STATE OF NEW JERSEY v. STANLEY BUTLER

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1098-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STANLEY BUTLER,

     Defendant-Appellant.
__________________________

                   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).

PER CURIAM
      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.

                                        I.

      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 vehicle.

      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

identification.




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      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




1
    "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.
1999)).



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"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

(Alcotest) test.

      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,


2
   Nystagmus is the involuntary rhythmic oscillation or movement of the
eyeballs. Stedman's Medical Dictionary 1350 (28th ed. 2006).


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"look[ed] like he[] [was] going to fall over." Defendant was convicted of all the

charges.3

      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



3
   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).
4
  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.


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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
            SOBRIETY TESTING.

            POINT III. THE COURT BELOW FAILED TO
            APPLY       THE   TOTALITY   OF  THE
            CIRCUMSTANCES     TEST,  WHICH, WHEN

5
  The court made similar findings for each of the other charges: unsafe lane
change, refusal to submit a breath sample and driving while suspended.
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            APPLIED, REVEALS NO PROBABLE CAUSE TO
            ARREST APPELLANT.

            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.

                                     II.

      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).


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      "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)).




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      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


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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


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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


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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,


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 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).

      Affirmed.




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