STATE OF NEW JERSEY v. CAROLYN E. JENKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3885-05T33885-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAROLYN E. JENKINS,

Defendant-Appellant.

_____________________________________________________

 

Argued March 7, 2007 - Decided March 21, 2007

Before Judges Wefing and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Judgment of Conviction No. BMA 003-14-05.

Severiano E. Lisboa, IV, argued the cause for appellant (Law Offices of Brian J. Neary, attorney; Mr. Neary and F. Jon Iannaccone, of counsel; Mr. Iannaccone, on the brief).

Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).

PER CURIAM

In this appeal, defendant argues that her conviction of driving while under the influence, N.J.S.A. 39:4-50, should be reversed, claiming, among other things, the lack of a reasonable suspicion to stop her vehicle, the lack of probable cause for her arrest, and the lack of sufficient evidence to support her conviction. We find no merit in these arguments and affirm.

The evidence that the municipal judge and the Law Division judge were entitled to credit and rely upon revealed that, at 2:15 a.m., on October 24, 2004, Officer Matthew Muenzen of the Ho-Ho-Kus Police Department, observed defendant's vehicle traveling south in the slow lane of Route 17 at approximately forty miles per hour in a location where fifty-five miles per hour was the posted speed limit. After observing the vehicle partially cross into another lane and then return to the slow lane, Officer Muenzen signaled for defendant to pull over.

Officer Muenzen approached defendant's vehicle and asked for her driving credentials. Although defendant was able to produce her credentials without hesitation or fumbling, Officer Muenzen observed, as he testified in the municipal court, that defendant's "eyes were red and watery, and that there was an odor of alcoholic beverage coming from her mouth, from inside the vehicle." Defendant also stated that she was driving from Manhattan to West Orange; the fact that she was stopped in Ho-Ho-Kus while traveling south on Route 17 reveals that she was either lost or geographically disoriented.

Officer Muenzen asked defendant to step out of her vehicle in order to administer field sobriety tests. He testified that defendant started performing the "walk and turn" test before directed to do so and that she took nine steps forward with a large amount of space in between, did not turn with four steps as instructed, and took the same kind of steps back. She also started the "one-legged stand" test before being instructed, did not count out loud, swayed, and raised her hands; she could not adequately complete the test in four attempts.

Defendant was placed under arrest and brought to the Ho-Ho-Kus police headquarters, where she was read her Miranda rights. Upon questioning, defendant advised Officer Muenzen that she had had one drink and was on Prozac. Two breathalyzer tests indicated a blood alcohol content of 0.16 and 0.15.

Following a trial in municipal court, defendant was convicted of driving while under the influence, N.J.S.A. 39:4-50, driving at a slow rate of speed, N.J.S.A. 39:4-97.1, and disregarding marked lanes of travel, N.J.S.A. 39:4-88(b). She appealed to the Law Division. Following the argument of counsel and his review of the municipal court record, the Law Division judge came to the same conclusions as the municipal judge. As a second time DWI offender, defendant was sentenced to two days in jail, which the judge permitted to be served at the Intoxicated Driver Resource Center, and ordered to perform thirty days of community service. Defendant's driving privileges were suspended for two years; fines and other monetary penalties were also imposed.

On appeal to this court, defendant argues:

I. THE POLICE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION FOR PULLING MS. JENKINS OVER.

II. THE POLICE LACKED PROBABLE CAUSE TO ARREST MS. JENKINS FOR DWI.

III. THE STATE DID NOT PROVE MS. JENKINS GUILT [OF THE] PER SE OFFENSE OF DWI.

IV. THE STATE DID NOT PROVE MS. JENKINS GUILT OF COMMON LAW DWI.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

In Point I, defendant argues that Officer Muenzen lacked a reasonable and articulable basis for stopping her vehicle. We reject this. There was evidence in the record, which both the municipal judge and Law Division judge credited, that defendant's vehicle was traveling at a markedly slow rate of speed and had meandered into an adjoining lane of travel. These facts alone justified the stop of defendant's vehicle. See State v. Martinez, 260 N.J. Super. 75 (App. Div. 1992).

In Point II, defendant argues that Officer Muenzen lacked probable cause to arrest defendant for driving while under the influence. We disagree. Probable cause to arrest an individual "is defined as a well grounded suspicion or belief on the part of the . . . arresting officer that a crime has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989). In the present context, "the yardstick for making [an] arrest for driving while under the influence of intoxicating liquor . . . 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).

Here, having stopped defendant for driving too slowly and for allowing her vehicle to wander across a lane marker, Officer Muenzen spoke with defendant and observed that her eyes were red and watery, and that there was an odor of alcohol coming from her mouth. In addition, defendant stated that she was driving from Manhattan to West Orange, which, considering that the stop occurred in Ho-Ho-Kus, demonstrated that defendant was either lost or disoriented. Considering these circumstances and defendant's poor performance during the field sobriety tests, there was more than an adequate basis for defendant's arrest. See State v. Mosak, 246 N.J. Super. 12, 20 (App. Div. 1991) (holding that flushed face, watery and red eyes, the strong odor of alcohol, and an admission of drinking, presented 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).

In Point III, defendant argues that her conviction for driving while under the influence, insofar as it was based upon the results of the breathalyzer, must be set aside because, among other things, the State failed to sustain its burden of proving that the breathalyzer was working properly. And, in Point IV, defendant argues, for essentially the same reasons that she urged in arguing the absence of probable cause to arrest, that there was insufficient evidence to base her conviction of driving while under the influence upon the subjective prong of the statute. We need not reach the arguments concerning the evidence of the breathalyzer results because we are satisfied there was ample evidence for the finding of guilt on the subjective prong.

To support a finding under the subjective prong, it must be demonstrated that the defendant's drinking altered his or her physical coordination and mental faculties as to make it unsafe to drive a motor vehicle. State v. DiCarlo, 67 N.J. 321, 328 (1975). The Law Division judge concluded, as had the municipal judge, that the slow speed and weaving of defendant's vehicle, followed by the officer's observations of defendant's watery and red eyes, and the smell of alcohol, and defendant's poor performance during the field sobriety tests, provided ample evidence to support application of the subjective prong of the statute. These findings are entitled to our deference and we discern no reason for disturbing the judge's conclusions. State v. Locurto, 157 N.J. 463, 470 (1999).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-3885-05T3

March 21, 2007