STATE OF NEW JERSEY v. MARK WYSOCKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0296-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK WYSOCKI,

Plaintiff-Appellant.

___________________________________

June 3, 2011

Argued March 15, 2011 Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Municipal Appeal No. 10-58.

John Menzel argued the cause for appellant.

AnnMarie Cozzi, Senior Assistant Prosecutor,

argued the cause for respondent (John L.

Molinelli, Bergen County Prosecutor, attorney;

Ms. Cozzi, on the brief).

PER CURIAM

Defendant Mark Wysocki was charged with refusal to submit to a breath test, N.J.S.A. 39:4-50.2, and driving while intoxicated, N.J.S.A. 39:4-50. After the municipal court judge denied his motion to suppress, defendant entered a conditional plea of guilty to the refusal charge. The municipal court judge then ordered that defendant's driver's license be suspended for seven months, that he participate for forty-eight hours at an Intoxicated Driver Resource Center and pay appropriate fines and costs. He stayed defendant's sentence to permit him to appeal to the Law Division. The Law Division judge also denied defendant's motion to suppress and imposed the same sentence as had the municipal court judge; in addition, as had the municipal court judge, he stayed defendant's sentence pending his appeal to this court. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and dissolve the stay of sentence previously granted.

Shortly after midnight on May 31, 2008, defendant was stopped at a checkpoint at the intersection of Rivervale Road and Prospect Avenue in River Vale. Sergeant Sean Scheidle of the River Vale police asked defendant for his driver's license, registration and proof of insurance. Defendant fumbled assembling the requested documents. Sergeant Scheidle later testified that he could detect the odor of alcohol from defendant and that defendant's eyes were bloodshot and watery. After making those observations, he directed defendant to pull forward to the second area of the checkpoint for further investigation. Sergeant Scheidle said that defendant depressed the accelerator to move forward, evidently forgetting that he had placed the vehicle in park as he searched for his documents. As a consequence, his engine revved. Defendant then shifted into drive, and the car jerked forward.

At the second area, defendant met Officer Christopher Bulger of the River Vale police, who again asked to see defendant's driver's license, registration and proof of insurance. Officer Bulger also noticed that defendant had the odor of alcohol on his breath, bloodshot eyes and slurred speech. Officer Bulger wanted to perform some field sobriety tests, and he asked defendant to step out of his car. The area was flat, dry and well lit; and defendant gave no indication of any physical limitations that would affect his ability to complete these tests. Officer Bulger asked defendant to perform in turn the "walk and turn," the "one leg stand" and the "Romberg balance" tests. Officer Bulger said that defendant failed each of these tests, had difficulty maintaining his balance and swayed from side to side. After observing these difficulties, Officer Bulger told defendant he was under arrest, placed him in handcuffs, and advised him of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Officer Bulger then read to defendant in its entirety the New Jersey Motor Vehicle Commission Standard Statement. At the end of paragraph 11 of this document, Officer Bulger asked defendant to submit samples of his breath, and defendant declined. Officer Bulger then read to defendant the last paragraph of the document and again asked him if he would agree to provide samples of his breath, and defendant again declined. Officer Bulger then gave defendant two tickets, one for driving while intoxicated, the other for refusal to provide a breath sample.

Shortly thereafter, two other River Vale police officers drove defendant to police headquarters. When he arrived at police headquarters, defendant indicated he wanted to take the breath test. He was informed that in light of his refusal at the scene, the test would not be performed.

Defendant contended that the road block at which he was stopped was unconstitutional, and he filed a motion in municipal court to suppress evidence of the motor vehicle stop, and of his detention and arrest. In response to defendant's motion, the prosecution presented three witnesses Sergeant Robert Ryan of the River Vale police, Officer Bulger and Sergeant Scheidle.

Sergeant Ryan was the officer who originated and supervised the checkpoint. He had received specialized training in the policies and procedures for setting up and operating a motor vehicle checkpoint. In early May 2008, he submitted a written proposal to the Bergen County Prosecutor, seeking approval to conduct a motor vehicle checkpoint from 11:00 p.m., May 30, 2008, until 3:00 a.m., May 31, 2008, at the intersection of Rivervale Road and Prospect Avenue to check for individuals driving while intoxicated. In this proposal, he recited the municipality's historical experience with such checkpoints; it had conducted twelve checkpoints, which resulted in fifteen arrests for driving while intoxicated, fourteen arrests for narcotics violations, seven arrests for other criminal offenses and the issuance of eighty-six motor vehicle summonses. He noted that a previous checkpoint conducted at this site in 2003 yielded two arrests for driving while intoxicated, three arrests for narcotics violations, two arrests for possession of alcohol by underage persons and four motor vehicle summonses.

He also set forth in the application pertinent figures from the records of the River Vale Police Department: in the preceding year, there had been twenty-nine arrests for driving while intoxicated, seventy arrests for narcotics offenses, and four motor vehicle collisions that involved driving while intoxicated. Sergeant Ryan also pointed out the geographical suitability of the proposed site. Rivervale Road is a north/south roadway that connects towns in northern Bergen County to New York State, where bars remain open for hours beyond New Jersey's closing time. He also noted the significantly greater number of taverns available just across the state line at which drinkers could continue to imbibe during these extended hours. He stated that his experience led him to conclude that "this checkpoint location is a well-traveled corridor likely to interdict these offenders." He set forth specific details as to how the checkpoint would be set up and operated and concluded that he would supervise it in accordance with the guidelines the prosecutor's office had promulgated. After reviewing the application, the Prosecutor granted his approval.

In his testimony, Sergeant Ryan explained how the checkpoint was set up and staffed.

We set up light towers, supplemental lighting with portable light towers to illuminate the intersection. We set up traffic cones and electric flares in the roadway to draw the attention of the motorist to the checkpoint. And also, in advance of the checkpoint on River Vale Road northbound, River Vale Road southbound and Prospect Avenue eastbound we set up variable message boards announcing the checkpoint ahead. And [t]he variable message boards, they are worded "DWI checkpoint ahead, proceed to checkpoint, no turns." An[d] again, that terminology is in accordance with the...prosecutor's guidelines.

Three primary checking areas were set up: (1) Rivervale Road northbound, (2) Rivervale Road southbound, and (3) Prospect Avenue eastbound. A secondary checking area where motorists who were suspected of DWI or other offenses would be sent was set up in the nearby parking lot of the River Vale Fire Department North Fire House.

Three police officers were assigned to each of the three primary checking areas and were given the duties of either a "logger," a "greeter," or a "contact person." A logger "documents the vehicles, the occupants, the stop sequence and any unusual occurrence" on an approved form. A greeter hands out DWI pamphlets. A contact person initiates conversation with the motorist and "looks for any signs of the person operating under the influence of alcohol and/or drugs, looks for obvious motor vehicle violations or . . . probable cause that some other criminal activity is occurring." Ryan said there was no advance notice given to the public of the checkpoint because that is "[n]ot required by the Bergen County Prosecutor's Office."

Sergeant Scheidle testified with respect to his initial encounter with defendant, and Officer Bulger testified with respect to the tests he administered, the statement he read to defendant and defendant's refusal to participate in the breath test. The substance of their testimony is set forth earlier in this opinion, and there is no need to restate it. We do note Sergeant Scheidle's admission that he did not prepare a written report memorializing the circumstances of his encounter with defendant. One final item presented was the videotape of the encounter that had been recorded on one of River Vale's patrol cars. The record indicates that the quality of the recording was poor and that it did not include any oral communications but was entirely silent.

The municipal court judge, in a detailed oral opinion, set forth his reasons for denying defendant's motion to suppress. He found no constitutional infirmity with this checkpoint and was satisfied that "it was correctly established and conducted." He further concluded that the observations of Sergeant Scheidle and Officer Bulger provided probable cause to direct defendant to perform the field sobriety tests. He rejected defendant's argument that Sergeant Scheidle's failure to prepare a written report fatally tainted the entire event.

Thereafter, the prosecution moved to dismiss the charge of driving while intoxicated, and the municipal court judge granted the motion in light of proof problems confronting the prosecution; defendant entered a plea of guilty to the refusal charge. Defendant renewed before the Law Division his challenge to the constitutionality of the checkpoint and his stop. The Law Division rejected his argument, and defendant's appeal to this court followed.

On appeal, defendant raises the following arguments:

I. BECAUSE, BY THE NATURE OF CHECKPOINTS, THERE WAS NO PROBABLE CAUSE TO STOP DEFENDANT, THE STATE'S PROOFS FAIL AS TO THAT ELEMENT OF THE REFUSAL STATUTE REQUIRING PROBABLE CAUSE BEYOND A REASONABLE DOUBT

II. THE CHECKPOINT HERE FAILED TO MEET CONSTITUTIONAL STANDARDS GROUNDED ON OBJECTIVE ANALYSIS OF EMPIRICAL DATA AND ADVANCE PUBLICITY TO THE PUBLIC

A. Because the State Failed to

Introduce Sufficient Empirical Data

to Enable This Court to Determine

the Efficacy of the Checkpoint Here,

This Court Should Declare

Defendant's Stop Invalid and

Suppress the Evidence Against Him

B. Because the State Failed to Give

Notice of the Checkpoint's Existence

to the Public, This Court Should

Declare Defendant's Stop Invalid and

Suppress Evidence Against Him

III. REQUESTING DEFENDANT TO SUBMIT BREATH SAMPLES AT A REMOTE ROADSIDE LOCATION WHILE HE WAS STILL UNDER THE IMMEDIATE STRESS OF ARREST RATHER THAN IN THE POLICE STATION UNDERMINED HIS ABILITY TO UNDERSTAND THE WARNING GIVEN HIM WHEN REQUESTED TO SUBMIT BREATH SAMPLES

Defendant's first argument is that the police lacked probable cause to stop his car in the first instance and thus lacked probable cause to ask him to submit to a breath test. The police, however, did not need a particularized probable cause to stop defendant's car in the context of this matter. We have specifically rejected this aspect of defendant's argument. State v. Kirk, 202 N.J. Super. 28, 56 (App. Div. 1985) (holding that there need not be a showing of "probable cause to stop any individual driver" so long as there is a rational basis for the checkpoint).

In his second point, defendant renews his challenge to the constitutionality of this particular checkpoint. He points to two alleged deficiencies insufficient justification for installing it and inadequate advance notification to the public. In Kirk, supra, 202 N.J. Super. at 58, Judge King, writing for this court, synthesized the principles that govern analysis of the constitutionality of the use of a motor vehicle checkpoint to detect drivers who are intoxicated. In that case, the court struck down a road block "set up by an officer in the field, obviously at a random time and location, for no specific duration, inadequately manned, and not designed for any particular preventative purpose, other than to pull drivers over to see what might turn up. . . ." After surveying opinions from other jurisdictions on both sides of the question, Judge King noted the following important factors:

command supervisory siting and control of check points, careful procedures for moving check points, warning to motorists to allay fears of the traveler, safety of motorists, sufficient staffing to prevent undue inconvenience to motorists and selection of sites and times designed to benefit the overall effort to cope with drunken driving.

[Id. at 57.]

In addition, he commented on the appropriateness of conducting checkpoints on a holiday, the need for evidential support for the site and time selected, the preparation of confirmatory written reports and advance publicity. Id. at 57-58.

Defendant points to other cases in which a more detailed statistical analysis was provided to support the request for a checkpoint than Sergeant Ryan included in the application he submitted to the Prosecutor. State v. Moskal, 246 N.J. Super. 12 (App. Div. 1991); State v. Mazurek, 237 N.J. Super. 231 (App. Div. 1989). It does not follow that because other applications may have been more expansive, this one was necessarily deficient.

Here, in addition to the information we set forth earlier, Sergeant Ryan included the following empirical support for his request for authorization to set up a checkpoint. From 2000 through 2007, the number of DWI arrests made by River Vale police ranged from 21-75 per year, narcotics arrests ranged from 13-126 per year, and DWI-related motor vehicle crashes ranged from 2-6 per year. Since the number of all motor vehicle crashes ranged from 118-151 per year, it can be inferred that DWIs accounted for about 2-4% of all crashes.

In the most recent years, from 2005 through 2007, the number of DWI arrests had increased from 21 to 29 per year, and the number of DWI-related crashes had increased from 3 to 4.

Further, his explanation for selection of this particular site, which referred to its convenient access to a large number of bars that remained open well after New Jersey's had closed, demonstrated a reasoned judgment. Moskal, supra, 246 N.J. Super. at 16 (stating there need only be a showing that "the general location provides public safety and is reasonably efficacious").

In the second aspect of his challenge, defendant points to the reference to advance publicity of the checkpoint in Kirk, supra, 202 N.J. Super. at 46, and urges that the absence of such notification here is fatal. We disagree. Subsequent to the decision in Kirk, we have held in a number of matters that such advance publicity of a checkpoint is not constitutionally mandated. State v. Flowers, 328 N.J. Super. 205, 216-17 (App. Div. 2000); State v. DeCamera, 237 N.J. Super. 380, 383 (App. Div. 1989) (stating "[t]he positive effects of publicizing both the time and the place of roadblocks would be outweighed by the detection and deterrent value of roadblocks [without advance publicity]"). Here, the on-the-scene warnings provided to approaching motorists were more than sufficient to provide adequate notice to the motoring public.

Defendant's final argument is that he should have been permitted, once he arrived at the River Vale police station, to cure his initial refusal and take the breath test. He points to the confusion that surrounds being arrested, as well as the fact that even if he had consented, the test could not have been administered on the scene because the equipment remained at police headquarters. Thus, he argues, it would not have subverted the underlying policy of the refusal statute if he had been permitted to take the breath test once he arrived at the station and his confusion dissipated. His argument, however, is wholly unsupported by the record before us. There is no basis in this record to conclude that defendant was confused when Officer Bulger read the Standard Statement to him and that his refusal to take the test sprang from that confusion. We decline to supply what the record lacks.

Affirmed.