STATE OF NEW JERSEY v. JANE C. MICHELINI

NOT FOR PUBLICATION WITHOUT THE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.

JANE C. MICHELINI,

Defendant-Appellant.

___________________________________

September 2, 2014

Submitted July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-06-13.

Levow & Associates, P.A., attorneys for appellant (Evan M. Levow, of counsel and on the brief).

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

PER CURIAM

Defendant Jane C. Michelini appeals her conviction for refusal to submit to an alcohol-breath test in violation of N.J.S.A. 39:4-50.2(a). We affirm.

I.

We discern the following facts and procedural history from the record on appeal. During the early morning hours of July 12, 2012, Michelini was at a bar in Hackensack. She became involved in a dispute with another patron and was asked to leave the bar. When she refused, the bartender told her that he would call the police. Michelini eventually left the bar. When the bartender went outside, she opened the car door and told him she was waiting for the police.

Police Officer John Knapp arrived at the scene and spoke to the bartender and another person. They explained what happened and identified the car in which Michelini was waiting. Knapp then observed Michelini sitting in her car with the engine running. When Knapp spoke to her, she told him that "she had a problem in the bar." Michelini also told Knapp that she did not want to stay there any longer or leave her car in the parking lot. She did not specifically tell Knapp that she intended to drive the car home.

Knapp smelled alcohol on Michelini's breath and asked her to get out of the car. After performing field sobriety tests, he arrested her for driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. When she subsequently refused to undergo a breath test, she was charged with the refusal.

Michelini filed a motion to suppress, arguing that Knapp lacked probable cause. The Hackensack municipal court judge heard the suppression motion over two days in September and December 2012. On December 12, he denied the motion. Michelini then entered a conditional plea to the refusal charge, and the DWI charge was dismissed. She was sentenced to a seven-month suspension of her driving privileges and applicable fines and penalties. The sentence was stayed pending appeal.

Michelini appealed to the Law Division. The judge held a trial de novo on May 21, 2013. He found that there was probable cause of intent to operate by Michelini. As a result, he found her guilty of the refusal and imposed the same sentence as the municipal judge. He then stayed the sentence pending a further appeal. This appeal followed.

II.

Michelini raises the following issue on appeal:

THERE WAS NO PROBABLE CAUSE TO BELIEVE THAT MICHELINI HAD BEEN OPERATING OR HAD THE INTENT TO OPERATE HER VEHICLE WHILE UNDER THE INFLUENCE, AND THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The Law Division determination is de novo on the record from the municipal court. R. 3:23-8(a). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

Michelini does not deny that she refused the breath test. The issue on appeal is whether Knapp had probable cause to arrest her for DWI, which was the event that led to her being asked to submit to the test.

In finding probable cause, a court must look to the totality of the circumstances, State v. Moore, 181 N.J. 40, 46 (2004) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)), "and view those circumstances from the standpoint of an objectively reasonable police officer," State v. Basil, 202 N.J. 570, 585 (2010) (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775-76 (2003)) (internal quotation marks omitted). Probable cause for DWI exists where an officer has a well-founded suspicion that an offense has been committed, State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991), meaning the officer "'had reasonable grounds to believe' that the driver was operating a motor vehicle in violation of" the DWI statute, ibid. (quoting Strelecki v. Coan, 97 N.J. Super. 279, 284 (App. Div. 1967)).

Our Supreme Court has espoused a broad reading of the terms of N.J.S.A. 39:4-50 in order to effectuate legislative intent. State v. Tischio, 107 N.J. 504, 510-11 (1987). "We are . . . enjoined to give our drunk-driving statutes the pragmatic and flexible interpretations necessary to effectuate the Legislature's regulatory aims, while honoring the due process limitations necessarily attendant upon the law's penal sanctions." Id.at 512. Thus, it is well-settled that courts are to broadly interpret the term "operate" in the context of N.J.S.A.39:4-50 to further legislative aims. Id.at 513; State v. Mulcahy, 107 N.J.467, 480 (1987); State v. Morris, 262 N.J. Super.413, 417 (App. Div. 1993). The Legislature's goal in enacting this statute was to "curb the senseless havoc and destruction caused by intoxicated drivers." Id.at 417 (quoting Tischio, supra, 107 N.J.at 512) (internal quotation marks omitted).

In accordance with this standard, actual operation of a motor vehicle is not required for a conviction under N.J.S.A. 39:4-50. State v. Wright, 107 N.J. 488, 497 (1987). A demonstrated intent to operate a vehicle can constitute "operation" pursuant to N.J.S.A. 39:4-50; an officer need not witness the vehicle in motion. Mulcahy, supra, 107 N.J. at 476; Morris, supra, 262 N.J. Super. at 417-18; State v. Stiene, 203 N.J. Super. 275, 279 (App. Div.), certif. denied, 102 N.J. 375 (1985).

In an early consideration of the operation element of a DWI charge, the Supreme Court held that a person may be operating a motor vehicle when he is in the car with the motor running even when the vehicle has not been moved. State v. Sweeney, 40 N.J. 359, 360 (1963). However, in State v. Daly, 64 N.J. 122, 124 (1973), the Court considered the operation element where the defendant was sleeping in his parked car behind a tavern in a reclined driver's seat with the motor running to provide heat. Finding the requisite intent to operate had not been proven, the Court held that "evidence of intent to drive or move the vehicle at the time must appear." Id. at 125 (emphasis added). In Mulcahy, supra, 107 N.J. at 479, the Court held that "when one enters a car and puts one's self in the driver's seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation."

In distinction to a determination of guilt, which requires proof beyond a reasonable doubt, the standard of proof on a motion to suppress an arrest based on lack of probable cause is preponderance of the evidence. State v. Mann, 203 N.J. 328, 337-38 (2010); State v. Gibson, 429 N.J. Super. 456, 465 (App. Div.), certif. granted on other grounds, 215 N.J. 488 (2013). Having reviewed the facts established at the municipal court trial in light of the law outlined above, we are satisfied that the trial judge's determination that the State proved probable cause for the arrest and subsequent request that Michelini take a breath test is consistent with applicable law and "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162.

Consequently, we affirm the order on appeal. We remand to the Law Division for implementation of the sentence stayed by the trial judge pending this appeal.

Affirmed.