NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1098-16T3
STATE OF NEW JERSEY,
Submitted October 16, 2018 – Decided February 21, 2019
Before Judges Suter and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Municipal Appeal No. 25-15.
Levow DWI Law, PC, attorneys for appellant (Evan M.
Levow, of counsel and on the brief; Sandra L. Battista,
on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; William Kyle Meighan,
Senior Assistant Prosecutor, on the brief).
Defendant Stanley Butler appeals his conviction for driving while
intoxicated (DWI). He claims the police did not have a reasonable, articulable
basis to stop his vehicle, probable cause for his DWI arrest nor proof necessary
for a conviction. We affirm, finding ample support in the record.
Patrolman Michael Perkins of the Beach Haven Borough Police
Department testified he was on patrol at midnight when he saw a vehicle exit a
bar and restaurant. He followed the vehicle for about a mile, during which time
the driver made a "California stop," described as stopping briefly at a stop sign,
and appeared to weave within the lane. At Taylor Avenue, instead of driving
straight, he "swerved over into the bicycle lane." Patrolman Perkins pulled over
The driver (defendant) was smoking a cigarette as Patrolman Perkins
approached; he put it out on the center console. Defendant's face was red and
his eyes glassy. Perkins detected a faint odor of alcohol on his breath. Perkins
asked defendant for his driver's license, registration and insurance. His driver's
license was suspended in Pennsylvania; he had no license in New Jersey, only
Patrolman James Lemmo was called to the scene. He was certified to
administer the horizontal gaze nystagmus (HGN)1 test but Perkins was not. He
spoke with defendant, who remained in the vehicle, and detected the smell of
alcohol on defendant's breath. Defendant was speaking with a slight lisp.
Patrolman Lemmo saw that defendant had coins underneath his tongue.
Defendant spit them out at Officer Lemmo's request. Defendant was able to
recite the alphabet, although with some hesitation.
Patrolman Lemmo administered standardized field sobriety tests to
defendant, who was polite and cooperative. When defendant stepped out of the
car for the tests, "he appeared to stumble." Defendant had difficulty following
directions on the HGN test and showed "lack of smooth pursuit in the eyes" and
"The HGN test is based on the observation of three different physical
manifestations which occur when a person is under the influence of alcohol: (1)
the inability of a person to follow, visually, in a smooth way, an objection that
is moved laterally in front of the person's eyes; (2) the inability to retain focus
and the likelihood of jerking of the eyeball when a person has moved his or her
eye to the extreme range of peripheral vision; and (3) the reported observation
that this 'jerking' of the eyeball begins before the eye has moved 45 degrees from
forward gaze if the individual's BAC [(Blood Alcohol Content)] is .10 [percent]
or higher." State v. Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000)
(alteration in original) (quoting State v. Ito, 90 Haw. 225, 231 (Haw. Ct. App.
"nystagmus,"2 although not sustained. Based on that, defendant was required to
perform other tests. On the walk and turn test, defendant raised his arms for
balance, contrary to the instructions, did not step heel-to-toe and swayed back
and forth. On the one-legged stand test, he swayed back and forth and raised
his arms before the officer stopped the test so that defendant did not fall.
Defendant was arrested for DWI and taken to police headquarters where, after
being advised of his rights, he twice refused to submit to a breathalyzer
Defendant was charged with DWI, N.J.S.A. 39:3-40; refusal to submit to
breath testing, N.J.S.A. 39:4-50.4a; failure to maintain a lane, N.J.S.A. 39:4-
88(b); and driving while suspended, N.J.S.A. 39:3-40. His pretrial motion to
suppress evidence was denied. At the municipal court trial, the judge found
Patrolman Perkins was "very credible." Based on his testimony, the judge found
that defendant swerved into the bike lane, smelled of a faint odor of alcohol, and
had a red face and glassy eyes. She viewed the video tape of the traffic stop and
sobriety tests, confirming Patrolman Lemmo's testimony that defendant "[was]
way off balance in the heel step test" and during the one-legged stand test,
Nystagmus is the involuntary rhythmic oscillation or movement of the
eyeballs. Stedman's Medical Dictionary 1350 (28th ed. 2006).
"look[ed] like he [was] going to fall over." Defendant was convicted of all the
The municipal court judge sentenced defendant on the DWI charge as a
second offender, revoked his driver's license for two years, required him to
attend forty-eight hours at the "Intoxicated Driver Resource Center (IDRC)" and
to provide thirty days of community service. He was incarcerated at IDRC for
two days and ordered to use a motor vehicle interlock for one year. 4
On appeal to the Law Division, Judge Melanie Appleby heard the matter
de novo on the municipal court record. She found defendant guilty on all
charges, and imposed the same sentences as the municipal court. In her written
decision Judge Appleby found "there was reasonable suspicion to justify the
Defendant's brief only challenges the DWI conviction. He has waived other
issues by not raising them on appeal. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (citing Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n. 4 (App. Div. 2008) and Zavodnick v. Leven, 340 N.J. Super. 94, 103
(App. Div. 2001)); see Pressler & Verniero, Current N.J. Court Rules, comment
5, R. 2:6-2 (2018).
The court imposed a seven-month driver's license suspension for defendant's
refusal to submit to breath testing that was consecutive to the DWI sentence. He
also was ordered to serve twelve hours at the IDRC and to have an interlock
device for a year. The court imposed a ninety-day license suspension and two
days at the IDRC for driving while suspended. All of these sanctions were
concurrent to the DWI charge.
investigatory stop" based on "the totality of the circumstances." The motor
vehicle stop was justified when defendant failed to maintain his lane of travel
by going into the bike lane. Defendant's appearance and odor warranted further
inquiry and administration of the sobriety tests. Defendant did not successfully
complete the tests. The court found that the patrolman "had probable cause to
arrest [d]efendant for driving while intoxicated based on [d]efendant's actions,
physical presentation and failure to successfully complete the [f]ield [s]obriety
[t]est." The court concluded the State met its burden of proving the elements of
DWI beyond a reasonable doubt "considering the totality of the circumstances,
and the credible testimony of Officer Perkins and Officer Lemmo." 5
Defendant raises the following issues on appeal:
POINT I. NO PROBABLE CAUSE EXISTED TO
STOP APPELLANT'S VEHICLE, THEREFORE ALL
EVIDENCE SHOULD HAVE BEEN SUPPRESSED.
POINT II. NO REASONABLE AND
ARTICULABLE SUSPICION OF INTOXICATION
EXISTED TO HAVE APPELLANT EXIT THE
VEHICLE AND BE SUBJECTED TO FIELD
POINT III. THE COURT BELOW FAILED TO
APPLY THE TOTALITY OF THE
CIRCUMSTANCES TEST, WHICH, WHEN
The court made similar findings for each of the other charges: unsafe lane
change, refusal to submit a breath sample and driving while suspended.
APPLIED, REVEALS NO PROBABLE CAUSE TO
POINT IV. THE DETENTION OF APPELLANT
EXCEEDED A REASONABLE TIME UNDER THE
CIRCUMSTANCES, THEREFORE, THE SEIZURE
WAS UNCONSTITUTIONAL AND THE EVIDENCE
OBTAINED AS A RESULT.
POINT V. THE EVIDENCE FAILS TO PROVE
BEYOND A REASONABLE DOUBT THAT
APPELLANT OPERATED A MOTOR VEHICLE
WHILE UNDER THE INFLUENCE OF ALCOHOL.
There is no merit to these issues.
On appeal, 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) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2),
the Law Division makes independent findings of fact and conclusions of law de
novo, based on the record from the municipal court. See State v. States, 44 N.J.
285, 293 (1965). We determine "whether the findings made could reasonably
have been reached on sufficient credible evidence present in the record." State
v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146,
161-62 (1964)). Our review of legal determinations is plenary. See State v.
Handy, 206 N.J. 39, 45 (2011).
"A lawful roadside stop by a police officer constitutes a seizure under both
the Federal and New Jersey Constitutions." State v. Dunbar, 229 N.J. 521, 532
(2017) (citing Arizona v. Johnson, 555 U.S. 323, 333 (2009)). To stop a vehicle,
the officer must have "'a reasonable and articulable suspicion that the driver of
a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal
or disorderly persons offense.'" Id. at 533 (quoting State v. Scriven, 226 N.J.
20, 34-34 (2016)). See State v. Rosario, 229 N.J. 263, 272 (2017) (second
alteration in original) (quoting State v. Stovall, 170 N.J. 346, 356 (2002))
(explaining that "an investigatory detention . . . must be based on an officer's
'reasonable and particularized suspicion . . . that an individual has just engaged
in, or was about to engage in, criminal activity'").
Once a vehicle is stopped, "a police officer may inquire 'into matters
unrelated to the justification for the traffic stop.'" Dunbar, 229 N.J. at 533
(quoting Johnson, 555 U.S. at 333). An officer may check the driver's license,
inspect the vehicle's registration and proof of insurance. Ibid. If then, "the
circumstances 'give rise to suspicions unrelated to the traffic offense, an officer
may broaden [the] inquiry and satisfy those suspicions.'" Ibid. (alterations in
original) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998)).
In Dunbar, the Court addressed the standard to use for conducting a canine
sniff of a vehicle stopped for a motor vehicle violation. 229 N.J. at 536. The
Court said "[a] lawful traffic stop can transform into an unlawful detention 'if
its manner of execution unreasonably infringes' on a constitutionally protected
interest." Dunbar, 229 N.J. at 533 (quoting Illinois v. Caballes, 543 U.S. 405,
407 (2005)). The Court gave as an example where "the officer overly broadens
the scope or prolongs the stop, absent independent reasonable suspicion." Id. at
539. It is against this framework that we review the trial court's order.
We reject defendant's argument that there was no reasonable and
articulable suspicion of a motor vehicle violation to stop his vehicle. Patrolman
Perkins testified he observed defendant for more than a mile. He saw him stop
quickly at one stop sign and weave, but he did not stop him. Then, he saw
defendant swerve into the bicycle lane, which violated N.J.S.A. 39:4-88(b). At
that point, the officer had a reasonable and articulable suspicion that defendant
committed a motor vehicle violation. This was a sufficient basis to stop
defendant in his vehicle.
When the officer approached defendant's vehicle and spoke with him, he
detected the faint smell of alcohol, his eyes were glassy and his face red.
Defendant oddly extinguished his cigarette on the center console. All of these
circumstances gave Officer Perkins a reasonable and articulable suspicion that
defendant may be intoxicated.
Officer Perkins was well within the law to broaden his inquiry. The
officer inquired about defendant's driver's license and learned that the
Pennsylvania license was suspended.
Because Officer Perkins was not certified to administer the field sobriety
tests, Officer Lemmo, who was certified, came to the scene. At the de novo
hearing in the Law Division, defendant argued for the first time that the motor
vehicle stop was delayed unreasonably because Officer Lemmo did not arrive
for thirty minutes. The State argued that the videotape showed otherwise.
"[A]n investigative stop becomes a de facto arrest when 'the officers'
conduct is more intrusive than necessary for an investigative stop.'" Dickey,
152 N.J. at 478 (quoting United States v. Jones, 759 F.2d 633, 636 (8th Cir.
1985)). Even brief detentions can be unreasonable if they do not use the "least
intrusive investigative techniques reasonably available to verify or dispel
suspicion in the shortest period of time reasonably possible." State v. Davis,
104 N.J. 490, 504 (1986).
Even if the timeframe were as defendant suggests, there was no
constitutional violation. Officer Perkins had an independent and reasonable
articulable suspicion that defendant was intoxicated based on defendant's breath,
appearance and speech. He was then investigating the suspected motor vehicle
violation of driving while intoxicated. "Much as a 'bright line' rule would be
desirable, in evaluating whether an investigative detention is unreasonable,
common sense and ordinary human experience must govern over rigid criteria."
Dickey, 152 N.J. at 476-77 (quoting United States v. Sharpe, 470 U.S. 675, 685
(1985)). The thirty-minute delay was not unreasonable under the circumstances.
We also agree there was no constitutional violation by asking defendant
to step out of his car to perform sobriety tests. This was, at best, only a de
minimis intrusion on defendant's privacy interest. See State v. Smith, 134 N.J.
599, 610 (1994). There was a reasonable basis for testing based on defendant's
appearance, odor and conduct.
Defendant argues there was no probable cause for the DWI arrest.
"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." State v. Moore, 181 N.J.
40, 46 (2004) (alterations in original) (quoting Schneider v. Simonini, 163 N.J.
336, 361 (2000)). "In determining whether there was probable cause to make
an arrest, a court must look to the totality of the circumstances . . . ." State v.
Basil, 202 N.J. 570, 585 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Defendant failed the field sobriety tests and was arrested. We agree with
the trial court that the totality of the circumstances—defendant's appearance,
odor, actions and sobriety testing—gave the officers a well-grounded suspicion
that defendant was driving while intoxicated.
The record provided ample evidence supporting defendant's conviction for
DWI. N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle under the
influence of intoxicating liquor. State v. Cryan, 363 N.J. Super. 442, 455 (App
Div. 2003). "In a case involving intoxicating liquor, 'under the influence' means
a condition which so affects the judgment or control of a motor vehicle operator
'as to make it improper for him to drive on the highway.'" Ibid. (quoting
Johnson, 42 N.J. at 165). See Oliveri, 336 N.J. Super. at 251-52 (sustaining
DWI conviction based on officer's observations of watery eyes, slurred and slow
speech, staggering, inability to perform field sobriety tests, and defendant's
admission to drinking alcohol earlier in the day).
A defendant's demeanor, physical appearance, slurred speech, and
bloodshot eyes, together with an odor of alcohol, are sufficient to sustain a DWI
conviction. See State v. Bealor, 187 N.J. 574, 588-89 (2006); see also Oliveri,
336 N.J. Super. at 251-52. Judge Appleby did not err in finding that evidence
satisfied these standards beyond a reasonable doubt and in convicting defendant
of driving while intoxicated, N.J.S.A. 39:4-50.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).