STATE OF NEW JERSEY v. MICHAEL BRIGGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4362-08T44362-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL BRIGGS,

Defendant-Respondent.

________________________________________________________________

 

Argued November 12, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-035.

Erin S. Wisloff, Supervising Assistant Prosecutor, argued the cause for appellant (Robert A. Bianchi, Morris County Prosecutor, attorney; Paula Jordao, Assistant Prosecutor, on the brief).

Mark A. Blount argued the cause for respondent (Coppel, Laughlin, Blount & Lavin, LLP, attorneys; Mr. Blount, on the brief).

PER CURIAM

Defendant, Michael Briggs, entered a conditional guilty plea to the charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50, and appealed the municipal court's denial of his motion to suppress a blood sample. The Law Division granted the suppression motion and entered a finding of not guilty on the DWI charge. We granted the State's motion for leave to appeal and now reverse and remand this matter to the Law Division for further proceedings.

On September 22, 2007, at 1:55 a.m., Washington Township police officer Peter Cecere was dispatched to defendant's residence on a report of a motor vehicle accident with injuries. He found defendant lying face down in a pool of blood in his driveway, approximately twenty feet from the garage. Defendant had severe facial injuries and an injury to his left elbow. Daniel Sheola was present at the scene and told Officer Cecere that defendant struck the side of the garage and was thrown from the motorcycle as he was trying to drive it into the garage. The motorcycle was inside the garage when Officer Cecere arrived.

The officer noticed an odor of alcohol as he spoke to Sheola and defendant but was unable to determine if the odor was coming from defendant at that time. Defendant was transported by the first aid squad to a location where he was airlifted to Morristown Memorial Hospital. While defendant was still in the ambulance, Sergeant Brian Szymanski was able to detect a strong odor of alcohol coming from defendant.

Officer Cecere responded to the hospital with a blood kit. After defendant signed a consent to give blood form, a hospital staff member drew a blood sample from defendant in the officer's presence and turned the sample over to him. An analysis of the sample produced a blood alcohol content of 0.088%.

The municipal court denied defendant's motion to suppress the blood sample. Upon acceptance of defendant's conditional guilty plea, the court suspended defendant's driving privileges for a period of three months, required him to perform twelve hours in the Intoxicated Driver Resource Center program, and imposed a $250 fine, $200 DWI surcharge, $50 Violent Crimes Compensation Board penalty, $75 Safe Neighborhood Fund Assessment and court costs. The suspension of defendant's driving privileges was not stayed and has been completed.

Defendant appealed the denial of his motion to suppress the blood evidence. Following a de novo review of the record, the Law Division granted defendant's motion to suppress and then entered a finding of not guilty. This court granted the State's motion for leave to appeal.

On appeal, the State argues that the trial court erred in granting the suppression motion because the police had probable cause to seize defendant's blood and further, that the court erred in entering a finding of not guilty rather than remanding the matter to the municipal court for further proceedings. In response, defendant argues that the suppression motion was properly granted; that the Law Division's finding of not guilty was required; that the State has failed to show that relief is warranted and that this appeal is barred on double jeopardy grounds.

As a general rule, warrants issued upon probable cause are required for a constitutionally permissible search or seizure. State v. Maryland, 167 N.J. 471, 482 (2001). In State v. Ravotto, 169 N.J. 227 (2001), our Supreme Court found an exception to the warrant requirement existed for the seizure of blood in a medically reasonable manner where the police have probable cause to believe a person committed a driving while intoxicated offense and exigent circumstances warranted the seizure. Id. at 250.

Probable cause exists when the facts and circumstances, based upon reasonably trustworthy information, are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949); State v. Moore, 181 N.J. 40, 46 (2004). A court makes this determination based upon the totality of the circumstances. State v. Goodwin, 173 N.J. 583, 598 (2002).

The Law Division determined that the record failed to provide probable cause for the warrantless seizure. The question for us is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). After reviewing the evidence available to the police, we conclude that the Law Division's conclusion is not supported by the record.

The evidence available to establish probable cause consisted of the observations and perceptions of police officers, the statement of a witness at the scene when police responded, and the nature of the accident, including the fact that it occurred at 1:55 a.m. The first police officer found defendant severely injured in his driveway, just twenty feet from the garage. The witness's statement appeared to provide a cogent explanation of how the injury occurred and was not inconsistent with anything observed by the officer. At this point, the officer had probable cause to believe that defendant was injured while operating a motorcycle. The fact that defendant was unable to negotiate driving a motorcycle into a garage without striking the side of the garage certainly raises a question that some other factor contributed to the accident, such as the consumption of alcohol. In fact, the odor of alcohol was detected at the scene. These facts might be considered to support no more than reasonable suspicion due to the officer's inability to detect the source of the odor of alcohol. However, the source of the odor was later traced to the defendant by the sergeant in the ambulance. As a result, the officers were in possession of facts that provided a reasonable ground for believing that defendant was guilty of driving while intoxicated. This was sufficient to establish probable cause. State v. Dangerfield, 171 N.J. 446, 456 (2002); State v. Sullivan, 169 N.J. 204, 211 (2001).

The second prerequisite to a warrantless seizure of blood is that there were exigent circumstances. Ravotto, supra, 169 N.J. at 250. When probable cause has been satisfied, "the dissipating nature of the alcohol content in the defendant's blood present[s] an exigency that require[s] prompt action by the police." Ibid. See also State v. Dyal, 97 N.J. 229, 239-40 (1984). Therefore, the evidence presented was sufficient to permit a warrantless seizure of the defendant's blood in a medically reasonable manner, as was done here.

As a result, we conclude that the evidence does not support the Law Division's conclusion that probable cause did not exist for the warrantless seizure.

Defendant argues that, since the Law Division entered a verdict of not guilty, the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes this appeal. This court considered and rejected a similar double jeopardy argument in State v. Sohl, 363 N.J. Super. 573, 581 (App. Div. 2003). As here, the defendant entered a conditional guilty plea in municipal court to a charge of driving while intoxicated, N.J.S.A. 39:4-50. The defendant in Sohl appealed the denial of his motion to suppress the results of the breathalyzer test. Like here, the Law Division granted the suppression motion and then entered a verdict of not guilty. We noted that, because the defendant had entered a conditional guilty plea, the Law Division was not empowered to enter a judgment of acquittal. Sohl, supra, 363 N.J. Super. at 581.

An appeal from a conviction entered in municipal court upon a conditional guilty plea is an appeal of the municipal judge's denial of the defendant's motion in limine . . . . The de novo appeal of the motion was limited to the legal issue of the admissibility of the breathalyzer certification card of the trooper-operator. The case was not heard on its merits. The Law Division judge was empowered to make his findings and, upon reversal of the municipal court's ruling, return the case to the municipal court for further proceedings in accordance with his ruling.

[Ibid.]

We noted that, "[b]y its very nature, the conviction is not the result of a trial of the facts . . . ." Ibid. At the time the appeal was heard, defendant had entered a guilty plea and provided a factual basis for the plea. "[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case." State v. Barnes, 84 N.J. 362, 369 (1980) (quoting Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975)) (emphasis added).

Pursuant to Rule 7:6-2(c), defendant had "the opportunity to withdraw the guilty plea" if he prevailed on his appeal. In Sohl and here, the defendant did not return to municipal court to retract his plea. Accordingly, "the Law Division judge was unable to enter a finding of not guilty as defendant's plea of guilt remained entered upon the record in municipal court." Sohl, supra, 363 N.J. Super. at 581.

Similarly, the Supreme Court concluded that the double jeopardy clauses of the New Jersey and United States Constitutions did not preclude the State's appeal in Barnes, supra, stating, "As to those defendants who pleaded, a successful government appeal . . . could not subject them to successive prosecution or multiple punishment but only [to] reinstatement of their guilty pleas." 84 N.J. at 369.

 
Therefore, we reverse the order granting defendant's suppression motion and remand to the Law Division to vacate the judgment of acquittal that was erroneously entered.

Defendant challenged the validity of the consent given to the search. However, as the municipal court did not reach that issue, the validity of the consent is not before us.

(continued)

(continued)

9

A-4362-08T4

December 16, 2009