NOT FOR PUBLICATION WITHOUT THE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-2776-19
STATE OF NEW JERSEY,
Submitted January 6, 2021 – Decided February 23, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Municipal Appeal No. 20-
John J. Caleca, III, attorney for appellant.
James L. Pfeiffer, Acting Warren County Prosecutor,
attorney for respondent (Dit Mosco, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
Following a trial de novo in the Law Division, defendant Michael Lindsey
appeals his convictions for driving while intoxicated (DWI), N.J.S.A. 39:4-50,
refusal to submit to a chemical breath test, N.J.S.A. 39:4-50.4a, and violating
implied consent to a chemical breath test, N.J.S.A. 39:4-50.2. Defendant
THE STATE FAILED TO PROVE [DEFENDANT]
"OPERATED" THE VEHICLE OR HAD THE
INTENT TO "OPERATE" THE VEHICLE WHILE
UNDER THE INFLUENCE OF ALCOHOL.
THE STATE FAILED TO PROVE DEFENDANT
WAS UNDER THE INFLUENCE OF ALCOHOL,
THEREFORE, DEFENDANT SHOULD NOT HAVE
BEEN ARRESTED FOR DWI.
On appeal from a municipal court to the Law Division, the review is de
novo on the record. R. 3:23-8(a)(2). The Law Division judge must make
independent "findings of fact and conclusions of law but defers to the municipal
court's credibility findings." State v. Robertson, 228 N.J. 138, 147 (2017).
Our assessment of the Law Division judge's factual findings is limited to
whether the conclusions "could reasonably have been reached on sufficient
credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162
(1964). Unlike the Law Division, which conducts a trial de novo on the record,
R. 3:23-8(a)(2), we do not independently assess the evidence. State v. Locurto,
157 N.J. 463, 471 (1999). The rule of deference is compelling where, such as
here, the municipal and Law Division judges made concurrent findings. Id. at
474. "Under the two-court rule, appellate courts ordinarily should not undertake
to alter concurrent findings of facts and credibility determinations made by two
lower courts absent a very obvious and exceptional showing of error." Ibid.
(citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)). "Therefore, appellate
review of the factual and credibility findings of the municipal court and the Law
Division 'is exceedingly narrow.'" State v. Reece, 222 N.J. 154, 167 (2015)
(quoting Locurto, 157 N.J. at 470). However, the Law Division'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), in which case we exercise plenary review,
State v. Handy, 206 N.J. 39, 45 (2011).
"A person who operates a motor vehicle while under the influence of
intoxicating liquor . . . or operates a motor vehicle with a blood alcohol
concentration of 0.08% or more by weight of alcohol in the defendant's blood
. . . " is guilty of DWI. N.J.S.A. 39:4-50 (a). We broadly interpret "operates"
to include more than driving. See State v. Tischio, 107 N.J. 504, 513 (1987);
State v. Mulcahy, 107 N.J. 467, 478-79 (1987). Hence, operation may be
established by a variety of circumstances, including "actual observation of the
defendant driving while intoxicated," "observation of the defendant in or out of
the vehicle under circumstances indicating that the defendant had been driving
while intoxicated," or defendant's admission. State v. Ebert, 377 N.J. Super. 1,
10-11 (App. Div. 2005). Furthermore, "[o]peration may be proved by any direct
or circumstantial evidence – as long as it is competent and meets the requisite
standards of proof." State v. George, 257 N.J. Super. 493, 497 (App. Div. 1992)
(concluding the defendant had an intent to operate his idling truck parked in an
empty parking lot at 11:45 p.m. with the headlights and windshield defroster on
while he was in the driver's seat talking to a female pedestrian).
We recently sustained a DWI conviction against an intoxicated defendant
sleeping in his vehicle with the engine running while parked in a convenience
store parking lot. State v. Thompson, 462 N.J. Super. 370, 373-75 (App. Div.
2020). We concluded, "[t]here is no doubt that an intoxicated . . . defendant
behind the wheel of a motor vehicle with the engine running is operating the
vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not
observed in motion; it is 'the possibility of motion' that is relevant." Id. at 375
(quoting State v. Stiene, 203 N.J. Super. 275, 279 (App. Div. 1985)); see also
State v. Sweeney, 40 N.J. 359, 360-61 (1963) (holding operation of a vehicle
established where the defendant "enter[ed] a stationary vehicle, on a public
highway or in a place devoted to public use, turn[ed] on the ignition, start[ed]
and maintain[ed] the motor in operation and remain[ed] in the driver's seat
behind the steering wheel, with the intent to move the vehicle").
Defendant argues that the Law Division "erred as matter of law in finding
[he] operated, had the intent to operate[,] or was in actual physical control of
[his] vehicle." We disagree.
At approximately 2:26 a.m., New Jersey State Police Troopers Eric
Guzman and Marcello Muchuca saw defendant standing outside a vehicle with
flashing lights on, parked on the side of Interstate 80 in Allamuchy Township,
adjusting his pants. At this point, the troopers activated their vehicle's
emergency lights, whereupon defendant raised his hands and then walked back
to enter into his vehicle. Neither trooper testified seeing defendant drive his
vehicle. Muchuca testified that defendant's engine and headlights were on as he
and Guzman exited their vehicle to talk to defendant. No one else was with
Defendant advised the troopers that after coming from Mount Airy
Casino, he stopped his vehicle because he had to urinate on the side of the road.
He said he had a drink "hours ago." After the troopers administered the standard
field sobriety test (SFST), they arrested and charged him with DWI and refusal
to submit to a chemical breath test.
The Law Division made a finding independent of the municipal court that
based upon sufficient, credible evidence in the record–the trooper's testimony
and the motor vehicle recording depicting their roadside confrontation,
questioning, and field sobriety tests on defendant–the State proved beyond a
reasonable doubt defendant's operation and intoxication under N.J.S.A. 39:4- -
50(a). We conclude that defendant had driven his vehicle and parked it along
the side of the highway and had the intent to operate his vehicle when he was
approached by the troopers.
Intoxication under N.J.S.A. 39:4-50 may be proven by evidence of a
defendant's physical condition. State v. Kashi, 360 N.J. Super. 538, 545 (App.
Div. 2003). The State need not prove "that the accused be absolutely 'drunk' in
the sense of being sodden with alcohol. It is sufficient if the presumed offender
has imbibed to the extent that his physical coordination or mental faculties are
deleteriously affected." State v. Nemesh, 228 N.J. Super. 597, 608 (App. Div.
1988) (quoting State v. Emery, 27 N.J. 348, 355 (1958)). In State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993), we upheld a DWI conviction, finding
that slurred speech, disheveled appearance, bloodshot eyes, alcoholic odor on
the breath, and abrasive demeanor were evidence of the defendant's intoxication.
See also State v. Moskal, 246 N.J. Super. 12, 20-21 (App. Div. 1991) (holding
that defendant's flushed face, "drooping and red" eyes, admission of drinking,
and the strong odor of alcohol established probable cause for arrest).
Recognizing that "sobriety and intoxication are matters of common
observation and knowledge, New Jersey has permitted the use of lay opinion
testimony to establish alcohol intoxication." State v. Bealor, 187 N.J. 574, 585
(2006). Moreover, it is well established that a police officer's subjective
observation of a defendant is a sufficient ground to sustain a DWI conviction.
See State v. Cryan, 363 N.J. Super. 442, 455-56 (App. Div. 2003).
Defendant argues the Law Division "erred as a matter of law in finding
that [he] was under the influence of alcohol based on the . . . record." In
particular, he contends the State's only evidence of his alleged intoxication was:
(1) his admission "that he had one drink over his guess that he had the drink an
hour and one half prior"; (2) "the walk[-]and[-]turn and the one[-]leg stand were
given, instructions explained, demonstrated[,] and graded by Trooper Guzman
even though he was not qualified to [do so] because he was not certified at the
time"; and (3) "the observations of the troopers." Again, we are unpersuaded by
Guzman testified that defendant slurred his speech, his face appeared
slightly pale, and his eyes were bloodshot and watery. He stated defendant's
movement were "slow and fumbling" when he produced his driving
documentation, and he "fumbled around in his, in his vehicle, . . . searching for
the . . . handle to the door, until . . . he finally opened it." Guzman also detected
the odor of an alcoholic beverage emanating from defendant.
Muchuca started the administration of SFST while Guzman observed.
Only Muchuca was certified to administer the SFST. During the first test, the
horizontal gaze nystagmus (HGN), Muchuca testified that defendant swayed
while he stood. Guzman also saw that defendant continuously leaned for
balance, with his feet wide apart for stability. Defendant's speech during the
HGN was "shouting, rambling, very incoherent[,]" while also whining and
Guzman administered the walk-and-turn test, testifying that defendant
interrupted him while he gave instructions and during the test. At one point,
defendant laughed during the instructions and objected to how he was
positioned. Defendant also constantly stepped off the starting position and
began the test before being told to do so, contrary to instructions. Muchuca
stated that defendant failed the test.
Next, Muchuca administered the one-leg stand test. After being instructed
on how to perform the test, defendant repeatedly asked how to complete it.
Further, when performing the test, he swayed while balancing, dropped his foot,
and extended his arms greater than six inches for balance. Concluding that
defendant also failed this test, Muchuca believed he "was definitely under the
influence of alcohol."
Defendant was placed under arrest for suspicion of driving while
intoxicated. As he was led to the troopers' vehicle, defendant swayed and leaned
on Guzman's hand. Guzman noted that once defendant entered the vehicle, its
interior began to smell of alcohol. At the troopers' barracks, Guzman observed
that defendant continued to sway as he walked while Guzman held his back for
balance. After being read the standard Attorney General Statement for Motor
Vehicle Operators, defendant refused to submit to the Alcotest in order to
provide breath samples.
In its oral decision, the Law Division made a finding independent of the
municipal court that the record established the State proved beyond a reasonable
doubt defendant was operating a vehicle while intoxicated based on his: physical
condition, odor of alcohol, and inability to follow instructions and perform the
SFST. Based on the principles governing our review, we see no reason to
disagree. There was sufficient, credible evidence in the record that defendant
was intoxicated when he operated his vehicle or had the intent to operate his
To the extent that we have not addressed any of defendant's arguments it
is because we have concluded that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).