STATE OF NEW JERSEY v. FRANCIS GOLZ 2011 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0643-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS GOLZ,

Defendant-Appellant.

________________________________________________________________

March 8, 2011

Argued February 28, 2011 - Decided

Before Judges Rodr guez, Grall and Coburn.

On appeal from the Superior Court of New

New Jersey, Law Division, Passaic County,

Municipal Appeal No. 4829.

John Vincent Saykanic argued the cause for

appellant.

Christopher W. Hsieh, Senior Assistant Prosecutor,

argued the cause for respondent (Camelia M. Valdes,

Passaic County Prosecutor, attorney; Mr. Hsieh,

of counsel and on the brief).

PER CURIAM

Defendant, Francis Golz, lost his motion to suppress and was convicted in municipal court, and then on appeal in the Law Division at the conclusion of a trial de novo, of driving while intoxicated [DWI], N.J.S.A. 39:4-50. He now appeals to us, arguing that his suppression motion should have been granted and that the Stated failed to prove operation or an intent to operate beyond a reasonable doubt.

After losing his motion to suppress in municipal court, defendant stipulated that he was intoxicated, while maintaining that the State had failed to prove operation or intent to operate. The only witness was the arresting officer, and the facts relating to the motion to suppress and operation were not disputed.

After carefully considering the record and briefs, we are satisfied that defendant's arguments are without merit and do not merit discussion in a written opinion. R. 2:11-3(e)(2). Furthermore, we affirm substantially for the reasons expressed by Judge Guzman in his thorough and well-reasoned oral and written opinions of September 25, 2009 as amplified. Nevertheless, we add the following brief comments respecting what defense counsel termed his main argument; namely, that the State failed to prove intent to operate.

The incident occurred on the night of August 21, 2008, outside a bar. About a minute after headquarters called the arresting officer, telling him that an anonymous caller had just said that an intoxicated man was leaving a bar and attempting to drive away on his motorcycle, the officer drove into the parking lot of the bar. He immediately saw the motorcycle, headlight on and motor running. After activating his overhead lights, the officer approached defendant, who was standing next to the motorcycle and putting on his driving helmet. A woman, who had her driving helmet on, was starting to get on the motorcycle's rear seat. The woman said she was could not operate the motorcycle, and defendant said that he was going to drive it home. The officer smelled a strong odor of alcohol and defendant's breath and noticed that his speech was slurred and his movements were slow. Defendant admitted drinking five beers.

"Operation (of a motor vehicle) 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). In State v. Mulcahy, 107 N.J. 467 (1987), another DWI case, the police saw an inebriated man stagger out of a tavern, get into the driver's seat of his car, and start to put the key in the ignition. Id. at 470. In the Court's view, those circumstances proved operation. Id. at 478. There the Court said, "Only the chance occurrence of the police officer upon the scene prevented this vehicle from being placed in motion . . . ." Obviously, the same may be said here, though here the officer's presence was not by chance, since the motorcycle's motor and head light were on, a passenger was getting on, and defendant was putting on his helmet. All he had to do was hop on and drive away, which he admitted to the officer was exactly what he intended to so. In short, the intent and present ability to operate were even clearer here than in Mulcahy.

At argument, defendant properly conceded that when the officer first approached defendant and began speaking to him this was a field inquiry, thus not even requiring reasonable suspicion. State v. Pineiro, 181 N.J. 13, 20 (2004). Almost immediately, the officer noticed defendant was intoxicated. Given all the circumstances, the officer at that point had probable cause to arrest for DWI.