STATE OF NEW JERSEY v. CHARLENE CURRAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLENE CURRAN,

Defendant-Appellant.

_________________________________________________________

July 17, 2014

Argued May 6, 2014 Decided

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-79-12.

Mark F. Heinze argued the cause for appellant (Ofeck & Heinze, attorneys; Mr. Heinze, of counsel; Patrick J. Jordan, on the brief).

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

PER CURIAM

Defendant Charlene Curran appeals from the Law Division judgment of conviction after a trial de novo for refusal to submit to a breath test contrary to N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4 A. 1 Defendant entered a conditional guilty plea in municipal court for both the refusal charge and driving while intoxicated (DWI), N.J.S.A. 39:4-50, while preserving her right to appeal the municipal court's findings that the police had probable cause to arrest her, and that she was operating a vehicle. After the de novo hearing, the Law Division judge acquitted defendant of the DWI, but determined police had sufficient probable cause to arrest her for DWI and request a breath sample, and therefore found her guilty of violating the refusal statute. We affirm.

The record reveals the following facts. On February 21, 2012, the Ramsey Police Department received a telephone report from a liquor store clerk that a highly intoxicated female had been in the store and was about to get into her car and drive. Ramsey Police Officer Brian Arsi was dispatched to the scene and arrived within a minute as the liquor store was near the police station. Arsi observed defendant walk from the liquor store, get into the driver's seat of her car, and fumble around in her purse. When Arsi approached defendant and asked for her license and registration, he detected a strong odor of alcohol on her breath. Defendant, first asking if she would be arrested if she answered, reluctantly admitted that she had driven her car to the liquor store's parking lot, but did not specify when. Arsi escorted defendant to an adjacent area for field sobriety testing. After arresting defendant for DWI, the police asked defendant to take a breath test. She refused. Defendant subsequently was charged with DWI and refusal to submit to a breath test.

Prior to the municipal trial, the judge denied defendant's motion to suppress which contended that the police lacked probable cause to arrest her because adequate proof of operation was wanting. The municipal court judge determined that probable cause existed to arrest defendant for DWI. The factors the judge found to support his decision included defendant's admission that she drove to the liquor store, defendant's fumbling around in her purse appearing to be an attempt to retrieve her keys, and defendant's car being located far away from her residence. The judge further found that defendant was in actual physical control of the vehicle in a quasi-public area and intended to operate the vehicle, and concluded that the State proved beyond a reasonable doubt defendant was operating her vehicle.

At the Law Division trial de novo, the judge acquitted defendant of the DWI charge, finding that the record did not contain sufficient evidence to prove the DWI charge beyond a reasonable doubt. The judge, however, found the police had probable cause for the DWI arrest, and determined defendant was guilty of refusal to submit to a breath test. The judge imposed the same sentence as the municipal court: a seven-month license suspension, a six-month installation of an ignition interlock device consecutive to the suspension period, twelve hours in the Intoxicated Driver's Resource Center, and various fines, assessments, and surcharges. The judge stayed the sentence pending this appeal.

Before us, defendant argues that there was no probable cause to arrest her for DWI, and thus, the refusal charge must be dismissed. Specifically, defendant contends that since the DWI charge failed for lack of evidence that she recently operated or intended to operate the car, the refusal charge should have failed for the same reason. Defendant points out that despite her admission that she drove to the liquor store, the store clerk made no mention of when she arrived; the officers did not observe her placing the keys in the ignition, turning on the lights, or actually operating her car; the police never felt the hood to determine if the engine was warm from recent usage; and her car was parked properly in a legal parking space. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm.

In reviewing de novo Law Division trials of municipal court appeals, we consider only whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). This "rule of deference is more compelling" when both the municipal court and the Law Division "have entered concurrent judgments on purely factual issues." Id. at 474. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The refusal statute provides that:

The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor or a narcotic, hallucinogenic, or habit-producing drug or marijuana; whether the person was placed under arrest, if appropriate, and whether he refused to submit to the test upon request of the officer[.]

[N.J.S.A. 39:4-50.4a(a).]

Although the refusal statute sets forth a standard of preponderance of the evidence, "because a breathalyzer refusal case is properly a quasi-criminal matter, the constitutionally required burden of proof is the one applicable to criminal cases: proof beyond a reasonable doubt." State v. Cummings, 184 N.J. 84, 89 (2005). Thus, to secure a conviction under the refusal statute, the State must prove beyond a reasonable doubt that "'(1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test.'" State v. Badessa, 185 N.J. 303, 312 (2005) (quoting State v. Wright, 107 N.J. 488, 490 (1987)).

Refusal is "a separate and distinct offense from conviction of drunk driving." Wright, supra, 107 N.J. at 504. Accordingly, a conviction for refusal to take a breath test can be sustained where there is probable cause to believe defendant was driving while intoxicated despite a lack of proof beyond a reasonable doubt as to operation. Id. at 502-04.

While the State must prove guilt beyond a reasonable doubt, Cummings, supra, 184 N.J. at 89, probable cause to arrest is a lower threshold, i.e., "a well-grounded suspicion that a crime has been or is being committed" by the defendant. State v. Marshall, 199 N.J. 602, 610 (2009) (internal quotation marks and citation omitted). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Ibid. (alterations in original) (internal quotation marks and citation omitted). Although it is difficult to define the concept with precision, probable cause requires "more than a mere suspicion of guilt" but less evidence than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010) (citations omitted).

Probable cause for driving under the influence will be found where an officer "had reasonable grounds to believe that the driver was operating a motor vehicle in violation" of the DWI statute. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (internal quotation marks and citation omitted). In assessing probable cause, a judge considers the totality of the circumstances. State v. Moore, 181 N.J. 40, 46 (2004). They are viewed "from the standpoint of an objectively reasonable police officer." Basil, supra, 202 N.J. at 585 (internal quotation marks and citation omitted).

The Law Division judge's conclusion that probable cause existed for defendant's arrest was well supported by the record. The record reveals that while investigating the report from the liquor store, Officer Arsi observed defendant sitting alone in the driver's seat of her car with the door closed, smelling strongly of alcohol, and fumbling around in her purse, which Arsi reasonably believed was an attempt to retrieve her keys to operate the vehicle. Defendant answered affirmatively when asked whether she drove from her residence to go to the liquor store, and inquired whether she would be arrested if she admitted to doing so.

Under the totality of the circumstances, these facts established sufficient grounds for an objectively reasonable police officer to believe that defendant had operated or intended to operate a motor vehicle in violation of the DWI statute. See Basil, supra, 202 N.J. at 585. The mere fact that there were plausible alternative explanations for defendant's conduct, which established reasonable doubt for the DWI charge, does not defeat a finding of probable cause when sufficient facts exist to establish a well-grounded suspicion that defendant drove her car while intoxicated. See Wright, supra, 107 N.J. at 502-04. Accordingly, we find no occasion to disturb the Law Division's decision as it was supported by sufficient credible evidence in the record. See Clarksburg Inn, supra, 375 N.J. Super. at 639.

Affirmed. The stay of the sentence is vacated, effective twenty days from the date of this opinion.

1 Although defendant's conviction lists only the implied consent statute, N.J.S.A. 39:4-50.2, a refusal charge necessarily implicates both the implied consent statute, and the refusal statute, N.J.S.A. 39:4-50.4a, as they "not only cross-reference one another internally, but they also rely on each other substantively." State v. Marquez, 202 N.J. 485, 502 (2010).