STATE OF NEW JERSEY v. ROBERT S. SZAMBEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5240-08T45240-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT S. SZAMBEL,

Defendant-Appellant.

__________________________________

Argued May 19, 2010 - Decided June 23, 2010

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Municipal Appeal No. 08-09.

David J. Foley, III, argued the cause for appellant.

Thomas Cannavo, Senior Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Mr. Cannavo, of counsel and on the brief).

PER CURIAM

Following denial of his two suppression motions, defendant entered a conditional plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. An additional offense charging defendant with refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4a, was dismissed. Defendant was sentenced to thirty days of community service, a two-year loss of his driver's license and registration privilege, and forty-eight hours attendance at an Intoxicated Driver's Resource Center. Fines and penalties were also imposed. The court stayed defendant's sentence pending a de novo appeal to the Law Division.

Following a de novo review of the record, the Law Division judge found that the State proved defendant was operating a vehicle at the time he was arrested for DWI. The court also found the arresting officer did not violate defendant's Miranda rights by questioning him about the circumstances of the motor vehicle accident involving defendant and another motorist who left the scene of the accident. Finally, the Law Division judge was equally satisfied that the State proved that there was probable cause to arrest defendant for DWI. The Law Division judge sentenced defendant, imposing the same sentence previously imposed by the municipal court judge. The present appeal followed.

On appeal, defendant contends:

POINT I

THE STATE CANNOT MAKE A PRIMA FACI[E] SHOWING OF OPERATION - A NECESSARY ELEMENT OF PROOF IN [N.J.S.A.] 39:4-50.

POINT II

ANY STATEMENT REGARDING OPERATION SHOULD HAVE BEEN SUPPRESSED.

POINT III

THE OFFICER LACKED PROBABLE CAUSE TO ARREST [DEFENDANT].

We have carefully considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Francis R. Hodgson, Jr., J.S.C., in his June 19, 2009 oral opinion. We add the following brief comments.

On August 24, 2008, Seaside Park Police Officer Carl DelConte was called to the scene of an accident at the intersection of Central and I Streets. Upon his arrival, the officer observed an individual, later identified as defendant, standing, alongside another person, outside of a vehicle that was parked in the center median of the roadway. When the officer first approached, he observed that defendant had bloodshot eyes and a flushed face. The officer inquired of defendant what happened, but defendant initially did not respond. The officer then spoke to the other individual, who told the officer what happened. The officer again spoke with defendant, who indicated that he had been driving. As defendant was speaking, the officer detected an odor of alcohol. He then asked defendant whether he had been drinking, to which there was no response. The officer then directed defendant to perform certain "physical" field sobriety tests. After defendant refused to comply with the officer's direction, stating that he could not perform the tests, the officer arrested defendant for DWI and transported him to the police station.

Judge Hodgson rejected defendant's argument that there was no proof of operation, finding that defendant admitted that he was operating the motor vehicle. Additionally, the judge found that there was circumstantial evidence of operation based upon the location of the vehicle on the median.

Likewise, the judge reasoned that the circumstances surrounding the officer's questioning of defendant were not violative of defendant's constitutional rights and no Miranda warnings were necessary. The court found that the questions were routine and aimed at learning the circumstances surrounding the accident for which Miranda warnings were not implicated. We agree.

It is well settled that police are not required to administer Miranda warnings every time they investigate a motor vehicle accident. In Berkemer v. McCarty, 468 U.S. 420, 435-42, 104 S. Ct. 3138, 3147-52, 82 L. Ed. 2d 317, 331-36 (1984), the United States Supreme Court held, as Judge Hodgson recognized, that detention and questioning of a motorist during the course of a routine traffic stop does not constitute custodial interrogation requiring the administration of Miranda warnings. In finding that such questioning is not sufficiently coercive to implicate the need to administer Miranda warnings, the Supreme Court noted that the "detention of a motorist pursuant to a traffic [accident] is presumptively temporary and brief" and thus different from a station house interrogation. Berkemer, supra, 468 U.S. at 437, 104 S. Ct. at 3149, 82 L. Ed. 2d at 333.

Our state courts have adhered to the Berkemer reasoning in determining whether there is a need to administer Miranda warnings during the course of a routine traffic matter. In State v. Baum, 393 N.J. Super. 275, 291 (App. Div. 2007), aff'd as mod. on other grounds, 199 N.J. 407 (2009), we found that despite the fact that the driver was isolated from the other passengers and subjected to questioning that included specific questions about whether there were drugs in the vehicle, he had not been subjected to a custodial interrogation requiring Miranda warnings under the totality of the circumstances that existed at that time. See also State v. Hickman, 335 N.J. Super. 623, 631 (App. Div. 2000) ("Roadside questioning of a motorist is not transformed into 'custodial interrogation' that must be preceded by Miranda warnings simply because a police officer's questioning is accusatory in nature or designed to elicit incriminating evidence.").

Here, defendant was not told that he was under arrest. He was not handcuffed. He, along with the passenger, was found standing alongside an obviously damaged vehicle parked in the median of the roadway. The investigating officer was well within his authority to make inquiries of defendant about the accident. "Treatment of this sort cannot fairly be characterized as the functional equivalent of [a] formal arrest." Berkemer, supra, 468 U.S. at 442, 104 S. Ct. at 3151, 82 L. Ed. 2d at 336.

 
Affirmed.

Although the summons references "refusal," the wrong statute is cited. N.J.S.A. 39:4-50.2, as set forth on the summons, refers to consent for breath samples.

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

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A-5240-08T4