STATE OF NEW JERSEY v. JAMES BASSFORD

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4222-08T44222-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BASSFORD,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 1, 2010 - Decided

Before Judges Lisa and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 29-08.

Louis A. Ippolito, Jr., attorney for appellant.

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, James R. Bassford, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of driving while intoxicated, N.J.S.A. 39:4-50(a). Defendant was sentenced to a $250 fine, $33 costs, $50 VCCB penalty, $200 DWI penalty, $75 Safe Neighborhood Fund, $6 surcharge, twelve hours Intoxicated Driver Resource Center, and seven month driver's license suspension.

Defendant initially moved in the municipal court to suppress evidence of the Alcotest results because the State would not be able to prove operation. Defendant did not dispute that the Alcotest device was in good working order and that the test was properly administered by a qualified operator. Nor did defendant dispute that when the police officer came into contact with defendant in his stationary automobile, defendant was indeed intoxicated. It was defendant's contention that, although he conceded that he drove his vehicle to the location where the officer came into contact with him, the State could not prove that at the time he drove the vehicle he was intoxicated, nor could the State prove how long he had been at that stationary location prior to the arrival of the officer. Therefore, defendant's theory in seeking to suppress the Alcotest result was that the State could not prove that the test was administered within a reasonable time after operation. See State v. Tischio, 107 N.J. 504, 506 (1987).

To resolve the motion, the municipal court judge conducted an evidentiary hearing limited solely to the issue of intoxication. The only witness was Branchburg police officer Steven Cronce. There is no dispute as to Cronce's credibility. Indeed, defendant states in his appellate brief that Cronce's testimony, "in toto, is accurate." We now summarize Cronce's testimony, which in turn, provides the evidentiary basis for the determination regarding operation.

While on patrol at about 2:15 a.m. on January 29, 2008, Cronce observed a vehicle in a stationary position about thirty feet off the southbound lane of Route 202. The headlights and rear brake lights were on, the engine was running, and the windshield wipers were on (although it was not raining). Cronce approached the vehicle and saw defendant slumped over the steering wheel. He observed that the car was in gear (although he later acknowledged that he could not tell specifically which gear it was in, only that it was not in the "park" position).

Cronce banged on the window several times. Defendant, who had apparently been asleep, woke up and unlocked and opened his door. Cronce instructed him to put the vehicle in park, which defendant did. As instructed, defendant produced his driving credentials. When Cronce asked defendant if he knew where he was he said, "I don't have a clue." Defendant exhibited slurred speech and bloodshot eyes. He admitted to having a few mixed drinks at a bar in Morristown. He said he left the bar and was on his way to his girlfriend's house. Based upon Cronce's observations at the scene, and defendant's poor performance on roadside tests, defendant was placed under arrest for driving while intoxicated. While being transported to the stationhouse, defendant said, "I knew I shouldn't have drove drunk."

Based upon this evidence, the municipal court judge found that the State proved beyond a reasonable doubt that defendant operated his vehicle and therefore denied the motion to suppress the Alcotest reading. Defendant then entered a conditional plea of guilty, reserving the right to appeal to the Law Division the denial of the suppression motion. Defendant did so, and the Law Division judge, based upon his independent review of the municipal court record, also found that the State proved operation. Therefore, he also denied the suppression motion. He imposed the same sentence as that which had been imposed by the municipal court judge. This appeal followed.

It is well settled that for purposes of our driving while intoxicated law, the term "operation" is broader than the term "driving." State v. Mulcahy, 107 N.J. 467, 478-81 (1987). And, of course, N.J.S.A. 39:4-50(a) prohibits "operation" while intoxicated. An individual in the driver's seat of a stationary vehicle with the engine running is deemed to be operating the vehicle if the evidence supports an inference that the individual intended to move the vehicle. State v. Sweeney, 40 N.J. 359, 360-61 (1963). If no such intent can be found, there is no operation. State v. Daly, 64 N.J. 122, 125 (1973). Therefore, a proper analysis requires consideration of all of the surrounding circumstances to determine whether the individual behind the wheel had the present intention of moving the vehicle.

The circumstances here clearly support such an inference. Defendant admitted that he was on his way to his girlfriend's house. In addition to the engine being on, the car was in gear (or at least out of park). Defendant admits that he drove to the location where he was found by Cronce. His location along a roadway, enroute to his intended destination, while sitting behind the wheel with the car in gear, was sufficient to establish the intent to operate. See State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974).

Therefore, not only did the State prove operation, but it proved that the time of operation was 2:15 a.m., when Cronce came into contact with defendant. Accordingly, defendant's argument that the Alcotest reading should have been suppressed because the State could not establish time of operation, and therefore could not establish that the test was administered within a reasonable time after operation, was properly rejected.

Alternatively, the State argues that it could prove time of operation under a different theory. The State contends that the facts and circumstances lead to a reasonable inference that defendant had driven to the location where he was found shortly before Cronce observed him. We need not decide this issue in light of our determination thus far. However, the State's theory is meritorious. Defendant admits that he drove from the bar to the location where he was found. The defense argues that, for all anyone knows, defendant could have been sitting at that location for four or five hours before Cronce happened by. It strains credulity to suggest that defendant remained in that stationary position for an extended period of time with the engine running and the transmission in a gear other than park.

The hearing in the Law Division was conducted on March 12, 2009. The judgment of conviction was entered by the Law Division judge on April 8, 2009. There is no mention either in the March 12, 2009 transcript or the April 8, 2009 judgment of a stay of defendant's sentence pending appeal. However, in his appellate brief, defendant states that the Law Division judge entered an order on May 5, 2009 staying the sentence pending appeal. No such order has been furnished to us. If a stay was entered, it is vacated effective immediately.

 
Affirmed.

(continued)

(continued)

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A-4222-08T4

March 23, 2010