NJ DWI Law revised 2023

     NJ DWI Law revised 2023 

      On December 22nd the Governor signed changes to the DWI law (NJSA 39:4-50) which did three pretty important things. 

 

1.Permits plea bargaining in DWIs. Certified Municipal Court Attorneys can better help clients

 

2. Allows an arrested defendant to get an interlock device immediately and then get credit for it if sentenced later. 

 

3 extended the life of the 2019 penalty revisions which were due to expire. 

 

     The bill signed was 

 ASSEMBLY, No. 4800

 

https://pub.njleg.state.nj.us/Bills/2022/A5000/4800_S2.PDF

As amended and reported by the committee, Assembly Bill No. 4800 concerns the use of ignition interlock devices (IID) for drunk driving offenses. 

      P.L.2019, c.248 revised certain provisions of this State’s drunk driving statutes. This legislation: 

1) reduced the length of driver’s license forfeiture for convictions of drunk driving and refusing to submit to a breathalyzer and increased the period of required IID installation for these offenses; 

2) required the license of a drunk driver who attests to not owning, leasing, or operating a motor vehicle to be forfeited during the required period of IID installation; 3) imposed certain IID compliance requirements to be met before an IID may be removed after the required period of installation; and 4) removed enhanced penalties for drunk driving and refusal convictions occurring in a school zone. The legislation is scheduled to expire on the first day of the fifth year after the effective date, which is January 1, 2024. 

       The bill extends the expiration date of P.L.2019, c.248 so that the legislation will expire on the first day of the tenth year next following the effective date of P.L.2019, c.248, which is January 1, 2029. The amended bill also clarifies that only the amendatory language and supplemental sections of P.L.2019, c.248 will expire on January 1, 2029, and the text of the statutes amended in P.L.2019, c.248 will return to the text that was in effect prior to the enactment of P.L.2019, c.248.   

        Under the amended bill, the amendatory language contained in this bill will also expire on January 1, 2029. The intent is for both the amendatory language and supplemental sections of P.L.2019, c.248, and the amendatory language in this bill, to expire on the same date. 

          In addition, the bill provides that a person who has been arrested for certain driving while intoxicated (DWI) offenses may, upon arrest and prior to any conviction, voluntarily install an IID in one motor vehicle the person owns, leases, or principally operates, whichever the person most often operates, and request from the Motor Vehicle Commission (MVC) a driver’s license with a notation stating that the person is not to operate a motor vehicle unless it is equipped with an IID. 

     The bill provides that the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order. 

The amended bill provides that a person who has been arrested for a first DWI offense whose blood alcohol concentration (BAC) was at least 0.08% but less than 0.10%, who was otherwise under the influence of intoxicating liquor, or whose BAC was 0.10% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is not to be subject to a fine as set forth under current law. 

Under the bill, a person who has been arrested for a first DWI offense whose BAC was 0.15% or higher who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine. The bill provides that a person is not entitled to the credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person. 

        The bill further provides that a person who has been arrested for a second, third or subsequent DWI violation who voluntarily installs an IID and obtains a driver’s license with the appropriate notation pursuant to the amended bill’s provisions is to receive a one day credit against the period that the person is required to forfeit the right to operate a motor vehicle under current law for every two days that the person has an IID installed and a driver’s license with the appropriate notation and is not to be subject to a fine as set forth under current law. A person is not entitled to a credit against the period that the person is required to forfeit the right to operate a motor vehicle if the violation of R.S.39:4-50 resulted in serious bodily injury to another person. 

        Under the bill, the fine waiver for first, second, third, or subsequent offenses only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction 

        Under prior law, for a first DWI offense, a person whose BAC was 0.15% or higher is required to forfeit the right to operate a motor vehicle for a period of four to six months following installation of an IID and the IID is to remain installed for nine to 15 months after the period of license forfeiture. Under the amended bill, the person is required to forfeit the right to operate a motor vehicle for a period of three months following installation of an IID, and the IID is to remain installed for 12 to 15 months after the period of license forfeiture. 

         Further, the amended bill provides that notwithstanding any judicial directive to the contrary, upon recommendation by the prosecutor, a plea agreement for a DWI or refusal to submit to a breathalyzer offense is authorized under the appropriate factual basis consistent with any other violation of Title 39 of the Revised Statutes (the State’s motor vehicle code) or offense under Title 2C of the New Jersey Statutes (the State’s criminal code). The bill further provides that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months. 

               Under the bill, in addition to any penalty imposed under current law, in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended. 

Finally, the bill provides that nothing in the bill is to be construed to preclude the installation of an IID for a violation of Title 39 of the Revised Statutes under the appropriate factual basis. 

        As amended and reported by the committee, Assembly Bill No. 4800 (1R) is identical to Senate Bill No. 3011 (3R), which was also amended and reported by the committee on this date. 

           COMMITTEE AMENDMENTS 

The committee amendments: 

1) provide that when a person requests a notated license from the MVC, the request is required to include a copy of the interlock installer’s certification and a copy of a court order indicating the date of installation and the related charges, to be submitted no later than seven days after the date of the court order; 

2) clarify that the fine waiver for a person who voluntarily installs an IID and obtains a driver’s license with the appropriate notation only applies if the person possessed a valid New Jersey driver’s license in good standing at the time of the offense and maintained a license in good standing until the date of conviction;  

 

3) provide that in sentencing a person convicted of a first violation of operating a commercial motor vehicle with a BAC of 0.04% or more whose BAC was at least 0.04% but less than 0.08%, the court is required to order the installation of an ignition interlock device in one non-commercial motor vehicle owned, leased, or principally operated by the offender, whichever the offender most often operates, which is to remain installed during the period that the person’s commercial motor vehicle driving privilege is suspended; 

4) provide that a person who enters into a plea agreement for operating or permitting another to operate a motor vehicle while under the influence of a narcotic, hallucinogenic, or habit-producing drug will be required to forfeit the right to operate a motor vehicle for a period of not less than six months; and 

 

KENNETH  VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 
2053 Woodbridge Ave.,Edison, NJ 08817
(Phone) 732-572-0500 (Fax)    732-572-0030 website: www.njlaws.com

 

 

Court rejects here challenge to Dwi and refusal State v Simmons

 STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
KEVIN SIMMONS,

Defendant-Appellant.  

Before Judges Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2022- 002.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3438-21

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Following a trial de novo in the Law Division, defendant Kevin Simmons was convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50; and refusal to submit to a chemical breath test (refusal), N.J.S.A. 39:4-50.4a.1 He was sentenced to pay appropriate fines, costs, and penalties. Defendant now appeals from the June 3, 2022 order, contending the State did not meet its burden of proving the violations and seemingly challenges the municipal court's credibility findings. Discerning no evidentiary errors or grounds to reject the Law Division's decision, we affirm.

I.
The trial de novo was conducted on a review of the municipal court record.

R. 3:28-8(a). The municipal court trial was held on October 18, 2021 and December 22, 2021. The State's case was presented through the testimony of the arresting officer, New Jersey State Police (NJSP) Trooper Israel Dela Rosa- Vargas (Dela Rosa). Defendant elected not to testify but called two witnesses on his behalf: Joseph M. Tafuni, of Pinnacle DWI Consulting Group, who was qualified as an expert in Alcotest machines and field sobriety testing; and defendant's friend, Hazima Robinson.

1 The municipal court dismissed a third summons, parking in a no-parking zone, N.J.S.A. 39:4-138(g), for lack of prosecution.

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Around 1:26 a.m. on March 9, 2020, Dela Rosa was dispatched to milepost 152 along the northbound lanes of the Garden State Parkway (GSP) in response to a reported medical emergency. Upon his arrival, Dela Rosa observed a car on the grass off the shoulder. The driver's side door was open. Defendant was "sleeping and snoring" behind the wheel. When he approached the car, Dela Rosa detected an odor of alcohol emanating from inside the vehicle. He did not recall whether the engine was running, or whether the keys were in the ignition. There were no other occupants in the car.

Dela Rosa awakened defendant and requested his credentials. Defendant was "alert and oriented" but he was mumbling and slurring his speech, rendering him "incoherent." Defendant claimed he was not involved in an accident. He told Dela Rosa he pulled over to the side of the road and was awaiting a ride. Dela Rosa then asked defendant to exit the vehicle and submit to standard field sobriety testing. Because defendant "had difficulty standing and walking," Dela Rosa "assisted [him] out of the vehicle."

Defendant failed the horizontal gaze nystagmus (HGN) test. Dela Rosa explained that before issuing the test, he permitted defendant to sit on the hood of his car because he had difficulty standing. Defendant was unable to follow

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Dela Rosa's repeated instructions "to keep his head straight" and could not track an object with his eyes. Defendant's eyes were "bloodshot and watery."

Dela Rosa arrested defendant "for suspicion of DWI" based on: his slurred and incoherent speech; "slow movement of hands"; "failure to follow instructions"; "inability to stand or walk without assistance"; "bloodshot and watery eyes"; the odor of alcohol emanating from the car and defendant's breath; and the "off-the-road" location of defendant's car. Dela Rosa advised defendant of his Miranda2 rights and drove him to the Bloomfield barracks. While in transit, Dela Rosa noticed an odor of alcohol in his patrol car "that was not previously present."

At the station, defendant was asked to perform the walk-and-turn and one- legged-stand balance tests. In view of "defendant's level of intoxication and [the] unsafe nature of the highway on the weekend," Dela Rosa had not asked defendant to perform these tests on the side of the GSP. Defendant failed both tests.

Dela Rosa again advised defendant of his Miranda rights. Defendant did not respond to each question posed and refused to sign the Miranda form. Dela Rosa then asked defendant additional questions pursuant to the standard operator

   

2 Miranda v. Arizona, 384 U.S. 436 (1966). 4

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questionnaire. Defendant responded that he had diabetes, but denied that he was sick, under a doctor's care, or taking medicine, including insulin. Defendant acknowledged that he had consumed "six to eight beers." He refused to answer any other questions but agreed to give a breath sample.

Dela Rosa testified that he personally placed defendant under "continuous and uninterrupted" observation for the requisite twenty minutes before administering the initial Alcotest. Defendant failed to provide a sufficient volume of breath to obtain a reading. Two more tests were attempted, but defendant provided insufficient breath samples each time. Defendant "did not look like he was . . . trying to provide a good sample." After the third test, Dela Rosa concluded defendant refused to provide a sample. Defendant was issued summonses and released when his ride arrived.

A retired NJSP breath test coordinator, Tafuni challenged the reliability of the field sobriety tests and doubted Dela Rosa's testimony that he had observed defendant for twenty minutes prior to conducting the first Alcotest. Tafuni testified that the HGN test was unreliable because Dela Rosa only checked for one indicator, "smooth pursuit," and did not check for resting nystagmus, meaning whether "the eyes [are] moving as you're staring at them." Nor did he check for a third indicator, whether "the eyes [are] able to track

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equally." Tafuni opined that the balance tests performed at the station were unreliable because defendant was "more than sixty pounds overweight." He also concluded, based on information set forth in an NJSP database, that Dela Rosa performed a "control solution change" at 2:05 a.m. on the night of the incident and, as such, the trooper could not have observed defendant continuously in the twenty minutes preceding administration of the Alcotest.

Robinson testified that she knew defendant for ten years. About two hours before Dela Rosa was dispatched to the scene, defendant called Robinson and requested a ride home. According to Robinson, defendant said "he was tired . . . and had pulled over." She further testified that defendant was a truck driver and had been driving for "forty-eight, fifty hours."

Following Robinson's testimony, the court questioned Tafuni concerning the timing of the solution change. The State recalled Dela Rosa in rebuttal. Dela Rosa testified that he did not change the solution while observing defendant prior to administering the Alcotest. Defendant then recalled Tafuni who stood by his testimony and stated that "the foundational document" would clarify the issue.

On the second day of trial, the State recalled Dela Rosa. Referencing the "solution change document" moved into evidence as S-21, Dela Rosa said he

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initiated the solution change at approximately 1:08 a.m. – before he was dispatched to the scene. Further, once the process is initiated, the machine completes the solution change on its own. Dela Rosa explained that the timestamp from the database reflected the time the solution change was completed.

During oral argument before the municipal court, defendant challenged Dela Rosa's credibility and the trooper's multiple requests to review his report to refresh his recollection. He therefore contended the State failed to prove the DWI and refusal charges. Following argument, the court reserved decision.

On January 24, 2022, the municipal court rendered a thorough oral decision, detailing its factual and credibility findings in view of the governing law, and found defendant guilty of DWI and refusal. Crediting Dela Rosa's testimony, the court found, "based upon the totality of circumstances at the scene on the [GSP]," which included defendant's "demeanor and physical condition," and Dela Rosa's observations, "there was sufficient probable cause to arrest defendant," whose physical condition "was subsequently corroborated by [his] performance on the field sobriety tests at the police station." The court was not persuaded that defendant called Robinson for a ride before the trooper arrived

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at the scene. Nor was the court convinced there were any flaws in the administration of the Alcotests.

On the same date, the court sentenced defendant to the minimum fines and penalties for both offenses. Because defendant's driver history abstract reflected a prior DWI conviction, the court sentenced defendant as a second-time offender on the DWI violation. The court stayed imposition of sentence pending receipt of documentation that defendant's prior conviction had been vacated.

In his ensuing appeal to the Law Division, defendant maintained the State failed to prove the DWI and refusal charges. Oral argument was held before Judge Christopher S. Romanyshyn on May 25, 2022. Defendant argued there was insufficient proof that he had operated the car while intoxicated because he: was not observed driving his car; was asleep for an indeterminate time when Dela Rosa arrived at the scene; and had called Robinson to pick him up. Citing Tafuni's testimony, defendant also challenged Dela Rosa's conclusion that defendant refused to submit to the Alcotest. After oral argument, the judge reserved decision.

On June 3, 2022, Judge Romanyshyn issued a comprehensive written opinion, rejecting defendant's contentions. The judge conducted a thorough

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review of the evidence presented to the municipal court and made independent factual findings and legal conclusions in view of the controlling law.

Regarding the DWI charge, Judge Romanyshyn found the "direct and circumstantial evidence" adduced in this case "demonstrate[d] both that . . . defendant was under the influence of alcohol and 'operating' a vehicle within the DWI statute." Recognizing Dela Rosa "might not have been able to recall minute details with particularity," the judge found the trooper "provided a sufficiently complete and vivid account of defendant's behavior and performance during the tests and at the scene."

Recounting "the strong circumstantial evidence" that defendant "recently drove the car," the judge rejected his contention that the State failed to prove operation within the meaning of the DWI statute. In doing so, the judge rejected defendant's reliance on State v. Daly, 54 N.J. 122 (1973). The judge elaborated:

Unlike Daly, where [the] defendant was found asleep in his car outside a tavern, with the engine running, in this case defendant was found on the shoulder of the [GSP], which is a limited access roadway. That circumstance alone, without any admission by defendant, is sufficient to infer operation. As the municipal judge observed, defendant had to get there somehow and there was no evidence of any other operator or passenger. The driver door was open, and . . . defendant was sitting in the driver seat, asleep and snoring.

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The judge further found defendant was "the sole occupant of that vehicle," and admitted "he 'pulled over' and had consumed 'a couple of beers.'"

Turning to the refusal charge, Judge Romanyshyn found unavailing defendant's argument that he was not afforded additional attempts to complete the breathalyzer test. The judge reasoned:

[Defendant] was not entitled to additional attempts after the officer gave him three attempts at the test. Once the officer determined that the defendant was refusing to comply with the test by failing to give an adequate breath sample – both in terms of quantity (all attempts) and duration (second attempt only) – absent other reasons there was enough evidence to charge him with refusal.

Citing our decision in State v. Monaco, 444 N.J. Super. 539, 551 (App. Div. 2016), the judge found: "Defendant asserted no other reason he could not provide adequate breath samples."

Nor was the judge persuaded that Dela Rosa lied about the timing of the solution change. Meticulously citing the trial record, Judge Romanyshyn credited Dela Rosa's testimony, which the judge found was corroborated by S- 21.

Regarding defendant's sentence, the judge was satisfied that defendant's prior DWI conviction "was vacated on post-conviction relief." Accordingly, defendant was sentenced as a first-time offender to forfeiture of his driver's

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license until an ignition interlock device was installed, twelve hours at an Intoxicated Driver Resource Center, and appropriate fines and penalties. This appeal followed.

Citing the transcript of the municipal court's decision, defendant raises the following points for our consideration:

POINT [I]

THE COURT BELOW IMPROPERLY FOUND THE ST A TE'S ONL Y WITNESS CREDIBLE DESPITE

INCONSISTENT AND TESTIMONY .

POINT [II]

CONTRADICTORY

THE STATE DID NOT PROVE THE DEFENDANT VIOLATED EITHER N.J.S.A 39:4-50 OR N.J.S.A. 39:4-[5]0.4A BEYOND A REASONABLE DOUBT.

II.
Well-settled principles guide our review. On appeal from a municipal

courttotheLawDivision,thereviewisdenovoontherecord. 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). This deference is especially appropriate when a municipal court's "credibility findings . . . are . . . influenced by matters such as observations of the character and demeanor of witnesses and common

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human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Kuropchak, 221 N.J. 368, 382 (2015). Indeed, the municipal court has the unique opportunity to assess live testimony. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005).

Unlike the Law Division, however, we do not independently assess the evidence. Locurto, 157 N.J. at 471. In an appeal from a de novo hearing on the record, 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). Our standard of review of a Law Division judge's decision is limited to determining only whether the findings made by the judge "could reasonably have been reached on sufficient credible evidence present in the record." Locurto, 157 N.J. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)).

The rule of deference is more compelling where, as here, the municipal and Law Division judges made concurrent findings. Id. at 474. We accord great deference to the consistent conclusions of two other courts. State v. Stas, 212 N.J. 37, 49 n.2 (2012). "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." Locurto, 157 N.J. at 474.

        

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Having considered defendant's contentions in view of the applicable law, and our deferential standards of review, we conclude they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by Judge Romanyshyn in his well-reasoned decision. We add only the following remarks.

As a preliminary matter, it appears defendant challenges the municipal court's credibility findings, which are not before us on this appeal. See Oliveri, 336 N.J. Super. at 251. To the extent defendant challenges the Law Division judge's findings, we are not persuaded. Because Judge Romanyshyn's factual and credibility findings were supported by "sufficient credible evidence present in the record," we discern no reason to disturb his cogent decision. See Locurto, 157 N.J. at 472 (quoting Barone, 147 N.J. at 615).

  

Affirmed.

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Recent case- State v. Luka- court permitted community-caretaking

 Recent case- State v. Luka- court permitted community-caretaking 

Defendant appealed his conviction for DWI. The municipal court initially granted defendant's motion to suppress evidence after hearing oral arguments but without taking testimony. The state appealed the suppression order to the trial court, which denied defendant's motion to limit the state's supplementation of the record and granted the state's request for an evidentiary hearing. Based on its credibility determinations, the trial court denied defendant's motion to suppress evidence. The trial court found that the arresting officer had lawfully initiated an investigative detention of defendant based on information reported from defendant's wife that indicated defendant may have been driving while intoxicated. The trial court also ruled that the officer's encounter with defendant was permissible under the community-caretaking doctrine. On appeal, the court affirmed the trial court's judgment and defendant's conviction. The court ruled that the officer could rely on information from defendant's wife, relayed through a dispatcher, to form reasonable suspicion that defendant may have been driving while intoxicated. The court also found that defendant's wife had facts that supported her suspicion, including defendant's prior incidents of intoxicated driving and GPS data that showed defendant had stopped at two liquor stores. The court also agreed that the stop was authorized under the community-caretaking doctrine as defendant's wife was concerned that he was driving while intoxicated and posing a danger to himself and others on the road. The court found that the initial moments of the encounter between defendant and the arresting officer were necessary for the officer to check on defendant's welfare.

source https://www.law.com/njlawjournal/almID/1683919836NJA030221/

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.

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.
DOUGLAS LUKA,

Defendant-Appellant. _________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0302-21

Argued March 7, 2023 – Decided May 12, 2023 Before Judges Geiger and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 6265.

PER CURIAM
Defendant Douglas Luka appeals from his conviction for driving while

intoxicated (DWI). The municipal court judge granted defendant's motion to suppress after hearing argument but without taking testimony. On the State's appeal to the Law Division, Judge John M. Deitch denied defendant's motion to limit the State's supplementation of the record and convened an evidentiary hearing. After making credibility assessments, Judge Deitch denied defendant's motion to suppress. He concluded the arresting officer had lawfully initiated an investigative detention based on information reported by defendant's wife, Karen.1 In addition to finding the investigative detention was lawfully based on reasonable articulable suspicion to believe defendant was driving while intoxicated, Judge Deitch found the encounter was also authorized under the community-caretaking doctrine. After carefully reviewing the record in view of the governing legal principles, we affirm.

I.
On May 17, 2020, defendant was arrested by Westfield Police Officer

Ryan Weiss and charged with DWI, N.J.S.A. 39:4-50. Defendant filed a motion

1 Because defendant and his wife share the same surname, we use her first name to avoid confusion. We mean no disrespect in doing so.

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to suppress in the Westfield Township Municipal Court. In October 2020, the municipal court judge heard oral argument on the motion; no testimony was taken. The judge granted defendant's motion and dismissed the complaint.

The State, now represented by the county prosecutor, appealed to the Superior Court, Law Division. The prosecutor supplemented the record with additional documents in accordance with Rule 3:24(d). Defendant filed a motion to limit the supplementation of the record. Judge Deitch heard arguments on the motion on April 7, 2021, and ruled that the State was entitled to supplement the record.

Judge Deitch convened an evidentiary hearing on defendant's motion to suppress on July 22, 2021. On July 28, 2021, the judge issued a written opinion and order denying the motion to suppress and reinstating the complaint against defendant. The matter was remanded to the municipal court for trial.

On September 9, 2021, defendant pled guilty to the charge, preserving his right to challenge the constitutionality of the stop leading to his arrest. The municipal court judge imposed a three-month license suspension, twelve hours of Intoxicated Driver Resource Center (IDRC) training, and a fine in addition to court costs and other assessments. The sentence was stayed pending this appeal.

Defendant raises the following contentions for our consideration: 3

A-0302-21

POINT I

THE LAW DIVISION ERRED IN CONSIDERING FACTS THAT OCCURRED AFTER THE STOP IN ORDER TO JUSTIFY THE POLICE ACTION.

POINT II

THE STOP VIOLATED [DEFENDANT]'S CONSTITUTIONAL RIGHTS.

A. THE STATE DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION OF A PARTICULARIZED CRIME TO JUSTIFY THE WARRANTLESS SEIZURE.

B. THE STATE DID NOT HAVE A BASIS TO JUSTIFY THE COMMUNITY CARETAKING EXCEPTION FOR THE WARRANTLESS SEIZURE.

II.
We discern the following pertinent facts from the record. Officer Weiss

was the sole witness to testify at the suppression hearing. The State also introduced Officer Weiss's body worn camera (BWC) recording of the encounter; the officer's dashboard camera recording; the BWC recording of the officer who spoke to Karen; and the audio recording of Karen's initial call to police.

Officer Weiss testified that on May 15, 2020, at approximately 7:50 p.m., he received a "be on the lookout" (BOLO) alert from the dispatcher concerning

 

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a brown GMC Acadia, advising that "the driver was possibly driving [while] intoxicated." Officer Weiss responded to the bulletin and began heading in the direction of defendant's last reported location.

Officer Weiss was advised that Karen had called police because she was concerned that her husband was driving while intoxicated. Officer Weiss did not personally communicate with Karen; the information she provided to police was transmitted to him by the dispatcher. Officer Weiss also was told another officer was with Karen and that she was providing updated locations of defendant's vehicle using a GPS phone app.

Based upon the information provided, Officer Weiss went to defendant's residence to check if he was there. After confirming that defendant's vehicle was not at his residence, Officer Weiss continued down defendant's street and turned onto an intersecting street. Officer Weiss saw defendant's vehicle parked along the curb.2 He positioned the police car fifteen to twenty feet behind defendant's vehicle and radioed the dispatcher, advising of the vehicle's location. At that point, Officer Weiss activated his overhead emergency lights. Officer Weiss explained that the reason for doing so was twofold: "One is to alert the

2
running and his taillights were illuminated.

5

The video recordings in the record confirm that defendant's vehicle was

A-0302-21

vehicle in question that a police action is occurring,[3] and the second is to alert any pedestrian or vehicle traffic in the roadway that a police action is occurring and to drive more cautiously."

Officer Weiss approached the front passenger side of defendant's vehicle. He observed defendant in the driver's seat "with his head slouched forward, [and] his face pointed down towards his lap." Officer Weiss announced, "Police Department," and then tapped repeatedly on the passenger-side window and shined his flashlight into the vehicle to elicit a response from defendant. Defendant eventually responded and lowered the passenger window. Officer Weiss spoke to defendant, noting "his responses were slow and slurred" and his eyes were "bloodshot" and "watery."

Judge Deitch accepted Officer Weiss' testimony, finding him to be a credible witness. The judge added that the officer's testimony was corroborated by the video recordings in evidence.

The judge further explained that he listened to the audio recording of Karen's initial call to the police department.4 The judge recounted that:

3 The State does not dispute that defendant was subject to a Fourth Amendment seizure at the moment the officer activated the police vehicle's overhead lights.

4 The judge ruled that there was no need for the prosecutor to play the recording in court.

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[Karen] reported that she might need some help. While she was not one hundred percent sure, she believed that her husband was drinking and driving. Her basis for this belief was that he had done this in the past and, on this day, [Karen] had been following him using the OnStar GPS device in his car and he had stopped at two liquor stores.

During the call, [Karen] continued to update the dispatched as to the location of defendant's vehicle . . . . [Karen] stated that she was "very concerned about [defendant]" and that he had been "driving around for hours." [Karen] stated that she believed [d]efendant had seen her while she was following him, but that he was out of her view on South Avenue. At some point, [Karen], who was driving on South Avenue, pulled into a parking lot and was advised by dispatch that an officer would be sent to her location.

At the hearing, the judge viewed the BWC recording of the officer who had responded to the location where Karen was parked. Judge Deitch found Karen "to be a credible reporter who is obviously deeply concerned for the health and safety of her husband and others on the road." The judge concluded it was reasonable for the police to accept her report and act upon it.

III.
We begin our analysis by acknowledging the governing legal principles.

In an appeal from a Law Division judge's decision following de novo review of a municipal court order, our inquiry then focuses on the determination made in the Law Division. State v. Locurto, 157 N.J. 463, 470 (1999). Furthermore, we

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do not "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Id. at 472 (quoting State v. Barone, 147 N.J. 599, 615 (1997)). Our review "focuses on whether there is 'sufficient credible evidence . . . in the record' to support the trial court's findings." State v. Robertson, 228 N.J. 138, 148 (2017) (omission in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The Law Division judge's legal conclusions and the legal consequences that flow from established facts, however, are not entitled to special deference; they are reviewed de novo. Ibid.

Turning to substantive legal principles, "[a] motor vehicle stop by a police officer, no matter how brief or limited, is a 'seizure of persons' under both the Federal and State Constitutions." State v. Smith, 251 N.J. 244, 258 (2022) (internal quotation marks omitted) (quoting State v. Scriven, 226 N.J. 20, 33 (2016)). "To justify such a seizure, 'a police 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.'" Ibid. (quoting Scriven, 226 N.J. at 33–34).

Reasonable suspicion "requires 'some minimal level of objective justification for making the stop.'" State v. Amelio, 197 N.J. 207, 211–12 (2008) (quoting State v. Nishina, 175 N.J. 502, 511 (2003)). "[A]n investigative

         

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detention 'may not be based on arbitrary police practices, the officer's subjective good faith, or a mere hunch.'" State v. Chisum, 236 N.J. 530, 546 (2019) (quoting State v. Coles, 218 N.J. 322, 343 (2014)). "The suspicion necessary to justify a stop must not only be reasonable, but also particularized." Smith, 251 N.J. at 258 (quoting Scriven, 226 N.J. at 37). "A motor vehicle stop that is not based on a 'reasonable and articulable suspicion is an "unlawful seizure," and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule.'" Ibid. (quoting Chisum, 236 N.J. at 546).

"To determine whether reasonable and articulable suspicion exists, a court must evaluate the totality of the circumstances and 'assess whether the facts available to the officer at the moment of the seizure . . . warrant[ed] a [person] of reasonable caution in the belief that the action taken was appropriate.'" Ibid. (alterations and omission in original) (quoting State v. Alessi, 240 N.J. 501, 518 (2020)). A court must consider the "whole picture" rather than taking each fact in isolation. State v. Nelson, 237 N.J. 540, 554–55 (2019) (quoting State v. Stovall, 170 N.J. 346, 361 (2002)).

Importantly for purposes of this appeal, an officer need not personally observe illegal conduct to develop reasonable and articulable suspicion to stop an individual; rather, the officer may rely upon "adequate facts from a reliable

        

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informant" relayed by a dispatcher to establish a reasonable suspicion that an individual may have committed or is about to commit an offense. State v. Crawley, 187 N.J. 440, 457 (2006). In Crawley, our Supreme Court found it to be "common sense" that a police dispatcher who was "provided adequate facts from a reliable informant to establish a reasonable suspicion that defendant was armed . . . had the power to delegate the actual stop to officers in the field." Ibid. Moreover, in United States v. Hensley, the United States Supreme Court held that an arresting officer may stop a wanted person based on a dispatch without possessing the specific information that formed the probable cause to issue the dispatch. 469 U.S. 221, 230–31 (1985).

In determining the weight to attribute to information provided to police, we emphasize the distinction between known sources and anonymous sources. "Generally speaking, information imparted by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster." State v. Basil, 202 N.J. 570, 586 (2010). "Thus, an objectively reasonable police officer may assume that an ordinary citizen reporting a crime, which the citizen purports to have observed, is providing reliable information." Ibid.

    

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"Our courts have distinguished between an identifiable citizen, who is presumed to be reliable, and an anonymous informer whose reliability must be established." Ibid. (citing State v. Davis, 104 N.J. 490, 506 (1986)). "The distinction is 'grounded in common experience' because we assume that an ordinary citizen 'is motivated by factors that are consistent with law enforcement goals.'" Ibid. The distinction is grounded not just in common experience but also in common sense. Ibid. "[W]hen a tip is made in-person, an officer can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning." Ibid. (quoting United States v. Palos-Marquez, 591 F.3d 1272, 1275 (9th Cir. 2010)).

Our Supreme Court has "previously considered the constitutionality of a vehicular stop where the officer's suspicion was not based on an observed traffic violation." Alessi, 240 N.J. at 518. In State v. Amelio, a daughter reported that her father was driving while intoxicated. 197 N.J. 207, 210 (2008). She provided the make, color, and license plate of her father's vehicle. Ibid. The Court held that report provided reasonable articulable suspicion to make a stop. Id. at 209. In so finding, the Court relied on the detailed description of the vehicle and the fact that the daughter, whose identity was known to police,

   

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"exposed herself to criminal prosecution if the information she related to dispatch was knowingly false." Id. at 214. Those facts "lent credibility to the information she conveyed to the dispatcher." Alessi, 240 N.J. at 519 (citing Amelio, 197 N.J. at 214).

Applying these foundational principles to the present matter, we are satisfied that the totality of the circumstances known prior to the investigative detention amply satisfy the reasonable articulable suspicion standard.5 As in Amelio, the call to police came from an identified citizen who was intimately familiar with defendant. Karen reported that, while she was not one hundred percent sure, she believed her husband was drinking and driving. When asked by the dispatcher why she thought he was intoxicated, Karen responded, "he's done this before." She further explained that she had been following his movements using the OnStar GPS device in his car and he had stopped at two liquor stores. She also reported that he was driving fast.

Karen told the dispatcher that she was very worried about her husband and that he had been "driving around for hours." Karen provided the make and

5 As we have noted, we accept that defendant's vehicle was seized for Fourth Amendment purposes the moment the officer activated the overhead lights on the police vehicle. Information learned thereafter, including the officer's observation that defendant was slumped over in his vehicle, play no part in our determination that the investigative detention was lawfully initiated.

   

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model of defendant's vehicle, as well as its current OnStar location. When police located defendant's vehicle, it was not in the driveway of his home, but rather parked on a curb a block-and-a-half away with the engine running. The totality of these circumstances establishes reasonable and articulable suspicion that defendant had been operating the vehicle while intoxicated.

We also agree with Judge Deitch that the encounter was authorized under the community-caretaking doctrine, providing an independent basis to deny defendant's suppression motion. That doctrine, first enunciated by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433 (1973), acknowledges that police officers "often are called on to perform dual roles." State v. Diloreto, 180 N.J. 264, 276 (2004). "The community-caretaking doctrine recognizes that police officers provide a wide range of social services outside of their traditional law enforcement and criminal investigatory roles." Scriven, 226 N.J. at 38 (internal quotation marks omitted) (quoting State v. Edmonds, 211 N.J. 117, 141 (2012)).

The doctrine provides an independent justification for intrusions into a citizen's liberty that would otherwise require a showing of probable cause or reasonable and articulable suspicion of criminal behavior. Diloreto, 180 N.J. at 277–76. Our Supreme Court has held the community-caretaker role permits

     

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officers to "check on the welfare or safety of a citizen who appears in need of help on the roadway without securing a warrant or offending the Constitution." Scriven, 226 N.J. at 38.

The doctrine entails a fact-sensitive, two-part inquiry. First, a court must ask whether the officer has reacted to an objectively reasonable community concern. Id. at 39 (stating officers must have an "objectively reasonable basis" to stop a vehicle to provide aid or check a motorist's welfare). This concern must serve as a distinct motivation for the officer's conduct, divorced from any desire to further a criminal investigation. Id. at 38–39. In other words, community caretaking may not serve as a "pretext" for a warrantless intrusion into a citizen's liberty that does not satisfy another warrant exception. State v. Bogan, 200 N.J. 61, 77 (2009). However, the "divorce" between the two police functions "need only relate to a sound and independent basis for each role, and not to any requirement for exclusivity in terms of time or space." Ibid. (quoting New Hampshire v. D'Amour, 834 A.2d 214, 217 (N.H. 2003)). The State is required to prove the officers were acting objectively reasonably. Scriven, 226 N.J. at 38–39.

Second, a reviewing court must discern whether the actions taken by the officer pursuant to his or her community caretaking role remained within the

    

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limited scope of that function. Ibid. For example, an officer's "community caretaking inquiry must not be 'overbearing or harassing in nature.'" State v. Drummond, 305 N.J. Super. 84, 89 (App. Div. 1997) (quoting State v. Davis, 104 N.J. 490, 503 (1986)).

Regarding the first part of the Scriven test, police clearly acted reasonably in responding to Karen's report. Police received a credible report from defendant's wife, who was intimately familiar with his substance abuse history. She reported that he left the house after a fight with his daughter, was driving around for hours—sometimes at speeds well above the speed limit—and stopped at two liquor stores. Given her knowledge of defendant's prior conduct, coupled with his actions that day, she was concerned that her husband was driving while intoxicated, endangering himself and others.

As to the second prong of the Scriven test, the initial steps taken by Officer Weiss were limited to the justifiable need to check on defendant's welfare. The officer parked behind defendant's vehicle, activated his lights to alert both defendant and those on the road that a stop was occurring, and proceeded to tap on defendant's window to get his attention. He then asked defendant if he was okay and explained that his wife was concerned about him.

    

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We are satisfied in these circumstances that police were authorized under their community-caretaking role to check on defendant's condition.

IV.
Finally, we address defendant's contention the Law Division judge erred

in supplementing the record to include information about events that occurred after Officer Weiss pulled behind defendant's vehicle. As we have noted, for purposes of determining whether there was reasonable and articulable suspicion to justify an investigative detention, we have focused solely on the circumstances known to police before Officer Weiss activated the overhead lights of his police vehicle. See supra note 5. Our separate and distinct consideration of the community-caretaking doctrine requires that we consider the manner in which the welfare check was conducted. See Scriven, 226 N.J. at 38–39.

Judge Deitch acted well within his discretion in expanding the limited record that had been developed at the municipal court. We recognize that as a general matter, the Law Division reviews an appeal of a suppression order rendered by a municipal court de novo based on the record made in the municipal court. R. 3:24(d). In this instance, the municipal court did not convene an evidentiary hearing. Furthermore, Rule 3:24(d) expressly provides:

 

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In cases in which the Attorney General or county prosecutor did not appear in the municipal court, the State shall be permitted to supplement the record and to present any evidence or testimony concerning the legality of the contested search and seizure. The defendant shall be permitted to offer related evidence in opposition to the supplementary evidence offered by the State.

[R. 3:24(d) (emphasis added).]
As the county prosecutor did not appear in municipal court, the State was

authorized to supplement the record with appropriate evidence. Ibid. We reiterate that in affirming Judge Deitch's finding there was reasonable and articulable suspicion to believe defendant had been driving while intoxicated, we only considered the circumstances known to police at the moment the Fourth Amendment seizure occurred, that is, when Officer Weiss activated the overhead lights of his police vehicle.

To the extent we have not addressed them, any remaining arguments raisedbydefendantlacksufficientmerittowarrantdiscussion. R.2:11-3(e)(2). Affirmed. We remand solely for the trial court to vacate the stay of

 

defendant's sentence. We do not retain jurisdiction.

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