STATE OF NEW JERSEY v. WILLIAM G. WRIGHT, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2018-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM G. WRIGHT, JR.,

Defendant-Appellant.

_______________________________

Telephonically argued October 5, 2012 - Decided November 28, 2012

 

Before Judges Lihotz, Ostrer, and Kennedy.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. A-15-11.

 

Shanna McCann argued the cause for appellant (Chance & McCann, LLC, attorneys; Ms. McCann, on the briefs).

 

G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).

 

PER CURIAM

Following an unsuccessful pre-trial motion to suppress, defendant William Wright, Jr., was tried in the Stow Creek Township Municipal Court on June 3, 2011. The municipal court judge (MCJ) found him guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50, driving while suspended, N.J.S.A. 39:3-40, accessing a state wildlife management area during unauthorized hours, N.J.A.C. 7:25-2.5(a), and possession of alcoholic beverages in a state wildlife management area, N.J.A.C. 7:25-2.4. Following a trial de novo, the Law Division likewise found defendant guilty on all charges. Defendant appeals from the conviction for DWI, arguing:

POINT I

 

THE COURT BELOW FAILED TO APPLY THE TOTALITY OF THE CIRCUMSTANCES TEST WHICH, WHEN APPLIED, REVEALS THE OFFICER DID NOT HAVE PROBABLE CAUSE TO STOP OR ARREST DEFENDANT.

 

A. No [r]easonable [a]rticulable suspicion to stop.

 

[1]. Lawfully parked.

 

[2]. Fits within an exception in the regulations.

 

[3]. Community Caretaking.

 

B. No probable cause to arrest.

 

[1]. Authority.

 

[2]. No operation of a Motor Vehicle.

 

[3]. Field Sobriety Tests were Improperly Administered.

 

i. HGN.

 

ii. Walk and Turn Test and One Legged Stand.

 

POINT II

 

THE DEFENDANT'S DWI CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

 

A. The state did not prove operation beyond a reasonable doubt and the DWI summons should have been dismissed because there is not intent to operate.

 

B. The blood alcohol results ("BAC") readings are inadmissible against Wright because the Alcotest was not administered within a reasonable time period of time [sic] after he last his [sic] drove his vehicle; and thus the state can offer no credible evidence that he drove his vehicle while intoxicated.

 

[1]. Observation Prong.

 

[2]. Per Se Prong.

 

C. The state cannot prove a per se violation of the statute because the Alcotest evidence is inadmissible.

 

[1]. Failure to observe specific protocols.

 

[2]. The State failed to prove compliance with the twenty minute observation/deprivation period.

 

[3]. Ertco Hart/Control Company Certificates.

 

D. The State cannot prove [DWI] based on observation beyond a reasonable doubt.

 

We affirm.

I.

These facts were presented by the State in the municipal court trial. Defendant was arrested on May 7, 2010, when Warden Scott Risher, a State Conservation Officer, found him parked at 10:30 p.m., in the Gum Tree Corner Wildlife Management Area (the park). The park is specifically dedicated for use by hunters and fishermen, not the general public. Warden Risher was patrolling after the park closed at 9 p.m., in part to ensure no illegal activity occurred, as hunting and trapping are not permitted at that time. Warden Risher observed defendant's parked vehicle and believed there may have been a distressed motorist whose car had broken down and who needed assistance. As Warden Risher approached the vehicle, which was not running, he heard loud radio music playing and saw the key in the ignition. Warden Risher also noted an empty beer can next to a cooler in the bed of the truck, flattened empty cardboard boxes with beer manufacturer labels, two cans of beer, and several spent shotgun shells. Warden Risher acknowledged he had no way of knowing what time defendant had entered the park. When he encountered defendant at 10:30 p.m., it was the first time he had patrolled the area that evening.

Defendant was in the vehicle, "sleeping, passed out in the driver's seat." Warden Risher banged on the driver's side window several times to rouse defendant. When he finally awoke, defendant complied with Warden Risher's request to exit his vehicle. Warden Risher noted defendant "could hardly stand up without leaning onto the vehicle." He was unable to provide a valid driver's license. Warden Risher's observations during the field interview were recorded as follows:

Mr. Wright's speech was slow, slurred and hard to understand. Mr. Wright admitted to consuming "12 beers" at "Billy Smith's residence in Greenwich" and driving from Billy Smith's house to the parking lot where we found him. There was also another cooler inside the cab that contained additional beer.

 

Warden Risher contacted the State Police, which dispatched Trooper Rodney Yamasaki to administer field sobriety tests. Sergeant Yamasaki's dash board camera recorded his encounter with defendant.

As he spoke to defendant, Sergeant Yamasaki smelled the odor of alcohol emanating from his breath and the video recorded his slurred speech. Sergeant Yamasaki administered three field sobriety tests: the "walk-and-turn" or "heel-toe" test; the "one-legged-stand" or "one-leg-raise" test; and the Horizontal Gaze Nystagmus (HGN) test. Prior to commencing testing, Sergeant Yamasaki inspected the ground to be sure it was "[l]evel, straight[,] . . . no potholes or nothing that [defendant] could actually step in." He then instructed defendant on the tests' requirements and demonstrated proper performance.

During the psycho-motor testing, defendant could neither maintain his balance while he raised one leg nor walk heel-to-toe in a straight line. Further, he generally failed to follow directions regarding the performance of the tests. Sergeant Yamasaki concluded defendant was intoxicated and placed him under arrest.

Defendant was transported to the Bridgton Police Barracks, where Sergeant Yamasaki observed defendant for twenty minutes, Mirandized him,1 read him the standard Alcotest statement, and recorded his answers to the Drunk Driver Operator Questionnaire. Defendant stated he began drinking at 7:30 p.m. and had consumed eight beers "[d]own the farm," with approximately twenty minutes in between each beer, having his last drink at 10 p.m. Sergeant Yamasaki administered the first Alcotest reading at 12:21 a.m. on May 8, 2010. The Alcohol Influence Report (A.I.R.) recorded defendant's blood alcohol concentration (BAC) by volume at 0.19.2

Defendant's motion to dismiss at the close of the State's evidence was denied. William Smith then testified on behalf of the defense. Smith explained defendant visited his farmhouse to help chop firewood from approximately 2 p.m. to 6 p.m. on May 7, 2010, following his eight-hour work shift. Smith stated defendant had one or two beers around dinnertime, and defendant was not intoxicated when he left.

Next, defendant presented testimony from Herbert E. Leckie, a retired State Trooper and currently a partner with DWI Consultants, Inc., who qualified as an expert in DWI testing and related maters. After reviewing Sergeant Yamasaki's records and testimony, Leckie opined the field sobriety tests and the Alcotest were improperly administered.

Following closing arguments, the MCJ issued an oral opinion. He restated an earlier finding that Warden Risher properly approached defendant's vehicle to investigate his presence in the park after hours. Crediting Sergeant Yamasaki, the MCJ found probable cause for defendant's arrest for DWI. Further, relying on Sergeant Yamasaki, the MCJ found defendant had his last drink at 10 p.m., drove from Greenwich Township to the park, and passed out by 10:30 p.m. The Alcotest recorded defendant's BAC above the legal limit. Consequently, the MCJ concluded, based on the direct and circumstantial evidence, defendant was guilty of DWI beyond a reasonable doubt.

A trial de novo was conducted in the Law Division, based on the municipal court record. No additional testimony or evidence was presented. In his appeal, defendant challenged the MCJ's decision, including the following findings: there was probable cause for the stop and arrest; the field sobriety tests were properly administered and the results were sufficient to support intoxication; and the State proved each element of the DWI offense, including operation while intoxicated. The trial judge reviewed each issue and rejected defendant's challenges, finding the State had proven defendant's guilt beyond a reasonable doubt. Noting this was defendant's sixth DWI conviction, the Law Division judge imposed the same sentence as the municipal court, including 180 days in county jail, suspended defendant's driving privileges for ten years, required the installation of an interlock device if and when defendant's driving privileges were restored, and assessed applicable fines, penalties and court costs. This appeal followed.

II.

In its de novo review of a municipal court conviction, the Law Division must make independent findings of fact and conclusions of law. State v. Johnson, 42 N.J. 146, 157 (1964) (instructing the Law Division to decide the case anew, giving "due regard" to the municipal judge's opportunity to view the witnesses). In this regard, the Law Division is bound by the evidentiary record of the municipal court, giving due regard to the MCJ's opportunity to assess the credibility of witnesses. See R. 7:13-1; R. 3:23-8; Johnson, supra, 42 N.J. at 157; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003). Moreover, the Law Division judge must determine whether the State's evidence proves all elements of an offense beyond a reasonable doubt. State v. Howard, 383 N.J. Super. 538, 544 (App. Div.), certif. denied, 187 N.J. 80 (2006).

In our limited review, we determine whether the record contains sufficient credible evidence to support the findings of the Law Division judge, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995) (citing Johnson, supra, 42 N.J. at 162). We do "not weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). See also State v. Locurto, 157 N.J. 463, 470-71, 474 (1999) (explaining appellate courts are not in a position to assess credibility). Unless we determine the Law Division's findings were "clearly . . . mistaken" or "so plainly unwarranted . . . [that] the interests of justice demand intervention and correction[,]" we defer to the court's factual findings. Avena, supra, 281 N.J. Super. at 333 (citations omitted). This includes the need to give due regard to the trial court's credibility determinations. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Moreover, when the municipal court and the Law Division enter concurrent judgments on purely factual issues, we should not disturb those findings "'absent a very obvious and exceptional showing of error.'" State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Locurto, supra, 157 N.J. at 474).

However, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. Belliard, 415 N.J. Super. 51, 78 (App. Div. 2010) (internal quotation marks and citations omitted), certif. denied, 205 N.J. 81 (2011).

III.

Defendant's legal arguments essentially raise the issues presented to the Law Division. We can organize these challenges as attacking the Law Division's findings and conclusions regarding: probable cause to stop; probable cause to arrest; and the sufficiency of the evidence to sustain defendant's conviction.

A.

 

Defendant asserts: "The State did not establish that the stop of Wright was justified because: (1) he was lawfully parked; (2) his presence at the wildlife area fits within an exception to the regulation concerning time limits; and (3) the community caretaking doctrine does not apply here." Defendant's contention is based on a view that there is no proof defendant entered the property after 9 p.m., as forbidden by N.J.A.C. 7:25-2.5; thus, defendant's actions were not illegal because "[t]he regulation clearly discusses entry and does not forbid, for instance, 'being on or about the premises.'" Defendant also contends the facts suggest defendant was hunting and was lawfully in the park. Finally, he maintains the community caretaking doctrine was not implicated by the facts of record.

Following our review, we determine defendant's arguments lack sufficient merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(2). We include these brief comments.

Warden Risher's testimony supports the Law Division judge's finding that Warden Risher had a reasonable articulable suspicion that criminal activity was afoot. No hunting or trapping activities were authorized on the evening of May 7, and the presence of defendant's vehicle, which was not authorized to be in the park at 10:30 p.m. based on referenced regulations prohibiting presence in the park after closing, suggested a violation of the park regulations and hunting laws.

The administrative regulations governing the use of State Parks not only prohibit after-hours entry, but also proscribe remaining on the property following closing. See, e.g., N.J.A.C. 7:2-2.11(o) ("A person shall not enter or remain in any State Park Service area between the daily closing and opening time as posted, authorized use excepted.") (emphasis added). Although N.J.A.C. 7:2-2.11 is part of the State Service Code and N.J.A.C. 7:25-2.5 is part of the Division of Fish and Wildlife Rules, a common sense reading of N.J.A.C. 7:25-2.5, within the provisions of Title 7 as a whole, suggests it defines the hours of permitted use, not merely the time of lawful entry. This is supported by the Division of Fish & Wildlife website, which posts restricted hours stating, "Wildlife Management Areas are closed from 9 p.m. until 5 a.m. unless engaged in lawful hunting, fishing or trapping activities." Division of Fish & Wildlife, Wildlife Management Area Regulations, http://www.nj.gov/dep/fgw/wmaregs.htm (last updated July 6, 2009). Consequently, there is adequate support for the Law Division judge's finding that Warden Risher had an objectively reasonable basis to initiate an investigatory stop by approaching defendant's vehicle and inquiring about his presence in the park in violation of its hours of use. See State v. Nishina, 175 N.J. 502, 512-14 (2003) (finding police officer's investigatory stop proper where he had reasonable and articulable suspicion suspect committed a municipal ordinance violation). See also In re R.M., 408 N.J. Super. 304, 308-09 (App. Div. 2009) (upholding validity of an investigatory stop based in part on officer's reasonable suspicion suspects were present in a prohibited area).

Finally, contrary to defendant's suggestion, we conclude the trial judge did not err in upholding the legality of the encounter by applying the community caretaking doctrine.

The Supreme Court has explained:

In today's society, police officers perform dual roles. On the one hand, they carry out traditional law enforcement functions, such as investigating crimes and arresting perpetrators. On the other hand, police officers perform a wide range of social services, such as aiding those in danger of harm, preserving property, and creating and maintaining a feeling of security in the community.

 

[State v. Bogan, 200 N.J. 61, 73 (2009) (internal quotation marks and citations omitted).]

The valid exercise of the police community caretaking function does not require the demonstration of reasonable articulable suspicion or probable cause to believe criminal activity is afoot. State v. Diloreto, 180 N.J. 264, 276 (2004) (citations omitted). Rather, review of such encounters is judged by a standard of reasonableness. Ibid.

The trial judge correctly noted Warden Risher observed defendant's vehicle in the park after closing and "had a duty to ensure that the occupant of the vehicle was not in distress." The objectively reasonable concerns raised upon encountering defendant's vehicle at 10:30 p.m. reflected something might be wrong with the car or the driver, fully supporting the officer's ensuing encounter with defendant. See State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992).

B.

We also find flawed defendant's attack on the sufficiency of the evidence supporting defendant's DWI arrest. Defendant argues Warden Risher violated his Fourth Amendment rights by unlawfully detaining him and Sergeant Yamasaki lacked probable cause to effectuate an arrest.

1.

An investigative stop may become a de facto arrest, thereby requiring probable cause (a higher standard than reasonable articulable suspicion), when the stop "'is more intrusive than necessary.'" State v. Dickey, 152 N.J. 468, 478 (1998) (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1985)). Citing Dickey, defendant maintains he was subjected to a de facto arrest by Warden Risher because he was detained for a significant amount of time and held in an isolated area. See Dickey, supra, 152 N.J. at 479 (listing four factors to consider in determining whether and when a stop becomes a de facto arrest). We conclude defendant's assertions are unfounded.

Defendant's isolation was a direct result of his unlawful presence in the park after hours. As to the claimed "unnecessary delay" factor, there is no evidence the length of defendant's detention was greater than necessary to address the clear regulatory infractions, including after hours entry, N.J.A.C. 7:25-2.5, and unlawful possession of alcohol in the park, N.J.A.C. 7:25-2.4. Moreover, the scope of Warden Risher's inquiries was justifiably broadened when he observed defendant's visible intoxication, giving rise to a reasonable articulable suspicion defendant had violated N.J.S.A. 39:4-50. See State v. Bernokeits, 423 N.J. Super. 365, 371 (App. Div. 2011) (holding "a police officer is not precluded from broadening the inquiry of his stop if, during the course of the stop or as a result of the reasonable inquiries initiated by the officer, the circumstances give rise to suspicions unrelated to" the offense for which the officer initiated the encounter) (internal quotation marks and citations omitted). N.J.S.A. 23:2-8 expressly authorized Warden Risher to call for the aid of a law enforcement officer when necessary to discharge his duties.3 Consequently, as the trial judge appropriately noted: "The fact that the [warden] has the ability to call in the appropriate officer means that he has the ability to detain an individual until the proper officer arrives." See also State v. Colapinto, 309 N.J. Super. 132, 137-38 (App. Div. 1998) (noting twenty-five minute detention did not exceed permissible bounds of investigative stop where defendant was permitted to wait in his own vehicle while detaining officer summoned another officer to conduct field sobriety tests). We find no error.

 

 

2.

In challenging the finding of probable cause for arrest, defendant argues Sergeant Yamasaki had no reasonable grounds to believe defendant operated his vehicle while intoxicated. We disagree.

"The Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution protect '[t]he right of the people to be secure . . . against unreasonable searches and seizures.'" State v. Brown, 205 N.J. 133, 144 (2011). Therefore, in the absence of a warrant, a police officer must have probable cause to effectuate an arrest. Ibid. Although "probable cause" has not been precisely defined by the courts, it is well-established "that a principal component of the probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting Nishina, supra, 175 N.J. at 515). Thus, an officer must have a "well-founded suspicion or belief" the arrestee is guilty of some crime. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). Probable cause requires more than a bare hunch or suspicion, but less than the legal evidence required for conviction beyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87 (1972) (citations omitted). In the context of an arrest for DWI, "the yardstick . . . is whether the arresting officer had reasonable grounds to believe that the driver was operating a motor vehicle in violation [of N.J.S.A. 39:4-50]." Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967) (internal quotation marks omitted).

In his review, the trial judge examined the totality of the evidence and found:

[O]ne[:] the [d]efendant was found in a parked vehicle, after hours, in a restricted area. Two[:] he was passed out and difficult to rouse. Three[:] the keys were in the ignition. Four[:] the radio was on at a high volume and [five:] the [d]efendant's breath smelled of alcohol and six[:] the [d]efendant was not able or willing to perform the field sobriety tests, as instructed or demonstrated.

 

Further, the video evidence recited in the record reflects defendant's inability to stand without support and his slurred speech. Finally, defendant admitted drinking before he entered the park, consuming his last beer at 10 p.m., and evidence of consumed and unopened beer cans was visible.

The State's proofs, including circumstantial evidence, warrant a finding Sergeant Yamasaki had reasonable grounds to believe defendant drove the car to the park while under the influence of alcohol, after drinking at Smith's farm. See State v. Grant, 196 N.J. Super. 470, 474, 476 (App. Div. 1984) (finding probable cause to believe the defendant operated his vehicle when he was found deeply asleep at the wheel, with the engine off, at the side of the road, and smelled of alcohol). Overall, the factual findings made by the trial judge are amply supported by substantial credible evidence in the record and show defendant had operated or intended to operate his vehicle, providing a reasonable basis for his arrest for DWI.

We spend little time in rejecting as meritless defendant's challenge to the administration and reliability of the psycho-motor test results. R. 2-11-3(e)(2).

Much of defendant's brief is devoted to the unreliability of the HGN test. Although the test was performed by Sergeant Yamasaki, the results were not offered during the municipal court trial or before the Law Division. Understanding the unreliability of the HGN test, see State v. Doriguzzi, 334 N.J. Super. 530, 536-38 (App. Div. 2000) (explaining HGN test is not generally accepted by the scientific community), the MCJ found the State did not seek to rely on this evidence, and the results of the test were discussed only because defendant raised it during the cross-examination of Sergeant Yamasaki and through his expert. Further, the Law Division judge's findings do not rely on the HGN test to support any conclusions, but rather he confirmed "it's evident from [his] testimony that [Sergeant Yamasaki] did not really take [the HGN test] into consideration, and I don't think there was a requirement that he do. He didn't have it apparently in his report. And he relied upon other sobriety tests performed . . . ."

We further find no basis to reject the Law Division's finding of reliability of the field sobriety tests. The trial judge had the benefit of reviewing not only the municipal court testimony, but also considering the video and photographic evidence. He acknowledged the ground upon which defendant performed the field sobriety tests may not have been completely level, but found the evidence showed defendant "was incapable of following instructions given by the trooper. The inability to follow instructions was one of the major bases for determining the [d]efendant was impaired."

C.

Defendant next asserts his DWI conviction must be vacated as it is against the weight of the evidence. Arguing the State failed to prove guilt beyond a reasonable doubt, defendant suggests there was no proof of operation or intent to operate the vehicle; the Alcotest was administered improperly and the results are inadmissible; and the psycho-motor tests were improperly administered and insufficient to sustain a conviction. We are not persuaded.

1.

To sustain the conviction, the State must prove beyond a reasonable doubt that defendant operated his automobile while under the influence of intoxicating liquor. Ebert, supra, 377 N.J. Super. at 10; Grant, supra, 196 N.J. Super. at 477. Determining what constitutes operation has been the subject of many judicial decisions, which guide our review and lead to the conclusion legal operation was shown beyond a reasonable doubt.

The term "operates" as used in N.J.S.A. 39:4-50(a) has been broadly interpreted. State v. Tischio, 107 N.J. 504, 513 (1987), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. Ed. 2d 855 (1988); State v. Mulcahy, 107 N.J.467, 478 (1987). "Operation may be proved by any direct or circumstantial evidence--as long as it is competent and meets the requisite standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992) (citations omitted). Courts have consistently adopted a practical and broad interpretation of the term "operation" in order to express fully the meaning of the statute. Tischio, supra, 107 N.J. at 513; State v. Morris, 262 N.J. Super. 413, 417 (App. Div. 1993).

The Supreme Court first discussed the scope of "operation" in State v. Sweeney, 40 N.J.359, 360-361 (1963). In affirming the defendant's DWI conviction, the Court held:

[A] person "operates"--or for that matter, "drives"--a motor vehicle under the influence of intoxicating liquor, within the meaning of N.J.S.A. 39:4-50 . . . when, in that condition, he enters a stationary vehicle, on a public highway or in a place devoted to public use, turns on the ignition, starts and maintains the motor in operation and remains in the driver's seat behind the steering wheel, with the intent to move the vehicle[.]

 

[Ibid.]

 

Evidence of "intent to move the vehicle" satisfies the statutory requirement of operation so that actual movement is not required. Ibid.

In State v. Daly, 64 N.J.122, 124-25 (1973), the defendant, who had been drinking at a tavern, was found reclining in the driver's seat of his car, parked in the tavern lot with the engine running to power the heater. He testified he realized he had too much to drink and decided to "sleep it off." Id. at 124. The evidence established the tavern closed at 2 a.m. and defendant had been in his vehicle for at least one hour and twenty minutes without driving at the time he was arrested. Id. at 124-25. Based upon these facts, operation was not establishedbecause the State had not presented "evidence from which any . . . intent could be inferred beyond a reasonable doubt." Id. at 125. The Court concluded:

[T]he statutory sanction is against "operating" a motor vehicle while intoxicated. We conclude, as we did in Sweeney, that in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.

 

[Ibid. (emphasis added).]

Further explanation of what constitutes "operation" was set forth in Mulcahy, supra, 107 N.J.at 477-81. The arresting officer watched the defendant stagger from a tavern to his car, which was illegally parked on the sidewalk in front of the tavern. Id. at 470. As the defendant was about to insert his keys into the ignition, the officer reached through the window and grabbed the keys from the defendant's hand. Ibid. The Court reasoned the "split-second choice" made by the arresting officer did not preclude the possibility of probable cause to require a breath test. Id.at 480. The action of attempting to turn on the ignition presented evidence of the intent to drive, establishing "operation" and supporting the defendant's conviction under N.J.S.A.39:4-50. Id.at 480-81.

We have affirmed convictions for DWI when the facts and circumstances present evidence that defendant operated a vehicle while intoxicated, albeit not in the presence of the police.

In Ebert, supra, the defendant reported her car stolen when she could not locate it in the parking lot of a restaurant. 377 N.J. Super. at 4-5. The responding police officer arrested the defendant for DWI because she evidenced physical signs of intoxication, had her car keys in her hand, admitted she had been drinking when she drove into the parking lot to "sleep [it] off," and parked her vehicle in two parking spots. Id. at 5. Under these circumstances we agreed with the conclusion the defendant had driven to the restaurant while intoxicated, supporting her conviction for DWI. Id. at 11.

In State v. Stiene, 203 N.J. Super.275, 280 (App. Div.), certif. denied, 102 N.J.375 (1985), we affirmed the defendant's DWI conviction, finding operation was supported by evidence of the defendant's intent to operate coupled with a concerted, but unsuccessful, attempt to move his vehicle. Although the car was out of gas and its engine therefore could not be engaged, it could nevertheless be moved when the gearshift lever was held between "park" and "reverse." Id. at 277. The defendant attempted to move the vehicle by holding the gearshift and steering while another car pushed his vehicle. Ibid. We found such conduct constituted operation pursuant to the DWI statute. Id. at 280.

In State v. Hanemann, 180 N.J. Super. 544, 554 (App. Div.) certif. denied, 88 N.J. 506 (1981), defendant's DWI conviction was affirmed based upon evidence his vehicle was found damaged and, although not in the car, he had sustained injuries consistent with the physical accident scene, including glass on his face. Ibid. The combination of these circumstances supported the trial judge's finding that the defendant had been operating the vehicle. Ibid.

In State v. Dickens, 130 N.J. Super. 73, 78 (App. Div. 1974), circumstantial evidence supported the conclusion that the defendant operated his vehicle while intoxicated. He was found alone and deeply asleep, in his automobile, on the shoulder of an interstate highway, with the headlights on and the engine running. Ibid. When awakened, the defendant admitted he had been drinking and thereafter drove his vehicle. Ibid. He suggested he had pulled over because he did not feel well. Ibid. We explained "[t]he inference is inescapable that [the] defendant was in fact operating his motor vehicle while under the influence of intoxicating liquor." Ibid.

This overview illustrates what facts support a finding of "operation" in the context of the DWI statute. These decisions further the salutary objectives of the Legislature "to curb the senseless havoc and destruction caused by intoxicated drivers." Tischio, supra, 107 N.J. at 512. See also State v. Hammond, 118 N.J.306, 318 (1990); Morris, supra, 262 N.J. Super. at 417.

Here, the trial judge found "the present circumstantial evidence of operation was the [d]efendant passed out in the seat of his car, with his keys in the ignition and the radio blaring. . . . He had the requisite intent and wherewithal that's required by the statute and by the subsequent case law." Defendant discounts these facts by interjecting a theory that the ignition key was turned to allow the radio to play but preventing operation of the engine. There is no evidence in this record to support such a theory, making it a bald assertion.

Defendant also contends the State failed to prove his intent to operate. The facts here are not limited to defendant sitting behind the wheel with the key in the ignition. Sergeant Yamasaki testified defendant admitted he was drinking at Smith's farmhouse, consumed eight beers between 7:30 p.m. and 10 p.m., and then drove to the park. Defendant told Warden Risher he had come from Smith's house after drinking twelve beers. Contrary to the inference defendant seeks to have drawn -- that he became intoxicated while in the park -- only one empty beer can was found in his truck. The Law Division found the officers' testimony evinced defendant was intoxicated as he drove from the farm to the park where he passed out was credible.

The contrary testimony offered by defendant's friend Smith does not show the Law Division's credibility findings were unsupported or mistaken. Rather, the trial judge's credibility findings were consistent with those made by the MCJ and deserve our deference. Cerefice, supra, 335 N.J. Super. at 383. The direct and circumstantial evidence proves the element of operation beyond a reasonable doubt.

2.

We have reviewed defendant's arguments challenging the administration of the Alcotest, including the claim the test was not shown to have been performed within a reasonable time after defendant operated his vehicle. See Tischio, supra, 107 N.J. at 506 (requiring breathalyzer test to be administered within a "reasonable time"). Defendant urges reversal, emphasizing the time he entered the park is unknown and the time he consumed sufficient alcohol to be intoxicated was not proved. However, neither of these points in time is relevant to the Tischio analysis.

Reasonableness is measured from the time of arrest in order to prevent "prolonged detention of a motorist by the police in the mistaken belief that the blood-alcohol level would then produce a result more favorable to the State." State v. Dannemiller, 229 N.J. Super. 187, 190 (App. Div. 1988). See also State v. Bernhardt, 245 N.J. Super. 210, 215 (App. Div.), certif. denied, 126 N.J. 323 (1991); State v. Samarel, 231 N.J. Super. 134, 142-43 (App. Div. 1989) (concluding a three and one-half hour delay between defendant's actual operation of his vehicle and the administration of the breath tests did not offend Tischio's reasonable-time requirement where police had acted in a reasonably prudent fashion).

As we noted, the evidence shows defendant was drinking at the farm until 10 p.m., and was found at the park thirty minutes later. The Alcotest was administered by 12:21 a.m., one hour and fifty-one minutes after the initial stop by Warden Risher. We conclude the police acted in a reasonable manner and no Tischio violation is present.

Finally, after consideration of the record and the applicable law, we conclude defendant's contention that the Alcotest administration was incompatible with the protocols delineated in State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), lacks sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2). Finally, the A.I.R. reports, including the Alcotest readings, were admitted into evidence without objection. Defendant's consent relieved the State of the burden of introducing further proofs. See Howard, supra, 383 N.J. Super. at 553.

Affirmed.

1 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (setting forth a defendant's constitutional rights upon arrest).

2 The A.I.R. is a printed report produced by the Alcotest machine upon completion of the testing process, stating, among other information, the subject's BAC. See State v. Chun, 194 N.J. 54, 79-84, cert. denied, 558 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

3 N.J.S.A. 23:2-8 states:

[T]he wardens . . . shall have the power of summary arrest in cases of flagrant violation of this Title, or of the provisions of the State Fish and Game Code, and may, in the discharge of their duties, call in the aid of a constable, sheriff or other peace officer when deemed necessary.