State v. MacUkState v. MacUk
The opinion of the court was delivered by
The defendant was convicted in the Jackson Township Municipal Court of operating an automobile while under the influence of intoxicating liquor, a violation of the motor vehicle act.
N. J. S. A.
39:4 — 50 (a). The Ocean
The evidence for the prosecution showed that on the late afternoon of June 13, 1968, Jackson Township police headquarters received a telephone call that there had been an accident at a given location. Two policemen were separately dispatched to the scene. Fo sign of an accident was found, but an unoccupied car was observed at an angle off the road, partly in a ditch. The doors were locked. Officer Gross, the first to arrive, noticed a man, who proved to be the defendant, sitting on the porch of a nearby house. In response to the officer’s question, he admitted he had been driving the ear and identified himself. The officer observed that he had a very noticeable odor of alcohol on his breath, that he swayed as he was standing and while walking and that his speech was slurred. (Defendant had emigrated to this country some 10 years earlier and spoke with an accent). He admitted he had been drinking. His general demeanor was otherwise calm and cooperative.
Lieutenant Applegate arrived while Gross was talking to defendant, overheard most of the conversation and made the same observations as to his condition. Both officers testified that defendant was under the influence of alcohol.
Officer Gross then asked defendant to accompany him to headquarters. In view of what followed, the assumption is
Officer Gross then read defendant the standard form of information and warning preparatory to administering the breath test. It reads as follows:
I have reason to believe that you have operated a motor vehicle in violation of Section 39:41-50 of the New Jersey Statutes and I have placed you under arrest for violation of this drinking-driving law.
I request that you submit to the taking of the samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
A record of the test will be made and a copy given to you when the test is completed.
In addition, you may have a person or physician of your own choosing take samples of your breath, blood or urine.
No test will be taken from you forcefully or against physical resistance.
If you refuse to submit to the test, a report will be forwarded to the Director of Motor Vehicles which may result in a loss of your driving privileges for a period of six months.
The officer testified that he asked defendant whether he would submit to the test and that the answer was in the affirmative. Admittedly again no Miranda warnings were given.
The drunkometer breath examination was administered by Lieutenant Applegate, who, it was established, was a competent operator of the device, which, it was likewise established, was in proper working order. The test produced a reading of 0.18% by weight of alcohol in the defendant’s blood, which exceeds the figure of 0.15% specified by the statute, N. J. S. A. 39 :4 — 50.1 (3), as creating a presumption “that the defendant was under the influence of intoxicating liquor.” Following the test a summons and complaint were issued.
Defendant’s proofs need not be detailed (he was represented by counsel). It is sufficient to note that he admitted operating the car and having drunk “two shots” at his friend’s house, that he claimed he became ill while driving and that he pulled to the side of the road in order to go to the nearby house to telephone his daughter to come and take him home. He also said that he did not want to “blow the balloon” in the drunkometer, but that the Lieutenant said he must. He did not testify that he did not understand the officers’ questions, that he was in such a condition as not to appreciate their import nor that any physical force was used to compel him to take the test.
The evidence was clearly adequate to support the general verdict of guilt beyond a reasonable doubt. Defendant’s on-the-scene admission that he had driven the car to the place where it was found supplied sufficient proof of operation. The officers’ observation of his physical symptoms and their opinion that he was under the influence of alcohol (which must be taken to mean that in their opinion he had imbibed to the extent that his physical coordination was
There is no merit to defendant’s contention that the arrest at the scene without a warrant was invalid, even though neither police officer actually saw defendant driving the car. The general rule in this state is that a valid arrest without a warrant requires the offense to be committed in the “presence” of the officer unless the offense is punishable by imprisonment for more than a year in state prison.
State v. Doyle,
42
N. J.
334, 349 (1964). In fact, the motor vehicle act specifically requires a violation thereof to occur in the officer’s presence to substantiate a warrantless arrest.
N. J. S. A.
39 :5-25. But “ ‘presence’ sums up the requirement that the officer know of the event by the use of his senses” (
State v. Smith,
37
N. J.
481, 495 (1962),
cert.
denied, 374
U. S.
835,
The State’s case was rendered practically impregnable by the drunkometer reading of 0.18%. As previously indicated, this finding exceeded the 0.15% statutory presump
Defense counsel very correctly conceded at oral argument that the investigatory, on-the-scene questioning earlier set forth did not require first giving the
Miranda
warnings.
Miranda v. Arizona, supra
(384
U. S.
at 477-478,
The
Miranda
argument should be considered in the framework of New Jersey’s statutes and procedure relating to drunken driving. At the outset it is to be borne in mind that motor vehicle violations are not “crimes” in this state, but only petty offenses. There is no right to indictment or to a jury under any circumstances and such matters are
Prior to 1966, the two pertinent sections of the motor vehicle act dealing with drunken driving were N. J. S. A. 39:4-50 and 50.1. The first designated operation “while under the influence of intoxicating liquor” as an offense and prescribed the penalties. Generally speaking, for a first offense a fine of not less than $200 nor more than $500, or. imprisonment for not more than three months in the county jail or workhouse, or both, was prescribed, plus forfeiture of the right to operate a motor vehicle over the state’s highways for a period of two years. For a subsequent violation within 10 years of the previous conviction, the penalty was a mandatory three month sentence together with a 10 year operation forfeiture.
The second cited section dealt with chemical analyses to determine the percentage of alcohol in a driver’s blood. It impliedly authorized the use of such scientific tests of the defendant’s “blood, urine, breath or other bodily substance” and assumed the admissibility of the results, stating that they “shall give rise to the following presumptions”:
1. If 0.05% or less by weight of alcohol in the defendant’s blood — a presumption that defendant was not under the influence of intoxicating liquor.
2. If in excess of 0.05% but less than 0.15% —■ no presumption one way or the. other, but the test result may be considered with other competent evidence in determining guilt or innocence.
The section went on to say that it should not he construed to require evidence of the amount of alcohol in the blood to be presented nor as limiting the introduction of any other competent evidence and closed with this important sentence • “No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant.” This sentence rendered nugatory in this particular situation Evidence Rule 25, N. J. 8. 2A:84A-19, adopted in 1960, providing that “no person has the privilege [against self-inerimination] to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics or his physical or mental condition.”
This court in State v. Blair, 45 N. J. 43 (1965), reiterated that certain types of examination or inspection, including fingerprinting, photographing, examination of the body of a person for identifying characteristics and drunkometer tests and blood tests, were beyond the privilege against self-incrimination because non-testimonial in character. We specifically held therefore, in a drunken driving case, where a sample of blood had been taken for alcohol testing, that a defendant did not have to be informed that, because the results may be used against him, he can refuse to allow the test, although, by reason of the last sentence of N. J. S. A. 39.:4-50.1, the State had to establish that the defendant gave express consent for the taking of the blood specimen.
L.
1966, c. 141 and 142, enacted June 18 of that year and effective on the 91st day thereafter, made significant changes in the drunken driving provisions. In the first place, a new and lesser offense was created — operation of a motor vehicle “while
* *
* ability to operate * * * is
impaired
by the consumption of alcohol” — with lesser penalties (no jail term is authorized) and license forfeiture periods.
C.
141, sec. 1(b);
N. J. S. A.
39:4-50(b). (Emphasis added).
Chapter 142, importantly, struck from N. J. S. A. 39:4-50.1 the former requirement of consent to or request by the defendant for any chemical analysis or specimen with respect to driving “under the influence”. (And no such requirement was contained in N. J. S. A. 39 :4 — 50.6 with respect to driving “while impaired”.)
Section 2 of the chapter, N. J. S. A. 39:4-50.2, is the so-called “implied consent” provision, relating only to the taking of samples of breath. It reads:
(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of section 39:4-50 of the Revised Statutes.
(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.
(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.
(e) No ekemieal test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.
It would appear that the provision was limited to a breath test and was made necessary because affirmative cooperation is required of the person being examined to blow up the balloon”, whereas this is not so in the case of a test by use of a blood sample. It also may be noted that the implied consent provision applied where the police officer has arrested the driver upon reasonable cause to believe that he was either “under the influence” or that his driving ability was only “impaired”.
Section 4 of chapter 142, N. J. S. A. 39:4-50.4, authorizes an additional six month license revocation penalty (see Bean v. Strelecki, 101 N. J. Super. 310 (App. Div.), certif. denied, 52 N. J. 491 (1968)), administratively imposed by the Director of Motor Vehicles, when a driver refuses to participate in a breath test.
Two days after chapters 141 and 142 were approved and a week after it handed down Miranda, the United States Supreme Court decided Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In that ease the defendant was injured in an automobile accident and taken to a hospital. While there he was arrested on adequate probable cause for driving a vehicle under the influence of intoxicating liquor. He refused, on the advice of counsel, to consent to the taking of a blood sample. At the direction of a police officer, the sample was withdrawn anyway by a physician at the hospital in a simple, medically acceptable manner. Testing of the blood indicated intoxication and evidence thereof was introduced ar the trial over defendant’s objection on constitutional grounds. No mention is made of any state statute relating to the subject. The conviction was affirmed.
The court, by Mr. Justice Brennan, held (1) the taking of a blood sample under such conditions did not violate the due process claus.e; (2) it did not violate the, privilege against
* * * We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial. (388 U. S. at 227-228,87 S. Ct. at 1932, 18 L. Ed. 2d at 1158).
See also
Gilbert v.
California, 388
U. S.
263, 267,
The upshot of our statutory provisions and their history and the holdings of the United States Supreme Court is this. There is a clear legal right to require a motor vehicle operator, arrested on probable cause for driving "under the influence” or "while impaired”, to submit to a chemical test of bodily substances to determine the amount of alcohol in his blood, or, for that matter, to a physical coordination test. A breath test must, of course, be admininistered in accordance with the requirements of
N. J. S. A.
39:4^50.2 and a blood test in a medically acceptable manner and environment. The latter may be used on any occasion, but will be especially' useful where the person is physically unable or has refused to take a breath test. Since such
This leaves the matter of the applicability of
Miranda
to the short, limited pre-test questioning at police headquarters. We could dispose of this issue on the basis of harmless error in that the interrogation produced no more inculpatory information than had the previous permissible on-the-scene investigatory inquiries. However, because the issue is substantial and there is need to give guidance to lower courts, we should pass the harmless error ground and reach the merits. The Appellate Division in
State v.
Zucconi,
supra
(93
N. J. Super.
380), held that the requirement did not apply in the motor vehicle violation there before it. When the ease reached this court, we found determination of the question unnecessary to the decision and declined to consider it. 50
N. J.
361, 364. We later held that the doctrine of
Miranda
did not apply in license suspension or revocation proceedings before the Director of Motor Vehicles, the imposition of punitive sanctions not being involved.
David v. Strelecki,
51
N. J.
563 (1968). Now, with the problem squarely before us, we are of the opinion that, in view of the absence of any indication to the contrary by the
The question has arisen in other jurisdictions, with some variety in result, but the seeming majority of the cases indicates the view we espouse. Examples of decisions to that effect are
State v. Tellez,
6
Ariz. App.
251, 431 P.
2d
691, 25
A. L. R.
3d 1063, 1070-1071 (Ct. App. 1967);
State v. Bliss, Del.,
238
A. 2d
848 (1968);
State v. Pyle,
19
Ohio St. 2d
64, 249
N. E. 2d
826 (1969),
cert. den.
396
U. S.
1007,
The reasons for our view may be briefly summarized. Eirst, the type of police questioning involved in motor vehicle violations is not ordinarily the lengthy, incommunicado inquisition seeking to “sweat out” a confession at which
Miranda
was aimed. Generally it encompasses only simple standard inquiries for the purpose of a necessary accident or violation police report, even though some of the information obtained may go beyond the so-called investigatory phase and be inculpatory as to the violation. The fundamental reason for the
Miranda
rules is just not present. (We are not speaking of questioning about a full-blown crime of some kind which may have come to light as a resqlt of the stopping of an automobile for a motor vehicle violation.) Secondly, the violations involved are not serious enough in their consequences to warrant the time consuming interference which would result to effective law enforcement and the expeditious administration of justice in petty offense cases. Thirdly, as a purely practical matter, it would be utterly impossible .to provide sufficient lawyers to consult with the number of
One other phase of the case must be mentioned, although it was not raised by the defendant. As was earlier said, a fine of $500 was imposed in addition to the mandatory jail term and license revocation. We find no warrant in N. J. S. A. 39:4-50 (a) for the imposition of a fine in a second offender case occurring within 10 years of the first conviction, that authority being limited to violations by first offenders and second offender violations happening more than 10 years after the first. The judgment must, therefore, be modified to vacate the fine.
The judgment of the Appellate Division as so modified is affirmed.
For affirmance — Chief Justice Weintraub and Justices Jacobs, Erancis, Proctor, Hall, Schettiito and HaneMAN — 7.
For reversal — 7.