SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0414-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL P. WENDLER,

Defendant-Appellant.

_________________________

Submitted February 28, 2019 – Decided May 22, 2019

Before Judges Simonelli and Whipple.

On appeal from Superior Court of New Jersey, Law 

Division, Gloucester County, Municipal Appeal No. 

11-16.

Weir & Partners, LLP, attorneys for appellant 

(Georgios Farmakis, on the briefs).

Charles A. Fiore, Gloucester County Prosecutor, 

attorney for respondent (Dana R. Anton, Senior 

Assistant Prosecutor, and Monica A. Bullock, on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Daniel P. Wendler appeals from the Law Division's August 15, 

2017 order entered after a judge, conducting a trial de novo, found him guilty of 

driving while intoxicated (DWI), N.J.S.A. 39:4-50(a); operating a motor vehicle 

with a controlled dangerous substance, N.J.S.A. 39:4-49.1; and possession of 

fifty grams or less of marijuana, N.J.S.A. 2C:35-10(a)(4). For the following 

reasons, we affirm.

We discern the following facts from the record. On April 3, 2015, Officer 

Marc Stevens was patrolling near a Walmart parking lot in Monroe Township. 

Stevens saw a silver pick-up truck in the parking lot with the engine running and 

parked away from other vehicles. When Stevens approached the vehicle, he saw 

defendant slumped over the steering wheel. Stevens lit the vehicle with his 

spotlight to wake defendant. Defendant did not react when Stevens shined his

light in the car. 

Stevens approached the vehicle and woke defendant up by banging on the 

car window and shouting through an open rear window. Stevens told defendant 

who he was and why he was there, but defendant was unresponsive to questions, 

instead he was fumbling through paperwork in his car. Defendant eventually 

rolled down his window and appeared dazed, confused, and incoherent. When 
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Stevens asked for defendant's identification, defendant handed him several store 

receipts. 

Stevens asked defendant to exit the vehicle so he could perform field 

sobriety tests, though Stevens smelled no alcohol coming from defendant. 

Stevens administered the horizontal gaze nystagmus test, and it was 

inconclusive. Defendant did not properly perform either the one-leg-stand test 

or the walk-and-turn test. Stevens arrested defendant, placed him in the police 

vehicle, and then searched defendant's car for defendant's insurance and 

registration documents. Stevens looked in the center console, where he found a 

small bag of suspected marijuana. Stevens found defendant's documentation in 

the glovebox. The police brought defendant to the police station and gave him 

an Alcotest, which yielded a reading of 0.0. 

The police charged defendant with the aforementioned motor vehicle and 

disorderly person offenses. Defendant moved to suppress, challenging the 

initial seizure of the marijuana based on lack of probable cause. After a hearing, 

on November 10, 2015, the municipal court judge denied the motion because he

found Stevens credible and found probable cause unnecessary because Stevens 

was performing a community caretaking function when he found defendant 

slumped over in the vehicle. The judge found, thereafter, the officer had the 
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authority to search the car for license and insurance documents under State v. 

Keaton, 222 N.J. 438 (2015). The matter was tried in municipal court on July 

19, 2016, and defendant was found guilty. The municipal court judge found 

proof of intoxication beyond a reasonable doubt under the observation standard

enunciated in State v. Bealor, 187 N.J. 574 (2006), and the presence of marijuana 

in the car.

The matter was tried de novo on August 10, 2017, in the Law Division. 

Judge Kevin T. Smith issued a thorough, forty-one page written opinion on 

August 15, 2017, denying defendant's motion to suppress, and finding defendant 

guilty of operating a vehicle with a controlled substance, driving while 

intoxicated, and possession of fifty grams or less of marijuana. This appeal 

followed.

Defendant raises the following points on appeal:

I. STANDARD OF REVIEW.

II. THE COURT ERRED IN DENYING 

APPELLANT'S MOTION TO SUPPRESS EVIDENCE 

RECOVERED AFTER AN UNCONSTITUTIONAL 

SEARCH AND SEIZURE.

A. THE SEARCH AND SEIZURE WAS 

UNCONSTITUTIONAL BECAUSE THERE 

WAS NO WARRANT AND NO FACTS GAVE 

RISE TO A REASONABLE SUSPICION OF 

CRIMINAL ACTIVITY.
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B. THE POST-ARREST SEARCH OF 

APPELLANT'S VEHICLE WAS 

INDEPENDENTLY UNCONSTITUTIONAL.

III. EVEN IF THE EVIDENCE WAS NOT 

SUPPRESSED, THE COURT ERRED IN 

AFFIRMING APPELLANT'S DWI CONVICTION.

A. THE STATE, WHICH PROVIDED NO 

EXPERT OPINION OF INTOXICATION, 

FAILED TO SATISFY ITS BURDEN IN 

PROVING APPELLANT WAS INTOXICATED 

BEYOND A REASONABLE DOUBT.

B. APPELLANT WAS NOT OPERATING A 

MOTOR VEHICLE AT THE TIME OF HIS 

ARREST.

IV. THE COURT ERRED IN AFFIRMING 

APPELLANT'S CONVICTION UNDER [N.J.S.A.]

39:4-49.1.

When we review the Law Division's de novo review of a municipal appeal 

we consider whether there is sufficient, credible evidence present in the record 

to uphold the findings of the Law Division. State v. Johnson, 42 N.J. 146, 162 

(1964). Just as the Law Division is not as well situated as the municipal court 

to determine credibility, neither are we, and thus, we do not make new credibility 

findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). Indeed, "[w]e do not 

weigh the evidence, assess the credibility of the witnesses, or make conclusions 

about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Nevertheless,
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"[a] trial court'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).

With this standard in mind, we reject defendant's arguments and affirm 

his conviction for the reasons expressed by Judge Smith. We only add the 

following comments.

Defendant argues the court erred in denying his motion to suppress the 

evidence resulting from the search. Defendant asserts Stevens's initial actions 

were not in furtherance of community caretaking, but were the beginning of a 

criminal investigation of alleged criminal trespassing. 

"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." State v. Edmonds, 211 N.J. 117, 

141 (2012) (quoting State v. Bogan, 200 N.J. 61, 73 (2009)). To determine 

whether an action falls under the community-caretaking doctrine, the officer 

should be engaged in behavior "totally divorced from the detection, 

investigation, or acquisition of evidence relating to the violation of a criminal 

statute" and "objectively reasonable." State v. Vargas, 213 N.J. 301, 315, 318 

(2013) (quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). After 
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reviewing the record, we conclude there was sufficient credible evidence 

Stevens was engaged in community-caretaking. 

Testifying at the suppression hearing, Stevens acknowledged after he 

identified defendant at the scene, he recalled defendant was prohibited from 

entering that particular Walmart's property. However, Stevens was not familiar 

with defendant's car nor was his initial interaction with defendant based on 

suspicion of trespassing. As the trial court found Stevens to be a credible 

witness and credited his version of the facts, we see no reason to disturb this 

finding. 

Stevens saw a running car with the driver slumped over the steering wheel. 

The driver did not initially react when Stevens shined his light in the car. Given 

these facts, it was objectively reasonable for Stevens to be concerned defendant 

might have been ill or injured, intoxicated, or otherwise in need of aid, and his 

attempt to rouse defendant was justified under the community-caretaking 

doctrine.

While Stevens's initial acts were for community-caretaking, at some point 

the stop transformed into an investigatory stop. An investigatory stop is based 

on "[r]easonable suspicion[,] . . . a lower standard than the probable cause 

necessary to sustain an arrest." State v. Stovall, 170 N.J. 346, 356 (2002). Based 
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on the totality of the circumstances, an officer must have articulable reasons or 

a particularized suspicion of criminal activity to justify an investigatory stop. 

State v. Davis, 104 N.J. 490, 504 (1986). When an officer commands a driver 

to exit a vehicle, this constitutes a seizure. State v. Smith, 134 N.J. 599, 609 

(1994). New Jersey courts have adopted the United States Supreme Court's 

view, articulated in Pennsylvania v. Mimms, 434 U.S. 106 (1977), that when an 

officer has already detained a driver, the request to step out of a vehicle is de 

minimis. Smith, 134 N.J. at 618 (agreeing with Mimms permitting an officer to 

order a driver to exit a vehicle, but declining to extend the per se rule to 

passengers).

Stevens approached defendant sleeping in a running car and observes that 

upon waking, defendant seemed "dazed and confused" and was "incoherent at 

the time." Considering the totality of the circumstances, we agree with the trial 

court: Stevens had reasonable suspicion to suspect that the individual might be 

intoxicated and about to drive and this justified the investigatory stop. 

If an officer gives a defendant the opportunity to present his vehicle 

credentials, but the defendant is unable or unwilling to do so, an officer may 

conduct a search of the vehicle for those credentials. Keaton, 222 N.J. at 442-

43. When searching the vehicle for evidence of ownership, the officer must 
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confine his search "to the glove compartment or other area where a registration 

might normally be kept in a vehicle[.]" State v. Hamlett, 449 N.J. Super. 159, 

172-73 (App. Div. 2017) (alteration in original) (quoting State v. Jones, 195 N.J. 

Super. 119, 122-23 (App. Div. 1984)). At the suppression hearing, defendant 

testified Stevens never asked for vehicle credentials. Stevens testified he did 

ask for credentials, and defendant handed him receipts. The trial court credited 

Stevens's version of the facts. As instructed by Locurto, 157 N.J. at 470-71, we 

defer to the factual determination of the trial court that Stevens asked defendant 

for his credentials and defendant was unable to provide them. 

Stevens searched the center console armrest in addition to the glove 

compartment of defendant's vehicle. There was no evidence Stevens knew in 

advance there was marijuana in the car, and he was not searching the car 

specifically for marijuana. Stevens was permitted to search for vehicle 

credentials in the places were the documents might reasonably be kept, such as 

a center console, and he found marijuana in plain view. Accordingly, we discern 

no error in the judge's determination.

We reject defendant's argument that the State cannot prove he was under 

the influence of a narcotic, hallucinogenic, or habit-producing drug at the time

of his arrest. N.J.S.A. 39:4-50(a) provides in pertinent part: "a person who 
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operates a motor vehicle while under the influence of intoxicating . . . narcotic, 

hallucinogenic or habit-producing drug" shall be subject to certain escalating 

penalties. "[T]he State's burden of proof unquestionably is beyond a reasonable 

doubt." Bealor, 187 N.J. at 586.

To prove whether a defendant was under the influence, the State must 

show "beyond a reasonable doubt that, at the time of his arrest, defendant 

suffered from 'a substantial deterioration or diminution of the mental faculties 

or physical capabilities[.]'" Id. at 590 (quoting State v. Tamburro, 68 N.J. 414, 

421 (1975)). A motorist is under the influence when his or her use of drugs has 

caused a substantial diminution of faculties and capabilities, Tamburro, 68 N.J. 

at 421, which has altered his or her coordination and mental faculties so as to 

make it unsafe for him or her to drive. State v. DiCarlo, 67 N.J. 321, 328 (1975). 

"[C]ompetent lay observations of the fact of intoxication, coupled with 

additional independent proofs tending to demonstrate defendant's consumption 

of narcotic, hallucinogenic or habit-producing drugs as of the time of the 

defendant's arrest, constitute proofs sufficient to allow the fact-finder to 

conclude, without more, that the defendant was intoxicated." Bealor, 187 N.J. 

at 577. "The statute does not require that the particular narcotic be identified." 

Tamburro, 68 N.J. at 421. Nor does it "define the quantum of narcotics, 
11 A-0414-17T1

hallucinogens or habit-producing drugs required in order to violate its 

prohibition." Bealor, 187 N.J. at 589. "Instead, as with alcohol intoxication, 

the issue is simple: was the defendant under the influence of a narcotic, 

hallucinogen or habit-producing drug while he operated a motor vehicle." Ibid.

(quotation omitted). Here, although there was no blood test to show the 

defendant had actually consumed marijuana, the presence of marijuana and the 

officer's other observations were sufficient proofs to sustain the conviction.

We also reject defendant's contention he was not driving at the time of 

arrest, and thus, he cannot be convicted of driving under the influence, N.J.S.A. 

39:4-50(a). For the purpose of N.J.S.A. 39:4-50(a), "operates or drives" has 

been interpreted to occur when an individual "enters a stationary vehicle" in a 

public place, turns on the ignition and remains at the steering wheel with the 

intent to drive. State v. Sweeney, 40 N.J. 359, 360-61 (1963). Intent to drive 

can be inferred by the fact finder based on the evidence presented. Id. at 361. 

The trial court credited Stevens's testimony that when he approached 

defendant's vehicle, it was running and the keys were in the ignition. There was 

no evidence presented showing defendant intended to walk home or was within 

walking distance of his home. Further, no evidence suggested defendant was 

sleeping until he was no longer intoxicated. See State v. Daly, 64 N.J. 122, 125 
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(1973) (the court determined the defendant had been sleeping in his running car 

over an hour without driving and thus intent to drive could not be proven). 

Given these facts, the trial judge did not err in finding defendant was "operating 

a motor vehicle" under the meaning of N.J.S.A. 39:4-50(a).

Defendant also contends he cannot be convicted of N.J.S.A. 39:4-49.1 for

operating a motor vehicle on any highway while knowingly in possession of a 

controlled dangerous substance because a parking lot is not a highway. N.J.S.A. 

39:1-1 defines a "highway" as "the entire width between the boundary lines of 

every way publicly maintained when any part thereof is open to the use of the 

public for purposes of vehicular travel." Defendant argues a private parking lot 

cannot be a highway under N.J.S.A. 39:1-1. While there is little authority 

addressing the question of what highway means under N.J.S.A. 39:1-1, we have 

said parking lots are sometimes "quasi-public place[s]." Brown v. Mortimer, 

100 N.J. Super. 395, 405 (App. Div. 1968) ("While privately owned, the parking 

lot was clearly a quasi-public place and subject to applicable provisions of the 

Motor Vehicle Act."); State v. Gillespie, 100 N.J. Super. 71, 75 (App. Div. 1968) 

("The operation of a motor vehicle while under the influence of intoxicating 

liquor in a quasi-public place involves extraordinary danger of injury to the 
13 A-0414-17T1

driver or other members of the public or damage to their property, just as does 

driving in that condition on a public highway.").

Here, the Walmart parking lot was "open to the use of the public for the 

purposes of vehicular travel." N.J.S.A. 39:1-1. Whether a parking lot is open 

to the public for the purposes of travel is a fact sensitive inquiry and does not 

lend itself to broad rules. We are satisfied that under the circumstances of this 

case, the record supports the conclusion here.

Defendant's other arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.