STATE OF NEW JERSEY v. PAUL WOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL WOOD,

Defendant-Appellant.

February 24, 2015

Submitted February 11, 2015 - Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 38-2013.

Steven W. Hernandez, PC, attorneys for appellant (Thomas Cannavo, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following denial of his suppression motion in municipal court, defendant Paul Wood entered a conditional guilty plea to driving while intoxicated (DWI), N.J.S.A. 39:4-50. The municipal court suspended defendant's driving privileges for three months, and ordered him to participate in the Intoxicated Driver Resource Center for a period of twelve hours. The court also imposed the appropriate fines, assessments, surcharges, and costs. Upon de novo review, the Law Division judge denied defendant's suppression motion, found defendant guilty, and imposed the identical sentence.

In this appeal, defendant challenges the denial of his motion to suppress. Defendant argued before the municipal court judge and the Law Division judge, as he does here, that insufficient probable cause existed to arrest him for DWI. We reject defendant's argument and affirm.

We derive the following facts from the record of the suppression hearing. While on patrol on August 25, 2012, at about 3:18 a.m., Trooper Thomas Manzo of the New Jersey State Police observed defendant's car driving in the center lane on the five-lane southbound side of the Garden State Parkway. Manzo "observed [the] vehicle driving erratically, it was accelerating, decelerating, failing to maintain its lane of travel." He "observed twice the driver's side tires crossover the skip line into the left center lane, then reenter the center lane."

Manzo stopped the vehicle and asked defendant for his credentials. Manzo "immediately detected the odor of an alcoholic beverage" and "observed [defendant's] eyes to be watery and bloodshot." Defendant produced his driver's license, but "slowly fumbl[ed] through the vehicle to try to retrieve the insurance card and the registration, which he was unable to do." Defendant's speech was "slow and slurred," and he admitted that he had consumed "a couple of beers" that evening.

Manzo asked defendant to exit the vehicle to perform standardized National Highway Traffic Safety Administration (NHTSA) field sobriety tests because

[b]ased on my training and experience, the erratic operation of the vehicle, the odor of the alcoholic beverage emanating from the interior of the car [], and his admission to consuming alcohol, I wanted to get him out of the vehicle to make sure he wasn't impaired.

On cross-examination, Manzo testified that he had not yet concluded that probable cause existed to arrest defendant for DWI. Manzo administered two field sobriety tests, the walk and turn test and the one-leg stand test, both of which he explained and demonstrated to defendant. On the walk and turn test, defendant initially placed his left foot in front of his right foot, and on his return steps he failed to count aloud, both of which were contrary to the trooper's instructions. Otherwise, defendant performed the test satisfactorily. On the one-leg stand test, defendant did not sway or put his foot down before being told to do so, but was unable to keep his foot raised six inches and did not keep his leg straight as instructed.

Manzo conceded that defendant's failures to follow the prescribed instructions did not constitute any of the four objective clues the NHSTA utilizes to determine a person's level of driving impairment during the one-leg stand test, or any of the eight objective clues the NHSTA utilizes to evaluate impairment during the walk and turn test. Notwithstanding the lack of clues, Manzo determined that "[b]ased on the erratic operation of the vehicle, the odor of the alcoholic beverage emanating from the interior of the vehicle, the appearance of the driver, and his admission to consuming alcoholic beverages, [defendant] was in fact impaired." Defendant was then placed under arrest and charged with DWI; careless driving, N.J.S.A. 39:4-97; and driving outside marked lanes, N.J.S.A. 39:4-88(b).

At the suppression hearing, defendant presented Kevin Flanagan, a self-employed consultant and retired State trooper, as an expert in field sobriety tests. He explained that since the publication of a study conducted in 1997, bloodshot and watery eyes should no longer be used as an indicator of impairment. He concluded that "based [on] the totality of the results of the standardized field sobriety test[s] [] I would not have placed [defendant] under arrest." On cross-examination, Flanagan was questioned whether, given the totality of Manzo's observations, he would have let defendant drive home at the conclusion of the field sobriety tests. Flanagan replied that he would have "conducted additional tests."

After hearing oral argument, the municipal court judge denied defendant's suppression motion. In finding that probable cause existed to arrest defendant, the judge credited Manzo's observations concerning defendant's erratic driving, the odor of alcohol on defendant's breath, defendant's bloodshot and watery eyes and slow and slurred speech, and defendant's difficulties in producing his credentials and his admission that he had been drinking. In addition, the judge concluded that while defendant successfully completed the field sobriety tests utilizing NHTSA standards, Manzo nonetheless found "some issues" in the way the tests were performed. The judge also noted that Flanagan had conceded that, based on the totality of the circumstances, he would have performed more tests rather than releasing defendant. The judge explained that the appropriate standard was not whether defendant was intoxicated beyond a reasonable doubt, but rather "just probable cause [] to arrest him and now to go perform [an] Alcotest."

Defendant entered a conditional guilty plea to the DWI charge, reserving his right to appeal the denial of his suppression motion. The State also agreed to dismiss the two associated motor vehicle charges by way of merger.

Defendant appealed to the Law Division, again challenging the probable cause for his arrest. Following a de novo review, the Law Division judge denied defendant's suppression motion. In a thoughtful written opinion, Judge Alberto Rivas concluded

The factors cited by the police officer in his testimony support the belief that [defendant] was under the influence and warranted being arrested. This belief is not required to satisfy the beyond a reasonable doubt standard. In this case, you have erratic driving, odor of alcohol, and an admission of consumption in the recent past. While much was made of the fact that [defendant] was able to complete the field sobriety tests; this fact does not preclude being arrested. See State v. George, 257 N.J. Super. 493, 496-97 (App. Div. 1992).

On appeal, defendant presents a singular point for our determination

POINT I

THE LAW DIVISION ERRED IN FINDING SUFFICIENT PROBABLE CAUSE TO ARREST FOR DWI. THE OBSERVATIONS OF THE TROOPER WERE INSUFFICIENT TO ESTABLISH PROBABLE CAUSE TO ARREST FOR DWI. THUS, THIS COURT SHOULD REVERSE THE COURT BELOW AND ENTER A JUDGMENT OF ACQUITTAL.

Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we must uphold the judge's factual findings, so long as they are supported by sufficient credible evidence in the record. State v. Diaz-Bridges, 208 N.J. 544, 565 (2012); State v. Elders, 192 N.J. 224, 243 (2007). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." State v. Davila, 203 N.J. 97, 109-10 (2010) (citation and internal quotation marks omitted). We do not, however, defer to a trial judge's interpretation of the law, and review legal issues de novo. State v. Gandhi, 201 N.J. 161, 176 (2010). We review mixed questions of law and fact de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

In addition, on appeal from a municipal court to the Law Division, the review is de novo on the record. R. 3:23-8(a)(2). The Law Division judge must make independent findings of fact and conclusions of law based upon the evidentiary record of the municipal court and must give due regard to the opportunity of the municipal court judge to assess the witnesses' credibility. State v. Johnson, 42 N.J. 146, 157 (1964). On appeal from a Law Division decision, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. Id. at 162. However, as in the Law Division, we are not in as good a position as the municipal court judge to determine credibility and should, therefore, refrain from making new credibility findings. See State v. Locurto, 157 N.J. 463, 470-72 (1999). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We give due regard to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Guided by these principles, we are satisfied that the record contained substantial evidence to support Judge Rivas's determination that probable cause existed. In finding probable cause, a court must examine the totality of the circumstances, State v. Moore, 181 N.J.40, 46 (2004) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983); State v. Novembrino, 105 N.J.95, 122 (1987)), "and view those circumstances from the standpoint of an objectively reasonable police officer." State v. Basil, 202 N.J.570, 585 (2010) (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775-76 (2003) (internal quotation marks omitted)). Probable cause for DWI exists where an officer has a well-founded suspicion that an offense has been committed, 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)), meaning the officer "'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation of" the DWI statute. Moskal, supra, 246 N.J. Super.at 21 (quoting Strelecki v. Coan, 97 N.J. Super.279, 284 (App. Div. 1967)). 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).

Judge Rivas's conclusions are well supported by Manzo's testimony about his observations of defendant, his speech, eyes, inability to maintain lanes while driving, and his admission that he drank alcohol before operating his vehicle. Contrary to defendant's arguments, the results of the field sobriety tests do not negate the judge's finding of probable cause. As Judge Rivas aptly noted, a police officer can make a valid finding without the benefit of any field sobriety tests. See George, supra, 257 N.J. Super. at 496-97 (finding sufficient cause to arrest where defendant performed tests "without error" but was found behind steering wheel with odor of alcohol on breath); see also State v. Grant, 196 N.J. Super. 470, 474-77 (App. Div. 1984) (finding probable cause to arrest where defendant did not perform tests but had difficulty balancing, bloodshot eyes, flushed face, and strong odor of alcohol on breath).

We find no obvious or exceptional error here giving us any reason to disturb the Law Division's judgment. Locurto, supra, 157 N.J. at 474. Accordingly, we reject defendant's argument that Manzo's observations were insufficient to establish probable cause for defendant's arrest.

Affirmed.