State v. Brennan

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: SHEBELL
• Citation: 551 A.2d 560,229 N.J.Super. 342
• Decision Date: 21 December 1988
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael A. BRENNAN, Defendant-Appellant.

Page 342

229 N.J.Super. 342 551 A.2d 560 STATE of New Jersey, Plaintiff-Respondent,
v.
Michael A. BRENNAN, Defendant-Appellant. Superior Court of New Jersey,
Appellate Division. Argued Nov. 7, 1988.
Decided Dec. 21, 1988.

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Richard R. Uslan, Springfield, for defendant-appellant (Richard R. Uslan and Jeffrey H. Katz, of counsel; Richard R. Uslan, on the letter-brief).

Mark P. Stalford, Asst. Prosecutor, for plaintiff-respondent (John Kaye, Monmouth [551 A.2d 561] County Prosecutor, attorney; Mark P. Stalford, of counsel and on the letter brief).

Before Judges SHEBELL, GRUCCIO and LANDAU.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Defendant Michael Brennan appeals the denial of his motion to dismiss a motor vehicle complaint filed against him in the Belmar Municipal Court.

Following his arrest on July 18, 1987, defendant was served with a summons for a violation of N.J.S.A. 39:4-50, driving while intoxicated. Neither the complaint nor summons were

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signed at the time the summons was served on defendant, although the summons did state the badge number of the issuing police officer. The summons stated on its face that the officer "will file a complaint in this court charging you with the offense set forth above."

Defendant moved to dismiss the criminal complaint based on lack of jurisdiction. His motion was heard in the municipal court on October 15, 1987, apparently following an adjournment of the initial return date on the summons of July 30, 1987. The municipal court judge held that the lack of signature was "not a fatal defect to the process and the pleading" and denied defendant's motion. The defendant then entered a conditional plea of guilty to the charge, with the stipulation that he could preserve for appeal any issues relating to the adequacy of service of process and jurisdiction. Defendant was sentenced, but his sentence was stayed pending appeal.

Defendant appealed to the Law Division and was heard on oral argument and the record below. By letter opinion dated March 2, 1988, the Law Division affirmed the municipal court ruling. The Law Division in affirming the municipal court's decision relied on R. 7:3-1(b) and stated:

No one will deny that a summons should be signed, made and issued, but after a reading of the rules, the cases, and considering the facts and circumstances of this case, particularly where the defendant was personally served with the summons while at headquarters, this Court is convinced that defendant was properly issued and/or served with process. Thus, the summons is not fatally flawed, and it could have been and was properly corrected prior to or during the trial of the matter.

R. 7:3-1(b) states, in relevant part,

[i]f the Administrative Director of the Courts has, pursuant to R. 1:32-3, prescribed the form of complaint and summons for non-indictable offenses, a law enforcement officer may make, sign and issue such complaint and summons, serving the summons upon the defendant and thereafter, without unnecessary delay, filing the complaint with the court named therein.... [Emphasis supplied].

The arresting officer used a four-part form approved by the Administrative Director of the Courts in issuing defendant the summons in question. Although prosecution for drunken

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driving is considered quasi-criminal in nature, drunken driving offenses are not "crimes." State v. Roth, 154 N.J.Super. 363, 366, 381 A.2d 406 (App.Div.1977). Clearly, R. 7:3-1 is applicable to the present offense. See R. 7:6-1(b). Because the offense relates to the operation and use of a motor vehicle within the intendment of R. 7:6-1, the complaint need not be sworn to before a judge or court clerk.

Defendant contends that the municipal court had no jurisdiction over him as the summons with which he was served was unsigned and, therefore he concludes, invalid. The State claims that the signature of the issuing officer is not required for the summons to be valid.

The interpretation of the trial court that "may," as used in R. 7:3-1, makes signing of the summons permissive and not imperative brings about the result that as a regular course of action, the making and issuance of a summons and complaint would be possible without either being signed under the four-part form system approved by the Administrative Office of the Courts, where the signature on the original complaint imprints on all four forms including the summons. It is unreasonable to conclude this was an intended reading of the word "may."

[551 A.2d 562] It is evident that the word "may" in that provision is meant to make available an alternate method of initiating process. An officer may "make, sign and issue such complaint and summons, serving the summons upon the defendant and thereafter, without unnecessary delay, filing the complaint with the court named therein ...," R. 7:3-1, in lieu of the issuance of an arrest warrant upon a complaint, pursuant to R. 3:3-1. Where use of the complaint and summons form is discretionary, if the form is used, it is to be made, signed and issued even though under R. 7:3-1(b) the officer was permitted to issue an unsworn summons.

The State concedes, and it is fundamental, that a complaint must be signed for there to be valid filing of the complaint before the statute of limitations has expired. A traffic complaint

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is only valid when the person making the charge has certified on the approved complaint form that

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