STATE OF NEW JERSEY v. EUGENE F. MAHON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3061-06T53061-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE F. MAHON,

Defendant-Appellant.

_______________________________________________________________

 

Submitted November 5, 2007 - Decided

Before Judges Lintner and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

2006-059.

John Menzel, attorney for appellant.

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Maryann K. Lynch,

Assistant Prosecutor, on the brief).

PER CURIAM

After a trial de novo in the Law Division, defendant Eugene Mahon appeals from his conviction for driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50(a). Defendant presents the following arguments for our consideration:

POINT I

CONSTITUTIONAL PRINCIPLES APPLICABLE HERE MAKE IT CLEAR THAT THE TROOPER VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES BOTH AS TO THE STOP AND ARREST.

A. THE STOP HERE VIOLATED THE CONSTITUTION BECAUSE DEFENDANT COMMITTED NO VIOLATION OF LAW AND WAS NOT REASONABLY SUSPECTED OF ANY.

B. THE ARREST HERE WAS INVALID BECAUSE THE TROOPER'S OBSERVATIONS FAILED TO ESTABLISH A REASONABLE OBJECTIVE BASIS TO SUSPECT THAT DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL.

POINT II

THE EVIDENCE (OBSERVATIONS OF THE WAY DEFENDANT DROVE, ODOR AND ADMISSION OF DRINKING, AND BLOODSHOT WATER[Y] EYES) AND ABSENCE OF OTHER EVIDENCE (BREATH OR BLOOD ALCOHOL RESULTS OR ANY OTHER FACTS EVEN INDICATING THE INFLUENCE OF ALCOHOL) NOT ONLY FAILED TO ESTABLISH BEYOND REASONABLE DOUBT THAT DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL BUT AFFIRMATIVELY ESTABLISHED HIS INNOCENCE.

Based on our review of the record and applicable law in light of the contentions advanced by defendant, we affirm the Law Division judge's decision to deny defendant's motion to suppress, but we remand for additional factfinding on the ultimate issue of defendant's guilt or innocence.

At approximately 12:50 a.m. on the morning of January 27, 2006, New Jersey State Police Troopers David S. Schlatter and Mark Maloney were patrolling westbound Route 280 when they stopped to aid the operator of a disabled vehicle on the shoulder of the road "[b]etween Exit 8 and Exit 9." After "checking [the] person [in the disabled vehicle] to make sure that they were all right" the troopers proceeded back to their patrol car, which was parked behind the disabled vehicle. Trooper Schlatter testified that while walking back to the police vehicle, he observed a Mercedes Benz SUV traveling at approximately seventy-five miles per hour, "swerve[] over" and come within two feet of hitting him. However, the Mercedes, which was driven by defendant, did not "leave the designated right [hand] lane" in which it was traveling or enter the shoulder of the highway. The troopers ran back to their car, activated its overhead lights, and stopped the Mercedes at exit eight on westbound Route 280. The distance between the disabled car and the spot where defendant was pulled over was "less than half a mile."

Upon approaching the driver's side of the Mercedes, Trooper Schlatter observed that defendant was by himself and, while defendant was producing his driver's license and registration, the trooper "immediately detected an odor of alcoholic beverage." The trooper also noticed defendant's "speech was slow," his eyes were "watery and red, bloodshot," and his "clothes were mus[sed]." Trooper Schlatter asked defendant if he "had been drinking," and defendant responded "yes." At this point, Trooper Schlatter asked defendant to exit his vehicle "to conduct field sobriety tests."

Defendant's motion to suppress was heard in the West Orange Municipal Court on June 8, 2006. The only witness to testify was Trooper Schlatter. Defendant did not testify nor did he present any evidence or witnesses. As indicated by the municipal court judge, the purpose of the hearing was twofold: (1) to determine "whether the motor vehicle stop, in the first instance, was proper"; and (2) "whether there [were] sufficient grounds for the police officer to suspect drunk driving, and therefore, request a field sobriety test." For reasons set forth in the record, the municipal court denied defendant's motion to suppress.

At defendant's trial on August 17, 2006, the parties stipulated that the motion to suppress proceedings were admitted into evidence, and both parties rested without producing any additional evidence. The municipal court judge found defendant guilty of DWI based upon Trooper Schlatter's testimony that defendant's vehicle almost hit him, the odor of alcohol, the trooper's observations of defendant after defendant's vehicle was stopped, and defendant's admission that he had been drinking. In addition, the municipal court judge stated:

[Trooper Schlatter] . . . testified from his drunk driving report, indicating that the physical condition of the defendant, based on his observations, were that his ability to walk, he was staggering and sagging. His eyes were bloodshot and watery, as I mentioned earlier. He had difficulty standing. His face was flushed. His hand movements slow. His speech appeared to be slurred, and slow, and he did, again as I stated, testified that there was a[n] odor of alcohol on his breath.

Because of these findings, we have thoroughly examined the record in an effort to locate any testimony by either Trooper Schlatter or Trooper Maloney regarding the administration of field sobriety tests, and we have concluded that the record does not contain any such testimony. Moreover, it does not appear that the Trooper Schlatter's written report was admitted into evidence.

On appeal to the Law Division, the judge's de novo findings included the following:

Defendant here argues that the initial stop was invalid. The prosecutor correctly points out a police officer need only have an articulable and reasonable suspicion that the driver committed a motor vehicle offense in order to effectuate a lawful stop of the vehicle. . . .

Here I believe the troopers did have an articulable and reasonable suspicion that Mahon had committed a motor vehicle offense. The swerving toward the trooper, within two feet of him although not crossing the -- line, and the excessive speed were reasonable grounds for the stop.

After the stop of course the defendant's admission that he had been drinking, noticing the odor of alcohol, the bloodshot, red, watery eyes, the slurred speech all make the arrest and the ticket valid. I find there was a sufficient basis to subject him to the field sobriety testing. . . . And I note that [Trooper Schlatter] didn't provide the information about the swerving or the estimation of his speed.

However, I find that the testimony at trial would be credible and certainly sufficient in order to sustain his conviction. Accordingly, I find the defendant guilty of driving under the influence.

We agree that Trooper Schlatter was justified in stopping defendant's automobile because the trooper had "an articulable and reasonable suspicion" that the operator of the vehicle (that almost hit him) was driving carelessly, contrary to N.J.S.A. 39:4-97. See State v. Locurto, 157 N.J. 463, 470 (1999) ("[A] police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.") (internal quotations omitted). And the trooper's testimony regarding defendant's appearance, his slow speech, the odor of alcoholic beverage, and defendant's acknowledgment that he had been drinking were more than adequate to justify the administration of field sobriety tests. See State v. Moskal, 246 N.J. Super. 12, 20 (App. Div. 1991) (holding that defendant's flushed face, his "drooping and red" eyes, the strong odor of alcohol, and an admission of drinking, established probable cause for arrest); State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.) (holding that defendant's erratic driving, the odor of alcohol, and defendant's difficulty in performing field sobriety tests presented probable cause for arrest), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990). Thus, we affirm the Law Division's decision to deny defendant's motion to suppress, because the court's findings are fully supported by substantial credible evidence in the record, and its conclusions are consistent with controlling legal principles.

On the other hand, the Law Division's factfinding regarding defendant's DWI conviction was inadequate. The court merely stated: "I find that the testimony at trial would be credible and certainly sufficient in order to sustain [defendant's] conviction."

Where a "verbatim record or sound recording" is made of a Municipal Court proceeding, Law Division review is de novo unless it appears that "the rights of either party may be prejudiced by a substantially unintelligible record." R. 3:23-8(a). Under de novo review, a Law Division judge must make independent findings of fact to support the guilt or innocence of a defendant. See State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) ("[T]he judge in a trial de novo must make his or her own independent findings of fact since his or her function is not the appellate function governed by the substantial evidence rule, but rather an independent fact-finding function in respect of defendant's guilt or innocence."); State v. Ross, 189 N.J. Super. 67, 75 (App. Div), ("A trial de novo by definition requires the trier to make his own findings of fact."), certif. denied, 95 N.J. 197 (1983).

In determining whether a driver is under the influence of alcohol, field sobriety tests and breath tests are not always required. Even without such tests, "observational evidence" can be sufficient to prove "a defendant guilty beyond a reasonable doubt of DWI." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div. 1995), aff'd, 293 N.J. Super. 535 (App. Div. 1996). For example, in State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993), we found that the evidence of intoxication, including defendant's slurred speech, his loud and abusive behavior, and his disheveled appearance, together with the strong odor of alcohol, and defendant's red and bloodshot eyes was sufficient to sustain a DWI conviction.

In the present matter, the Law Division judge did not make any independent findings regarding defendant's guilt or innocence. The court simply stated that Trooper Schlatter's testimony was credible and "certainly sufficient" to sustain defendant's conviction. Thus, we have no way of knowing exactly what the Law Division relied on, and we cannot determine whether the Law Division judge was influenced by the municipal court's reference to field sobriety tests which, apparently, are not part of the record. Accordingly, it is not possible for us to determine whether sufficient credible evidence exists to support the findings of the Law Division judge. Locurto, supra, 157 N.J. at 469-71; State v. Johnson, 42 N.J. 146, 161-62 (1964); State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

The decision to deny defendant's motion to suppress is affirmed, but defendant's DWI conviction is reversed and remanded to the Law Division for findings of facts and conclusions of law consistent with R. 1:7-4(a). We imply no disposition on the merits, and we do not retain jurisdiction.

 

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A-3061-06T5

December 6, 2007