STATE OF NEW JERSEY v. REYNOLD REGIS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6142-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REYNOLD REGIS,
Defendant-Appellant.
________________________________
Argued: March 24, 2010 Decided: September 8, 2010
Before Judges Cuff and C.L. Miniman.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Municipal Appeal No. 2009-02.
Carmine D. Campanile argued the cause for
appellant.
Jennifer C. Fetterman, Assistant Prosecutor,
argued the cause for respondent (Robert D.
Laurino, Acting Essex County Prosecutor,
attorney; Ms. Fetterman, of counsel and on
the brief).
PER CURIAM
Defendant Reynold Regis appeals his conviction on July 6,
2009, of driving under the influence of a controlled dangerous
substance (CDS), contrary to N.J.S.A. 39:4-50, and failure to
maintain a lane, contrary to N.J.S.A. 39:4-88(b). We affirm in
part and reverse in part.
I.
On August 4, 2008, at about 8:06 p.m., defendant was
traveling in the right-hand lane of Route 280 in Roseland when
he was stopped by a New Jersey State Trooper. Trooper Dennis
Cappello was on patrol at that location and observed defendant's
vehicle swerve over the fog line onto the shoulder two or three
times. The trooper stopped the vehicle and approached the
driver's side. He immediately detected an odor of burnt
marijuana and asked defendant for his driving credentials.
Defendant complied with this request.
Trooper Cappello noticed that defendant's eyes were
bloodshot and watery and that he appeared extremely nervous.
The trooper observed a female passenger in the vehicle,
defendant's girlfriend Camilla Reynolds, and asked defendant why
he smelled marijuana. Defendant replied, "I'm just driving with
my girlfriend." Considering the answer unresponsive, the
trooper asked defendant to exit the vehicle. The trooper again
asked defendant about the marijuana, and he replied that
possibly his girlfriend smoked marijuana in the car earlier that
day. The trooper observed defendant swaying when he walked,
using his arms for balance while standing, and fumbling with his
hands. The officer directed defendant to the front of his
vehicle, and the trooper administered two field sobriety tests:
A-6142-08T4
2
the walk-and-turn test and the one-legged-stand test. Defendant
failed to properly perform both tests, although this was only
partially recorded on the trooper's video camera because the
test was conducted in front of defendant's car.
Defendant was then placed under arrest for driving while
intoxicated (DWI). The trooper admitted that he did not
administer the horizontal-gaze nystagmus test to defendant
because that was only used for alcohol intoxication. Having
arrested defendant, the trooper searched him but found no CDS.
The passenger was asked to exit the vehicle, and she was then
searched with similar results. A subsequent search of the
vehicle's center console revealed a small baggie of marijuana.
Defendant and his girlfriend both denied ownership of it and
were both arrested.
After administering Miranda1 rights, the trooper transported
defendant to the Totowa State Police substation. Defendant then
underwent an alcohol breath test, which resulted in a zero
reading. He gave a urine sample, which was secured by the
trooper and marked as evidence No. 020806. The suspected CDS
was also bagged and tagged under No. A020805. Defendant was
released to his mother at 10:00 p.m.
1
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
A-6142-08T4
3
At trial, in addition to the testimony of Trooper Cappello,
the State called Michael Baklarz, a forensic scientist whose job
is to analyze blood and urine for the presence of alcohol and
drugs. Baklarz testified that the urine he tested was positive
for marijuana metabolites. However, no quantitative analysis of
the sample was made.
The State also called Maria Fazio Zanakis, a forensic
science expert, who analyzed the vegetation contained in the
plastic bag. She could not testify as to how the sample was
received in her laboratory, but was familiar with the receipt of
samples generally. She testified that the sample she analyzed
weighed .53 grams and, based on a microscopic test and a color
test, identified the sample as marijuana.
Defendant called his passenger, Camilla Reynolds, as his
sole witness. She testified that the marijuana found in the
vehicle belonged to her; defendant had no knowledge of it being
in the vehicle; she had accepted responsibility for it; and she
had pleaded guilty to a possession charge in juvenile court. At
the conclusion of the case, the Roseland Municipal Court judge
found defendant not guilty of possession of CDS but guilty of
driving while intoxicated and failure to maintain a lane.
Defendant appealed his conviction and sentence to the Law
Division.
A-6142-08T4
4
The Law Division judge who heard the case "affirmed" the
judgment of the municipal court on both offenses and imposed the
same penalties imposed by the municipal court. This sentence
was stayed for forty-five days to permit defendant to file an
appeal. This appeal followed.
II.
Defendant raises the following issues for our consideration:
POINT I - THE LAW DIVISION JUDGE ERRED BY
FAILING TO PROPERLY REVIEW THE CASE DE NOVO;
THEREFORE, AFFIRMANCE OF THE DECISION OF THE
MUNICIPAL COURT JUDGE WARRANTS REVERSAL BY
THIS COURT.
POINT II - THE STATE FAILED TO PROVE A
VIOLATION OF N.J.S.A. 39:4-50 AS IT FAILED
TO SHOW, BEYOND A REASONABLE DOUBT, THAT
REGIS WAS UNDER THE INFLUENCE OF DRUGS.
POINT III - THE STATE FAILED TO ESTABLISH A
PROPER CHAIN OF EVIDENCE WARRANTING
EXCLUSION OF THE EXPERT TESTIMONY AND
REVERSAL OF REGIS' CONVICTION.
POINT IV - THE STATE FAILED TO PROVE BEYOND
A REASONABLE DOUBT THAT REGIS VIOLATED
N.J.S.A. 39:4-88b.
We find no merit to defendant's first point on appeal. The
Law Division judge clearly found the facts de novo from the
transcript of the municipal court hearing. He did not read the
municipal judge's decision into the record. Rather, he made his
own findings of fact, citing the transcript for each fact he
A-6142-08T4
5
found. Many of the facts he found were not mentioned in the
municipal court judge's decision. Thereafter, he said:
As to discussion, the State and the
appellant agree the appellant is permitted a
de novo review of the record from [the]
lower court pursuant to [Rule] 3:23-8(a).
De novo consideration requires [the]
reviewing judge to determine the case
completely anew on the record made below
before the trial judge, giving due, although
not controlling regard to the opportunity of
the judge to judge the credibility of the
witnesses. See State versus Cerefice, 335
N.J. Super. 374, at 382 (App. Div. 2000).
The reviewing court must determine, "whether
the findings made could reasonably have been
reached on sufficient credible evidence
present in the record." Citing State versus
Johnson,
42 N.J. 146 at 157 (1964).
The Law Division judge then reviewed the parties'
respective positions on the evidence and applicable law, and
drew his own conclusions of law. He found that "the State
proved beyond a reasonable doubt the appellant operated a motor
vehicle under the influence of drugs in violation of N.J.S.A.
39:4-50" and explained how he reached that conclusion, relying
on State v. Bealor,
187 N.J. 574 (2006).
As to the failure to maintain a lane, the Law Division
judge reviewed the arguments advanced by defendant and the
State. He determined that defendant was incorrect in claiming
that his driving posed no danger to other vehicles. He examined
both parts of N.J.S.A. 39:4-88 and determined that the second
A-6142-08T4
6
prong only applied "when the driver intends to change lanes in
the course of travel," citing State v. Woodruff,
403 N.J. Super.
620 (Law Div. 2008). He then independently found the facts
relevant to this charge and concluded that the State had proven
the first prong beyond a reasonable doubt.
Defendant's claim of error rests upon the language employed
by the judge at the end of his decision and in the order he
entered thereafter: "For the reasons stated herein, I find as a
fact as I've made them here affirmed the findings of fact made
by Judge Connell in the Municipal Court. And therefore, the
actions of the municipal court are affirmed." The order was to
similar effect.
The Law Division should not have cited Johnson, supra,
42 N.J. at 157, for the proposition that the reviewing court
searched the record for sufficient credible evidence. The
portion of the opinion he quoted is actually found at page 162,
where there is a discussion of our scope of review of the Law
Division's de novo review. However, we are satisfied that the
judge here did not merely search the record for sufficient
credible evidence to support the municipal judge's
determination. Instead, he conducted a thorough de novo review
and found the facts independently of the municipal judge. That
State v. Kotsev,
396 N.J. Super. 58,
is all that is required.
A-6142-08T4
7
60-61 (Law Div. 2005), aff'd,
396 N.J. Super. 389 (App. Div.),
certif. denied,
193 N.J. 276 (2007).
III.
With respect to defendant's second argument, the question
in a DWI narcotics case that is to be determined
is whether the proofs adduced . . . are
sufficient to establish beyond a reasonable
doubt that, at the time of his arrest,
defendant suffered from "a substantial
deterioration or diminution of the mental
faculties or physical capabilities[,]" or
was in a drug-induced state that "so
affect[ed his] judgment or control . . . as
to make it improper for him to drive on the
highway[,]" or whether defendant was under
the effect of a drug that "so alter[ed] his
. . . normal physical coordination and
mental faculties as to render [defendant] a
danger to himself as well as to other
persons on the highway."
[Bealor, supra,
187 N.J. at 590 (quoting
State v. Tamburro, 68 N.J. 414, 421
(1975)).]
Our review is limited to determining whether there is
sufficient credible evidence present in the record to support
the findings of the Law Division judge, not the municipal judge.
Johnson, supra,
42 N.J. at 161-62. Like the Law Division, we
are not in a good position to judge credibility and should not
make new credibility findings. State v. Locurto,
157 N.J. 463,
470-71 (1999). It is "improper for the Appellate Division to
engage in an independent assessment of the evidence as if it
A-6142-08T4
8
were the court of first instance." Id. at 471. In that case,
the Court enunciated the two-court rule as follows:
Although the Law Division did not
engage in its own credibility determinations
separate and apart from the Municipal Court,
it described on the record the evidence and
testimony presented before the Municipal
Court that persuaded it to "accede" to the
Municipal Court's credibility determina-
tions. Appellate courts should defer to
trial courts' credibility findings that are
often influenced by matters such as
observations of the character and demeanor
of witnesses and common human experience
that are not transmitted by the record.
Moreover, the rule of deference is more
compelling where, as in the present case,
two lower courts have entered concurrent
judgments on purely factual issues. Under
the two-court rule, appellate courts
ordinarily should not undertake to alter
concurrent findings of facts and credibility
determinations made by two lower courts
absent a very obvious and exceptional
showing of error.
[Id. at 474 (citations omitted).]
We find no merit to defendant's claim that the answer to
the inquiry in Bealor is negative. Defendant gave an answer to
the trooper's first question that was a non sequitur; he was
swaying when he walked; he was using his arms for balance when
he was standing; his hands were fumbling; and he could not
perform the two field sobriety tests. Furthermore, he had been
observed veering off the road onto the shoulder on two or three
occasions. We find this credible evidence more than sufficient
A-6142-08T4
9
to establish beyond a reasonable doubt that defendant was
driving while under the influence of marijuana, a "narcotic,
hallucinogenic or habit-producing drug" in violation of N.J.S.A.
39:4-50. Bealor, supra,
187 N.J. at 589.
IV.
Turning to defendant's conviction for failing to maintain
his lane of travel, the statute in question provides in
pertinent part as follows:
When a roadway has been divided into
clearly marked lanes for traffic, drivers of
vehicles shall obey the following regulations:
....
b. A vehicle shall be driven as
nearly as practicable entirely within a
single lane and shall not be moved from that
lane until the driver has first ascertained
that the movement can be made with safety.
[N.J.S.A. 39:4-88(b).]
The issue in this case is whether the two clauses in subsection
(b) are independent of each other and describe two separate
offenses or whether they are dependent on each other and
describe one offense.
A.
N.J.S.A. 1:1-1 provides general instructions for judicial
construction of statutes and laws in New Jersey:
In the construction of laws and
statutes of this state, both civil and
A-6142-08T4
10
criminal, words and phrases shall be read
and construed with their context, and shall,
unless inconsistent with the manifest intent
of the legislature or unless another or
different meaning is expressly indicated, be
given their generally accepted meaning,
according to the approved usage of the
language. Technical words and phrases, and
words and phrases having special or accepted
meaning in the law, shall be construed in
accordance with such technical or special
and accepted meaning.
When we are called upon to review a statute, determining the
Legislature's intent is our paramount goal, and the language of
the statute itself is generally the best indicator of that
intent. DiProspero v. Penn,
183 N.J. 477, 492 (2005) (citing
Frugis v. Bracigliano,
177 N.J. 250, 280 (2003)). To determine
the Legislature's intent, we begin with the words of the statute
and ascribe to them their ordinary meaning. Mason v. City of
Hoboken,
196 N.J. 51, 68 (2008). We will read these words in
context with related provisions so as to give sense to the
legislation as a whole. DiProspero, supra,
183 N.J. at 492.
"It is not the function of [a reviewing court] to 'rewrite
a plainly-written enactment of the Legislature []or presume that
the Legislature intended something other than expressed by way
of the plain language.'" Ibid. (quoting O'Connell v. State,
171 N.J. 484, 488 (2002)). We "cannot 'write in an additional
qualification that the Legislature pointedly omitted in drafting
its own enactment.'" DiProspero, supra,
183 N.J. at 492
A-6142-08T4
11
(quoting Craster v. Bd. of Comm'rs,
9 N.J. 225, 230 (1952)).
Nor may we "'engage in conjecture or surmise which will
(quoting In
circumvent the plain meaning of the act.'" Ibid.
re Closing of Jamesburg High Sch.,
83 N.J. 540, 548 (1980)).
Therefore, if the meaning of those words is clear, the analysis
is complete, and we need look no further. Mason, supra,
196 N.J. at 68.
Additionally, our Supreme Court has also cautioned that
common sense should not be abandoned when a court is required to
interpret a statute:
[W]e also have stressed that "where a
literal interpretation would create a
manifestly absurd result, contrary to public
policy, the spirit of the law should
control." Turner v. First Union Nat'l Bank,
162 N.J. 75, 84 (1999) (citing Watt v. Mayor
of Franklin,
21 N.J. 274, 278 (1956)).
Thus, when a "'literal interpretation of
individual statutory terms or provisions'"
would lead to results "'inconsistent with
the overall purpose of the statute,'" that
interpretation should be rejected.
Cornblatt v. Barow,
153 N.J. 218, 242 (1998)
(quoting Young [v. Schering Corp.,] 141 N.J.
[16,] 25 [(1995)]).
[Hubbard v. Reed,
168 N.J. 387, 392-93
(2001).]
"We may also resort to extrinsic evidence if a plain
reading of the statute leads to an absurd result or if the
overall statutory scheme is at odds with the plain language."
DiProspero, supra,
183 N.J. at 493. "However, when the language
A-6142-08T4
12
used by the Legislature is susceptible to multiple
interpretations, we may consider other sources to assist us in
determining the Legislature's intent." Roberts v. State, Div.
of State Police,
191 N.J. 516, 521 (2007).
Penal statutes must be strictly construed in
favor of the accused. In criminal cases,
interpretation of a statute is restricted by
the rule of lenity which requires us to
strictly construe penal statutes in favor of
State v. D.A., 191
a criminal defendant.
N.J. 158, 164 (2007); see also Norman J.
Singer, 3 Sutherland Statutory Construction
§ 59.3, 134 (6th ed. 2001) ("The rule of
lenity should only be applied if after
reviewing all sources of legislative intent
the statute still remains ambiguous.").
Those are the legal principles that guide
our analysis.
[State v. Froland,
193 N.J. 186, 194
(2007).]
Accord State ex rel. M.T.S.,
129 N.J. 422, 431 (1992); State v.
Solarski,
374 N.J. Super. 176, 181 (App. Div. 2005). "The rule
of lenity 'has at its heart the requirement of due process. No
one shall be punished for a crime unless both that crime and its
punishment are clearly set forth in positive law.'" Froland,
supra,
193 N.J. at 201 (quoting In re Suspension of DeMarco,
83 N.J. 25, 36 (1980)).
A statute is considered penal or quasi-
criminal when it "provides for either a fine
or imprisonment, or both, upon conviction
for violation of the statute." State v.
Son,
179 N.J. Super. 549, 554 (App. Div.
1981); see also [State v.] Widmaier, 157
A-6142-08T4
13
N.J. [475,] 493 [(1999)] (noting seven
factors used to determine whether a
statutory scheme is punitive or remedial).
"[P]enal statutes that are open to more than
one reasonable construction must be
construed strictly against the State."
State v. Churchdale Leasing, Inc.,
115 N.J. 83, 102 (1989) (holding rules of statutory
construction limited cumulative punishments
under two ambiguous statutes where it was
unclear if violator should be penalized
under both provisions).
"Where the primary purpose of a statute
is expressly enforceable by fine,
imprisonment, or similar punishment the
statute is always construed as penal."
Norman J. Singer, 3 Sutherland Statutory
Construction § 59.1 (2001).
This simply means that words are
given their ordinary meaning and
that any reasonable doubt about
the meaning is decided in favor of
anyone subjected to a criminal
statute.
[Id. at § 59:3.]
We recognize that our task involves
more than simply recognizing the penal
nature of the statute and repeating the
mantra that it is, consequently, to be
strictly construed. "[E]ven when dealing
with a criminal statute, 'the goal of the
interpretive process is to ascertain the
intent of the [L]egislature. All rules of
construction are subordinate to that obvious
proposition." [State v.] Tischio, 107 N.J.
[504,] 511 [(1987)] (quoting State v. Grant,
196 N.J. Super. 470, [481] (App. Div.
1984)), [appeal dismissed,
484 U.S. 1038,
108 S. Ct. 768,
98 L. Ed. 2d 855 (1988)].
It is well recognized that "the rule of
strict construction does not mean that the
A-6142-08T4
14
manifestations of the Legislature's
intention should be disregarded." State v.
Edwards,
28 N.J. 292, 298 (1958). "While
penal and criminal statutes are to be
strictly read to avoid penalties by
construction . . . the words of the
enactment are to be accorded a rational
meaning in harmony with the obvious intent
and purpose of the law." State v. Brown, 22
N.J. 405, 415 (1956). We have stated that:
penal statutes must be strictly
construed and [that] ambiguous
language must be construed against
the State. However, even a penal
statute should not be construed to
reach a ridiculous or absurd
result. Indeed, the spirit of a
statute controls where a literal
interpretation [of a statute]
would create a manifestly absurd
result. If a literal
interpretation of a statute would
lead to a result that is
inconsistent with the overall
purpose of the statute, that
interpretation should be rejected.
[State v. Jones, 347 N.J. Super.
150, 153 (App. Div.), certif.
denied,
172 N.J. 181 (2002)
(citations omitted).]
[Solarski, supra,
374 N.J. Super. at 180-
81.]
B.
The only reported decision considering N.J.S.A. 39:4-88(b)
is the Woodruff case cited by the Law Division judge. There,
the defendant twice veered over the fog line and onto the
shoulder so that half of his truck was off the roadway.
A-6142-08T4
15
Woodruff, supra,
403 N.J. Super. at 623. The police officer
following him activated his lights to effectuate a motor vehicle
stop for violation of N.J.S.A. 39:4-88(b). Ibid. The defendant
challenged the stop on two grounds, one of which was that his
deviation from his lane of travel was not a violation of the
statute because his movement was not proved to be unsafe to
other drivers and his two deviations from his lane were not
sufficient to constitute a violation. Id. at 625.
The court concluded that "the safety element applies only
to changing lanes, not maintaining lanes." Ibid. The court
explained:
Section 88(b) imposes two requirements.
First, a driver must, as nearly as
practicable, drive within his single lane,
in other words, maintain his lane. Second,
a driver may not change lanes until he can
do so safely. The first clause of section
88(b) proscribes deviation from a lane.
Thus, it covers situations where the driver
has no intention to change lanes, or where
the driver does not or cannot change lanes.
For example, a driver can violate the first
clause when deviating from the lane of a
single-lane, one-way road, or on a single-
lane ramp to or from a highway, or when
driving in a three-lane highway, in which
two lanes are traveling against the driver.
In those cases, no lane-change is possible,
but the driver's failure to maintain a lane
is proscribed.
The second clause of section 88(b)
pertains to movements from a lane. It
requires drivers to change lanes safely.
For example, a sudden, unexpected lane
A-6142-08T4
16
change may be unsafe on a crowded roadway,
and inconsequential on a deserted one. When
the Legislature has intended to condition a
violation on the driver's impact on other
motorists, it has said so. See, e.g.,
N.J.S.A. 39:4-126 (making it a violation for
a driver to change lanes without signaling
if it might affect other motorists). On the
other hand, like the first clause of section
88(b), the Motor Vehicle Code elsewhere
requires accurate driving, as nearly as
practicable, without requiring separate
proof of a safety impact. See, e.g.,
N.J.S.A. 39:4-82 (requiring driving "as
closely as possible to the right-hand edge
or curb of the roadway, unless it is
impracticable to travel on that side of the
roadway"); N.J.S.A. 39:4-123 (driver
intending to turn right must approach in the
far right lane and make the right turn "as
close as practicable to the right hand curb
or edge of the roadway").
[Id. at 625-26.]
The court found support for its interpretation from
decisions in other states:
New Jersey's provision, like that of most
states, is based on the Uniform Vehicle
Code. See Unif. Vehicle Code § 11-309(a),
reprinted in Traffic Laws Annotated,
National Committee on Uniform Traffic Laws
and Ordinances, U.S. Dep't of Transp.
(1979). Construing a comparable provision,
the Illinois Supreme Court held that the
statute creates two separate requirements
for lane usage: first, the motorist must
drive as nearly as practicable within one
lane, and second, a motorist may not move
from one lane to another until he can do so
safely. People v. Smith,
665 N.E.2d 1215,
1218-19 (Ill. 1996). Federal and state
courts in Kansas have reached the same
conclusion. United States v. Jones, 501 F.
A-6142-08T4
17
Supp. 2d 1284, 1298 (D. Kan. 2007); State v.
Marx,
171 P.3d 276, 282-83 (Kan. Ct. App.
2007) (expressly rejecting State v. Ross,
[
149 P.3d 876 (Kan. Ct. App. 2007)]), [aff'd
in part and rev'd in part,
215 P.3d 601
(Kan. 2009)].
[Id. at 626.]
In Smith, the Supreme Court of Illinois construed the
Illinois Vehicle Code § 11-709(a). Smith, supra,
665 N.E 2d at
1218. Subsection (a) is identical to subsection (b) of N.J.S.A.
39:4-88. Without discussing any principles of statutory
construction, the Court held that "[t]he plain language of the
statute establishes two separate requirements for lane usage."
Ibid. As a consequence, the defendant violated the statute
when he crossed over a lane line "and [was] not driving as
nearly as practicable within one lane." Id. at 1219.
We need not consider the Kansas cases of Jones, supra,
501 F. Supp. 2d 1284, Marx, supra,
171 P.2d 279, and Ross, supra,
149 P.3d 876, because after Woodruff, supra,
403 N.J. Super.
620, was decided, the Kansas Supreme Court in Marx, supra,
215 P.3d 601, reviewed the decision of the Court of Appeals. The
issue on appeal required the Court to determine the elements of
a violation of Kan. Stat. Ann. § 8-1522(a) (2009), that state's
nearly identical parallel to N.J.S.A. 39:4-88(b). Marx, supra,
215 P.3d at 606.
A-6142-08T4
18
The Court observed that its first task was "to resolve the
conflict between Ross and Marx as to the conduct proscribed by
[Kan. Stat. Ann. §] 8-1522(a)." Id. at 608. It began by
examining the statutory language. Id. at 608-09. The Court
engaged in a lengthy analysis of Kan. Stat. Ann. § 8-1522, which
"was patterned after § 11-309 of the Uniform Vehicle Code,"
including an examination of case law from ten states with
similar statutes. Id. at 609-10 (citations omitted). Based on
its review of sister state law, the Court concluded that "no
clearly uniform interpretation of this provision has emerged
from our sister states that would constrain, or even guide, our
interpretation and construction of [Kan. Stat. Ann. §] 8-1522."
Id. at 610.
The Court began by "squarely address[ing] the drafters' use
of the conjunctive 'and' between the two directives as did the
[146 Cal.
California appellate court in [People v.] Butler,
Rptr. 856, 857 (Cal. App. Dep't Super. Ct. 1978)]." Ibid. The
Court noted that Butler interpreted "and" to mean "or." Ibid.
Noting the difficulty of such a declaration, the Court observed
that it had utilized such a convention in the past where the
legislature was simply imprecise in its word choice. Ibid.
It quoted 82 C.J.S. Statutes § 331 for the
(citations omitted).
proposition that "or" and "and" may be construed as
A-6142-08T4
19
interchangeable where failure to do so would render the meaning
of the statute ambiguous or result in absurdities.'" Id. at
§ 331). It found
610-11 (quoting 82 C.J.S. Statutes,
construction of Kan. Stat. Ann. § 8-1522 to be one of those
Id. at 611. The Court, therefore, engaged in an
situations.
independent analysis, ultimately concluding as follows:
[W]e interpret [Kan. Stat. Ann. §] 8-1522(a)
as establishing two separate rules of the
road. The first requires a driver to keep
entirely within a single lane while
traveling on a roadway with two or more
clearly marked lanes. That rule is
temporarily suspended when it becomes
impracticable to stay within the lane
markers and when the driver is properly
effecting a lane change. Proof that driving
outside the lane markers created no safety
hazard is not a defense to the single lane
rule. The second rule provides that before
a driver may change lanes or move from the
current lane of travel to another location,
he or she must ascertain that the movement
can be made with safety. A traffic
infraction occurs under [Kan. Stat. Ann. §]
8-1522(a) when either rule of the road is
violated.
[Id. at 612.]
The California statute construed in Butler was nearly
identical to N.J.S.A. 39:4-88(b), and the appellate court
interpreted it to place "two affirmative duties . . . upon the
operator of a motor vehicle. One of these is to drive as nearly
as practicable entirely within one lane. A separate duty is not
to move from that lane until the movement can be made with
A-6142-08T4
20
reasonable safety." Butler, supra, 146 Cal. Rptr. at 857
(citing Cal. Veh. Code § 21658(a)); accord United States v.
Colin,
314 F.3d 439, 443-44 (9th Cir. 2002) (noting that the
California Supreme Court would likely agree with the Butler
court's interpretation of Cal. Veh. Code § 21658(a)).
In construing the Kansas statute, the Marx Court did not
discuss the penal character of the Kansas statute, nor did it
invoke the rule of lenity, as we must in New Jersey in light of
the great divide in cases construing the Uniform Vehicle Code §
11-309(a). See Solarski, supra,
374 N.J. Super. at 180-81.
Courts in multiple states have concluded that this Uniform
Vehicle Code provision constitutes only one offense. See Crooks
v. State,
710 So 2d 1041, 1043 (Fla. App.
2 Dist. 1998)
(violation only if lane movement made without ascertaining
safety); State v. Tague,
676 N.W.2d 197, 203 (Iowa 2004) (same);
Rowe v. Maryland,
769 A.2d 879, 884-85 (Md. 2001) (same); State
v. McBroom,
39 P.3d 226, 229 (Or. App. 2002) (same); Hernandez
v. State,
983 S.W.2d 867, 870-71 (Tex. App. 1998) (same). Some
courts construe the statute as prohibiting movement between
marked lanes and not over fog lines. State v. Lafferty,
967 P.2d 363, 366 (Mont. 1998); Commonwealth v. Gleason,
785 A.2d 983, 986-87 (Pa. 2001) (repeated crossing of fog line did not
constitute violation because it did not create safety hazard).
A-6142-08T4
21
We recognize that we are permitted to construe "and" in the
disjunctive. Pine Belt Chevrolet, Inc. v. Jersey Cent. Power &
Light Co.,
132 N.J. 564, 578 (1993); Howard v Harwood's Rest.
Co.,
25 N.J. 72, 88 (1957); State v. Leahy,
381 N.J. Super. 106,
111 (App. Div. 2005), certif. denied,
186 N.J. 245 (2006); Cruz
v. Trotta,
363 N.J. Super. 353, 358 (App. Div. 2003). The Pine
Belt Court observed:
The plain meaning of the phrase
"administered and contracted for" is
conjunctive. We note that "[t]he word 'and'
carries with it natural conjunctive import
while the word 'or' carries with it natural
disjunctive import." State v. Duva, 192
N.J. Super. 418, 421 (Law Div. 1983).
Furthermore, "the legislature is deemed to
have intended what it wrote and the Court
may not construe a contrary concept." Ibid.
We have, however, recognized that "[t]he
words 'or' and 'and' are ofttimes used
interchangeably, and the determination of
whether the word 'and' as used in a statute
should be read in the conjunctive or
disjunctive depends primarily upon the
Howard[, supra,], 24
legislative intent."
N.J. [at 88.]
The language surrounding the disputed
portion of the statute does not evince any
intention to create a disjunctive meaning.
[Pine Belt, supra,
132 N.J. at 578-79.]
The defendant in Leahy, supra,
381 N.J. Super. 106, urged
that the use of "and" in N.J.S.A. 2C:7-2d (Megan's Law) required
proof that he both left his residence without notification to
the local police department and that he failed to register with
A-6142-08T4
22
the municipality to which he moved. Id. at 111. He also urged
that because no proof had been submitted establishing a failure
to register with the new municipality, the State had failed to
prove a violation of the statute. Ibid. We recognized that
"[t]he words 'or' and 'and' are often used interchangeably in
statutes, and the determination as to whether 'and' should be
interpreted in the conjunctive or disjunctive primarily depends
on legislative intent." Ibid. (citations omitted).
We found that "the Legislature made the judgment that
convicted sex offenders represent a risk because of a high rate
of recidivism and that knowledge of their identities and
(citing
whereabouts is necessary for public safety." Ibid.
N.J.S.A. 2C:7-1; Doe v. Poritz,
142 N.J. 1 (1995)). Because
registration "is at the very heart of Megan's Law," that
"[d]efendant's suggested statutory construction would lead to
the anomalous result that a registrant would not be in violation
of the statute if he told the municipality where he resided of
his intention to move but did not register in his new
municipality, which would be unaware of his presence." Id. at
111-12. As a result, we concluded that "the word 'and' must be
equated to the conjunction 'or' to give the statute its proper
Id. at 112. This is not such a case.
meaning and effect."
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23
Under New Jersey's rules of construction, we find that
N.J.S.A. 39:4-88(b) clearly describes one offense. If the first
clause was independent of the second clause, the first clause
would outlaw all movement out of the lane except where travel in
the lane was not practicable, as where an obstruction exists in
the lane. That first phrase standing alone would not permit
lane changes from a left to right lane in order to exit a
highway or pull into a parking space. It would not permit
pulling onto the shoulder of a highway to change drivers. That
clearly is not the law in New Jersey, where overtaking and
passing other vehicles and parking a vehicle are permitted.
See, e.g., N.J.S.A. 39:4-56.5 (vehicles presumed abandoned if
they remain along any highway for more than forty-eight hours),
-86 (overtaking and passing vehicles left of center line unless
the left side is clearly visible and free of oncoming traffic),
-135 (stopping, standing or parking vehicle on right-hand side
of roadway parallel to roadway). Indeed, if the first clause
were construed to be independent of the second clause, and
vehicles are only permitted to change lanes when travel in the
lane was not practicable, then the second clause would only be
triggered where a motorist, faced with some impracticality,
changed lanes before ascertaining that the movement could be
A-6142-08T4
24
made with safety. That certainly is not the narrow focus of the
statute.
Accordingly, we disapprove Woodruff and conclude that the
offense proscribed by N.J.S.A. 39:4-88(b) is failing to maintain
a lane of travel by changing lanes without first ascertaining
that the lane change can be done safely. Defendant was not
39:4-88(b) because there is no
guilty of violating N.J.S.A.
evidence that the movement of his vehicle was not made with
safety.
Last, after carefully reviewing the record in light of the
written and oral arguments advanced by the parties, we conclude
that defendant's argument in Point III is "without sufficient
merit to warrant discussion in a written opinion." R. 2:11-
3(e)(2). We affirm the determination respecting the chain of
custody substantially for the reasons expressed by the Law
Division judge in his oral opinion delivered on June 5, 2009.
Affirmed in part and reversed in part.
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25
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