STATE OF NEW JERSEY v. JOSEPH LANGENSTEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4295-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSEPH LANGENSTEIN,

Defendant-Appellant.

__________________________________

December 27, 2010

Submitted: December 15, 2010 - Decided:

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 004-01-10.

Joseph G. Monaghan, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his motion to suppress in the municipal court, defendant Joseph Langenstein pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant filed an appeal in the Law Division of Superior Court. He appeals from the April 28, 2010 order, entered following de novo review, denying his motion to suppress.

At approximately 7:30 p.m., on April 29, 2009, a black Chevrolet Blazer was headed southbound on Windsor Road away from Bergenfield. An eyewitness noticed the vehicle come around a curve in the road and flip over four or five times, rolling across the northbound lane. The road was dry.

Sergeant Finley, who was one of the road supervisors from the Teaneck Police Department that evening, responded to the accident. When emergency personnel removed the driver from the vehicle and placed him on a backboard, Sgt. Finley identified him. Finley testified that the vehicle's driver was defendant, and he recognized defendant because he knew him since defendant was a young boy. Out of concern for his family friend, Finley followed the ambulance to Hackensack Medical Center and attempted to contact defendant's parents en route. At that time, defendant was not under investigation; Finley followed him to the hospital out of care.

When he arrived at the emergency room, the ambulance personnel told him that "they could smell an odor of an alcohol" on defendant's person. While the emergency room doctor was examining defendant, Finley overheard him say "I have a 24-year-old male [who] appears to be -- has -- has been drinking." Finley contacted police headquarters and requested two gray-top vials so that he could acquire blood evidence from defendant. Once the vials arrived, Finley requested a blood sample be taken from defendant. He then "witnessed the extraction and preparation of the blood by the phlebotomist." Finley testified that he did not make any observations regarding defendant's ability to walk, his speech, his demeanor, his actions, his eyes, or the presence of an odor of alcoholic beverage on his breath. At no point prior to the blood sample procedure did Finley form an opinion as to whether defendant had been driving while intoxicated. Finley did not place defendant under arrest at any point prior to the blood withdrawal. However, Finley was aware of the seriousness of the accident, including the fact that it took place in the daylight when the roads were not wet or slippery.

On appeal, defendant raises the following argument:

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE UNLAWFUL TAKING OF DEFENDANT'S BLOOD AND THE BLOOD TEST RESULT SHOULD BE SUPPRESSED.

Under the Fourth Amendment of the United States Constitution and Article I, paragraph seven of the New Jersey Constitution, "a search or an arrest by the police must be reasonable, measured in objective terms by examining the totality of the circumstances." State v. Ravotto, 169 N.J. 227, 235 (2001). Generally, the search or seizure must either be based upon a warrant or fall under one of the recognized exceptions to a warrant. Ibid. In Ravotto, the Supreme Court recognized that an exception to the warrant requirement exists to take a suspect's blood in a medically reasonable manner where there is probable cause to believe that that person committed a DWI offense and exigent circumstances justified the seizure. Id. at 250.

"Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1890 (1949) (alterations in original) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925)).

The record demonstrates that Finley had probable cause to believe that defendant had driven a motor vehicle while intoxicated contrary to N.J.S.A. 39:4-50. The trial judge concluded similarly, and based this conclusion on the serious nature of the accident, the smell of alcohol, and the doctor's statement that his patient had been drinking.

It is of no consequence that Finley did not initially suspect that defendant might have been drinking. The standard for probable cause is one of objective reasonableness; it is not a subjective standard. See State v. Bruzzese, 94 N.J. 210, 219 (1983) ("[T]he proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent."), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). A reasonable officer in Finley's position would be able to conclude, based on the information he obtained, that the offense of DWI had been committed.

Moreover, the fact that defendant was arrested after his blood was drawn is not relevant. In State v. O'Loughlin, 270 N.J. Super. 472, 489 n.5 (App. Div. 1994), this court stated:

Although probable cause to arrest is clearly mandated by Schmerber v. California, supra, 384 U.S. [757,] at 770, 86 S. Ct. [1826,] at 1835, 16 L. Ed 2d [908,] at 919 [(1966)], we do not agree that the arrest before or substantially contemporaneous to the search is mandated by Schmerber since it was not deemed a dispositive factor in State v. Dyal, 97 N.J. 229 (1984).

Finally, the possibility that the evidence would dissipate created an exigency that served to dispense with the warrant requirement. Ravotto, supra, 169 N.J. at 250; see also Schmerber, supra, 384 U.S. at 770-71, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920 ("We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.").

Here, the record contains substantial credible evidence to support the legal conclusion that Finley had probable cause to believe defendant had driven while intoxicated. Judge Roma properly denied defendant's motion to suppress.

Affirmed.