot eyes, the odor of alcohol, and watery eyes were all factors that indicate intoxication and agreed that people lie as to the number of drinks they consume. Further, he acknowledged that defendant did not indicate he had any physical problems that would prevent him from doing the field sobriety tests.

Alban Ameti, defendant's brother, also testified for the defense that on the night of the incident, defendant called him at approximately 1:45 a.m., and he went to Zaku's house to pick him up. As he was parking his car, he observed two or three Lincoln Park Police vehicles arriving, and the police told him to leave.

The municipal court found defendant guilty of DWI and possession of CDS but not guilty of possession of paraphernalia because the residue on the glass pipe had not been tested to determine whether it was an illegal substance.

On de novo review, the Law Division upheld the constitutionality of detaining defendant, as well as the search of the interior of his car. But the court suppressed the Alcotest results, stating that the operator had failed to observe defendant continuously for the requisite twenty minutes when he was counting defendant's money. The Law Division found defendant guilty of possession of marijuana and DWI based on the observations of the officers.

On appeal to this court, defendant makes the following arguments:

I. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT OPERATED A MOTOR VEHICLE IN VIOLATION OF N.J.S.A. 39:4-50.

II. THE FIELD SOBRIETY TESTS ADMINISTERED TO THE DEFENDANT WERE UNRELIABLE IN THAT THE OFFICER FAILED TO FOLLOW PROTOCOL AND PROCEDURE DUE TO THE DEFENDANT'S BACK PAIN.

III. THE STOP AND DETAINMENT OF THE DEFENDANT WAS NOT JUSTIFIED BY THE COMMON-LAW RIGHT TO INQUIRE.

IV. THE WARRANTLESS SEARCH AND SEIZURE OF THE DEFENDANT'S VEHICLE WERE UNLAWFUL AND ALL EVIDENCE OBTAINED MUST BE SUPPRESSED.

V. THE ALCOTEST RESULTS MUST BE SUPPRESSED AS THE IMPLIED CONSENT RULE IS INAPPLIABLE TO OPERATION OF AN AUTO ON NON PUBLIC PROPERTY.

The State cross-appeals, arguing that the Alcotest result was admissible, and that reinstatement of defendant's conviction based on that evidence would not violate the double jeopardy clauses of the federal and State constitutions.

II.

We first address defendant's contention that the police violated his constitutional rights because they had insufficient justification to detain and question him or to search his car.

On a suppression motion, "a trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). Here, both the municipal court and the Law Division found that the police articulated sufficient reason to detain and question defendant, they had probable cause to arrest him for DWI, and they were justified in entering and searching his car.

Upon being dispatched to investigate a disturbance call, the police could make "field inquiry" of any person without objective evidence to suspect that person of involvement in criminal activity. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Rodriguez, 172 N.J. 117, 126 (2002); State v. Davis, 104 N.J. 490, 497 (1986). Here, the police conduct advanced beyond a field inquiry when Officer Grune ordered defendant out of his car. See Davis, supra, 104 N.J. at 498. Such a seizure, although intended to be temporary, is subject to the constraints of the Fourth Amendment and article I, paragraph 7, of the New Jersey Constitution. Id. at 498-99.

The "seizure" of defendant was a constitutionally permissible "investigatory detention" as described in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To justify such an investigatory detention, the police must have "reasonable and articulable suspicion" that the person detained is engaged in unlawful activity. Elders, supra, 192 N.J. at 247; State v. Pineiro, 181 N.J. 13, 21-22 (2004). Reasonable suspicion has been described as "a particularized and objective basis for suspecting the person stopped of criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996)).

If the police were justified in detaining defendant in his car while they investigated, they could constitutionally order him to step out of the car. Pennsylvania v. Mimms, 434 U.S. 106, 111 and n.6, 98 S. Ct. 330, 333 and n.6, 54 L. Ed. 2d 331, 337 and n.6 (1977); State v. Smith, 134 N.J. 599, 611 (1994). Even if defendant were to be treated as a passenger, with greater rights under our State constitutional law, because the car was already stopped in a driveway, the police "need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car." Smith, supra, 134 N.J. at 618; see also State v. Mai, ___ N.J. ___, ___ (2010) (slip op. at 22-23).

Here, the officers were investigating a report of a disturbance late at night. Cf. State v. Nishina, 175 N.J. 502, 510-14 (2003) (police had reasonable suspicion to investigate unusual presence of defendant and others on school grounds at night). When they arrived, defendant's brother-in-law told them that defendant had drugs and was drunk and "looking for trouble." The engine of the car parked in the driveway was running. The officers were justified in telling defendant to step out of the car so they could question him about the accusations and his unwelcome presence.

Because of our conclusion that the police had reasonable, articulable suspicion to detain and question defendant, we need not address the State's alternative argument that the police were engaged in their community caretaking function when they questioned defendant. See State v. Martinez, 260 N.J. Super. 75, 77-78 (App. Div. 1992); State v. Goetaski, 209 N.J. Super. 362, 365-66 (App. Div.), certif. denied, 104 N.J. 458 (1986).

We also conclude that Officer Grune's smelling of marijuana as he retrieved the ignition key provided probable cause for the warrantless search of the interior of defendant's car. See, e.g., Nishina, supra, 175 N.J. at 515-16; State v. Guerra, 93 N.J. 146, 150-51 (1983); State v. Vanderveer, 285 N.J. Super. 475, 479 (App. Div. 1995); State v. Judge, 275 N.J. Super. 194, 203 (App. Div. 1994); State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 97, 70 L. Ed. 2d 88 (1981).

We reject defendant's argument that the search of his car was constitutionally impermissible because the officer smelled marijuana only after entering his vehicle without a warrant. Once defendant was arrested on probable cause of DWI, the police were required to secure his vehicle. Entering the interior for the purpose of removing the ignition key was part of the police's community caretaking duties. See Cady v. Dombrowski, 413 U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706, 713-18 (1973); State v. Mangold, 82 N.J. 575, 581-82 (1980). There was no constitutional violation in the brief police entry into the vehicle for that purpose.

III.

Relying on the testimony of the defense expert, Aramini, defendant asserts that the field sobriety tests did not produce valid evidence of intoxication because defendant's back hurt. He argues the officer "should have acted with caution when he was notified of the back problem and re-administered a new set of field sobriety tests to the defendant just to be safe." Defendant contends the State failed to act in accordance with "proper procedure" by failing to ask if defendant had any physical impairments before administering the field sobriety tests.

Defendant cites no authority to support this argument that the police are routinely required to inquire about pains and ailments of motorists before administrating field sobriety tests and we reject defendant's invitation to reach such a holding. The "common sense" that defendant's expert cited as authority leads us to conclude that the police should inquire if evidence is present that the motorist has a physical impairment affecting his ability to perform the field tests. Otherwise, without defendant having complained of physical inability to perform the tests, and without visible evidence of impairment, the police had no routine duty to inquire about defendant's medical condition before administering the tests. Defendant produced no evidence that he in fact suffered from a back injury, and his statement at police headquarters that his back "hurt a little bit" did not warrant a finding that he was physically unable to perform the field sobriety tests.

The State properly relied upon testimony regarding defendant's inability to perform field sobriety tests to prove he was under the influence of alcohol. See State v. Johnson, 42 N.J. 146, 166 (1964); State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002). In addition, the police and the court relied on other observational evidence of defendant's intoxication, such as his bloodshot and glassy eyes, slow movements, admission to drinking that night, the strong odor of alcohol on his breath, and his swaying while the officer was speaking to him. "[B]ecause sobriety and intoxication are matters of common observation and knowledge, New Jersey has permitted the use of lay opinion testimony to establish intoxication." State v. Bealor, 187 N.J. 574, 585 (2006).

In sum, we conclude the Law Division did not err in finding the field sobriety tests reliable and in admitting testimony about defendant's performance of those tests as evidence of his intoxication.

IV.

Defendant argues that the State did not prove all the essential elements of a DWI offense because there was no evidence of his operation of the motor vehicle, as required by N.J.S.A. 39:4-50(a). We disagree.

N.J.S.A. 39:4-50(a) pertains to "a person who operates a vehicle while under the influence of intoxicating liquor" or a drug. The word "operates" has been interpreted broadly. State v. Mulcahy, 107 N.J. 467, 478 (1987); 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. Ebert, 377 N.J. Super. 1, 10-11 (App. Div. 2005). "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).

In Mulcahy, supra, 107 N.J. at 470, the police observed defendant stagger out of a bar, enter his car, place himself behind the driver's wheel, and attempt to place a key into the ignition. An officer reached into the car and took the keys from the defendant's hand before he started the car. The Supreme Court noted that "when 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." Id. at 479; see also State v. Wright, 107 N.J. 488, 491 n.1 (1987) ("One can be an 'operator' without driving.").

On the other hand, in State v. Daly, 64 N.J. 122, 125 (1973), the case upon which defendant principally relies, the State failed to prove operation of the motor vehicle. The police found the defendant at 3:20 a.m. sitting in a car in a tavern parking lot with the motor running. The defendant asserted he had no intention of driving until he became sober. The bar had closed more than an hour earlier, and defendant claimed the engine was running only to keep him warm on a cold night in February. The Court held the evidence was insufficient to infer beyond a reasonable doubt that defendant had the intent to drive while intoxicated. Id. at 124-25.

In this case, defendant argues that his car engine was running only to keep the air conditioning working on a warm summer's night. Whether that assertion is true or not, the Law Division found enough circumstantial evidence to conclude that defendant had recently driven to the location where the police confronted him and that he intended to drive away.

The scope of appellate review is limited to determining whether the record contains sufficient credible evidence to support the findings of the Law Division. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). We must "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 161). "Moreover, when the Municipal Court and the Superior Court 'have entered concurrent judgments on purely factual issues,' we will not disturb those findings 'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474). This court is obliged, as was the Law Division, to defer to the municipal court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Defendant contends that, under Daly, supra, 64 N.J. 122, the facts that he was in the driver's seat and the engine was running were insufficient evidence of intent to operate the vehicle. Unlike Daly, however, defendant was awake when the officers arrived, and he was in the midst of an argument with his brother-in-law. He told the officers he had drinks at a bar named Lace, had a fight with his wife, and ended up at his brother-in-law's home. The record contained sufficient evidence to conclude beyond a reasonable doubt that defendant had driven to the location where the police found him. There was no evidence that defendant arrived in some manner other than his own driving.

Furthermore, the running engine and the totality of other circumstances permitted a reasonable inference that defendant's arrival had occurred recently. The court could reasonably conclude from all the evidence that defendant had driven the car to his brother-in-law's residence at a time when he was under the influence of alcohol.

V.

As an alternative ground for affirming defendant's conviction, we also conclude that the Law Division erred in suppressing the Alcotest results.

The Law Division held the police did not comply with the procedural requirements for administering the Alcotest as established in Chun, supra, 194 N.J. 54. The Law Division said:

[T]he operator failed to observe Defendant for the required twenty minutes.

. . . .

Officer Grune stated that a total of twenty-seven (27) minutes passed between the time of Defendant's arrest and when the first breath sample was taken. During this time, Officer Clements, the Alcotest operator, was not 'observing' Defendant. The operator was engaged in other activities including preparing the machine and counting the money Defendant had on his person, totaling $16,237.00, the latter of which would require a degree of concentration. As such, there is no proof that Defendant was observed closely by the Alcotest operator for the required twenty minutes prior to administering the test.

Because the Law Division's conclusion rested solely on its interpretation of Chun, our scope of review does not require that we afford special deference. State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009). A "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" on appeal. Manalapan Realty v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995).

In Chun, supra, 194 N.J. at 134, the Court held that the Alcotest 7110 breath testing unit was scientifically reliable if: (1) the operator was qualified to perform the test, (2) the Alcotest functioned properly on the day of the test, and (3) the operator properly operated the Alcotest machine. Among other procedural requirements, the Court explained that:

[T]he operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

[Id. at 79.]

The Court did not say that the Alcotest operator may not engage in any other activity while observing the subject for the requisite twenty minutes.

Recently in Ugrovics, supra, 410 N.J. Super. at 484-85, we held that the Alcotest operator was not the only witness who could satisfy compliance with the procedural requirement of twenty minutes of observation. We noted that the "essence" of Chun's requirement "is to ensure that the test subject has been continuously observed during this critical twenty-minute window of time." Id. at 485. "[T]he State is only required to establish that the test subject did not ingest, regurgitate or place anything in his or her mouth that may compromise the reliability of the test results for a period of at least twenty minutes prior to the administration of the Alcotest." Id. at 484-85. The "State can meet this burden by calling any competent witness who can so attest." Id. at 485.

We also said, "To construe the twenty-minute observation requirement as bestowing upon the operator the exclusive responsibility to monitor the test subject elevates form over substance and places an importance on the operator that is inconsistent with what the Chun Court envisioned to be his or her diminished role." Id. at 490.

We also agree with conclusions stated in State v. Filson, 409 N.J. Super. 246, 258, 261 (Law Div. 2009), that:

While Chun requires a twenty-minute observation, the observation need not consist only of eye-to-eye contact. This conclusion finds support in the Chun decision's plain language, and the Court's apparent intent. On the other hand, the observer must be attentive, trained, and close enough to the subject to perceive through other senses a tainting event if one occurs.

. . . .

An officer's observation should be of the sort capable of detecting contamination if it actually occurred. Thus, an officer who looks away must be close enough to detect contamination through aural or olfactory senses.

Here, both Officers Clements and Grune testified that they were in the processing room with defendant for the entire twenty-minute period before breath samples were taken. They were aware of the purpose of the waiting period to assure that the breath sample was not tainted by the types of events described. They did not observe defendant doing anything that would have affected the Alcotest results. Because the only evidence in the record supports a conclusion that two officers were present with defendant during the observational time requirement, that they were attentive to defendant's conduct, and that they did not observe any events that might taint the results, the State met its burden of proving the reliability of the procedures used to administer the Alcotest. Its results were admissible.

Defendant argues that the double jeopardy clauses of the federal and State constitutions, U.S. Const. Amend. V., and N.J. Const. art. I, par. 11, nevertheless bar the State's cross-appeal because the Law Division found him not guilty of DWI by means of the Alcotest. We conclude that double jeopardy prohibitions do not apply to the circumstances here.

The guarantee against double jeopardy "has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 665 (1969) (footnotes omitted); accord United States v. DiFrancesco, 449 U.S. 117, 129, 101 S. Ct. 426, 433, 66 L. Ed. 2d 328, 340 (1980). The government may not appeal an acquittal after trial. United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 1195, 41 L. Ed. 300, 303 (1896). If "the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged[,]" the government may not appeal. State v. Widmaier, 157 N.J. 475, 490 (1999) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354-55, 51 L. Ed. 2d 642, 651 (1977)).

In the circumstances of the DWI conviction in this case, the offense was the same, whether proven by observational evidence or blood alcohol content determined by an Alcotest. See State v. Kashi, 180 N.J. 45, 48 (2004). The Law Division's ruling suppressing the Alcotest results but convicting defendant based on observational evidence made no difference in defendant's charge or potential sentence. The conviction was at least defendant's second, and so, the applicable sentencing provisions did not differentiate between BAC level of more than .10% and conviction without proof of BAC. See N.J.S.A. 39:4-50(a).

Because defendant was found guilty of the same underlying DWI offense and the State's appeal did not "subject defendant to . . . the possibility of conviction of . . . an offense carrying a higher penalty," the State's appeal does not violate defendant's right against double jeopardy. Kashi, supra, 180 N.J. at 48.

VI.

We reject defendant's arguments on appeal and affirm his convictions for DWI and possession of marijuana. We reverse the Law Division's ruling that the Alcotest result was inadmissible and conclude that defendant's conviction for DWI was also proven by the results of the Alcotest.

 
Reversed in part. Conviction and sentence affirmed.

The Law Division ultimately found this evidence was inadmis-sible because the State did not prove that defendant knew he had a right to refuse the officer's request. See State v. Johnson, 68 N.J. 349, 353-54 (1975).

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

Since defendant was already stopped in a driveway before the police arrived, the circumstances were not strictly speaking a motor vehicle stop. Whether the police actions are described as a motor vehicle stop or a police encounter and investigative detention in a place where the police had a right to be, see State v. Nikola, 359 N.J. Super. 573, 583 (App. Div.), certif. denied, 178 N.J. 30 (2003), they were subject to the same constitutional standard of justification. Compare Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979) (articulable and reasonable suspicion of violation of law required for motor vehicle stop), and State v. Locurto, 157 N.J. 463, 470 (1999) (same), with Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362 (1979) (reasonable and articulable showing of criminal activity required to justify police detention and questioning of individual in a public place), and Pineiro, supra, 181 N.J. at 20-21 (same).

Defendant did not raise an issue, and the courts below did not address, whether a showing of exigent circumstances was necessary to dispense with the warrant requirement once Officer Grune had probable cause to search the car because he smelled marijuana in the interior. See State v. Pena-Flores, 198 N.J. 6, 28-29 (2009).

Because we conclude the record contained evidence beyond a reasonable doubt of recent operation, we need not address whether there was sufficient circumstantial evidence of defendant's intent to drive away before he regained sobriety, as for example, in State v. Sweeney, 77 N.J. Super. 512, 521 (App. Div. 1962), aff'd, 40 N.J. 359 (1963).

We reject without discussion, Rule 2:11-3(e)(1)(E), defendant's argument that the implied consent law regarding providing breath samples, N.J.S.A. 39:4-50.2(a), did not apply to him because he was on private property when confronted by the police. See State v. Garbin, 325 N.J. Super. 521 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000); State v. McColley, 157 N.J. Super. 525 (App. Div. 1978); State v. Magner, 151 N.J. Super. 451 (App. Div. 1977).

(continued)

(continued)

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A-4169-08T4

June 23, 2010