STATE OF NEW JERSEY v. JESSICA PAVLICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02648-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSICA PAVLICK,

Defendant-Appellant.

___________________________________

May 12, 2014

Submitted February 5, 2014 - Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-013.

Fusco & Macaluso, LLC, attorneys for appellant (Alfred V. Gellene, on the brief).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following denial of her suppression motion, defendant entered a conditional plea to driving while under the influence (DWI), N.J.S.A. 39:4-50. The court sentenced defendant as a second offender, imposing a two-year revocation of her driving privileges, ordering her to attend the Intoxicated Driver Resource Center (IDRC), in lieu of spending two days in jail, and assessing appropriate fines and penalties. On appeal de novo, defendant argued the officer lacked a reasonable basis to stop her and thereafter had insufficient justification to require her to exit her vehicle to perform field sobriety tests. The Law Division judge disagreed and found defendant guilty of DWI and imposed the same sentence as previously imposed by the municipal judge. The present appeal followed.

On appeal defendant raises two points for our consideration:

POINT ONE

THE FALSE INFORMATION GIVEN TO OFFICER MORGAN CANNOT BE THE VALID BASIS FOR A MOTOR VEHICLE STOP UNDER THE NJ CONSTITUTION.

POINT TWO

THE ARRESTING OFFICER HAD INSUFFICIENT JUSTIFICATION TO REQUIRE THE DEFENDANT TO EXIT HER VEHICLE AND PERFORM PSYCHO-MOTOR TESTS.

The de novo record on which the Law Division judge reached his decision was based upon stipulated facts presented before the municipal judge. According to those facts, on October 19, 2011, at approximately 1:30 a.m., Officer Joseph Morgan was stopped at a traffic light behind a black Ford Fusion. The officer ran a computer check of the license plate, which revealed that the driver's license of the vehicle's owner, Jessica Pavlick, was suspended. The officer made a visual inspection of the driver, which was consistent with the description of the vehicle's owner depicted on the computer.

Believing the driver was on the revoked list, Officer Morgan stopped the vehicle after briefly following it. He requested the driver's credentials, which defendant provided. While speaking to her, the officer noticed an odor of alcohol emanating from her breath. He requested Pavlick to exit the vehicle. In response to his question whether she had been drinking, she stated that at around 10:00 p.m. she had consumed a Long Island ice tea, a mixed drink containing, among other ingredients, vodka, gin, tequila and rum. In light of the odor of alcohol and Pavlick's admission that she had been drinking, the officer requested that she perform various psychomotor tests, which she performed poorly.

Based upon of the odor of alcohol on Pavlick's breath, her admission that she had been drinking, and her poor performance of the field sobriety tests, Officer Morgan arrested defendant for driving while under the influence. It was later determined that although defendant had previously been on the revoked list, her license was restored, effective April 13, 2011, six months earlier.

Relying upon our Court's decision in State v. Handy, 206 N.J. 39 (2001), defendant urges that errors conveyed to police officers of a clerical nature by attenuated databases do not necessarily render subsequent stops reasonable. We agree with this proposition, but conclude it has no application here because Officer Morgan had a reasonable and articulable suspicion that defendant was on the revoked list, based upon the information conveyed to him from the computer data base. See State v. Thomas, 110 N.J. 673, 678 (1988)(finding that the stop must be supported by a reasonable suspicion and the State must "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion").

The circumstances here are distinguishable from the facts in Handy, where the court noted that the police dispatcher, who conveyed the information to the arresting officer, knew there was conflicting information and did not attempt to resolve the discrepancy. Handy, supra, 206 N.J. at 47-48. The Court stated that the dispatcher was not attenuated from the arrest but was "literally a co-operative in its effectuation along with the officer on the scene." Id. at 52. The Court noted further that "[w]hat occurred here was that the dispatcher, with a presumably accurate database, simply provided [the officer] with wrong information when a reasonably prudent person would, at least, have advised him of the discrepancies so that he could verify the information himself." Ibid.

These are not the circumstances here. Defendant had previously been on the revoked list but her driving privileges were restored two-days later; however, there was a delay in updating the database, accounting for the misinformation--a fact beyond the officer's control at the time he conducted the look-up. More importantly, a suspicion that defendant's license had been revoked, "unlike a warrant or report of reasonable suspicion, is not a determination about the justification for a stop or arrest." State v. Pitcher, 379 N.J. Super. 308, 318 (App. Div. 2005). A license suspension provides factual information that "leads to a suspicion of a violation of the motor vehicle laws, i.e., one articulable fact." Ibid. That one fact was corroborated by Officer Morgan's comparison of the description of the owner in the database with his visual observation of Pavlick, leading him to conclude that she was in fact the owner of the vehicle whose driving privileges were reportedly revoked. See Ibid.

Moreover, the decision to stop for a suspected motor vehicle violation does not require, for purposes of upholding the stop, that the officer prove the driver of the stopped motor vehicle actually committed the motor vehicle offense. See State v. Jones, 326 N.J. Super. 234, 239 (holding that the "reasonable and articulable suspicion" standard does not require the State to prove that a defendant actually committed a motor vehicle violation; the State need prove only that the officer had a reasonable and articulable suspicion that an offense has been committed). Under the totality of the circumstances here, Officer Morgan pointed to specific and articulable facts from which he reasonably concluded that defendant was operating her motor vehicle while on the revoked list.

Defendant's remaining point that Officer Morgan lacked sufficient justification to request that she exit her vehicle and perform field sobriety tests is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

Under the stipulated facts, the officer detected an odor of alcohol and defendant admitted she had consumed a Long Island iced tea approximately three and one-half hours earlier. Given the three and one-half hour interval between the time defendant said she consumed alcohol and when Officer Morgan detected alcohol on her breath, there was more than adequate justification to conclude that her alcohol consumption had been more recent and that she had been operating her motor vehicle under the influence of alcohol.

Affirmed.