State v. Broadley

• Court: New Jersey Superior Court
• Citation: State v. Broadley, 656 A.2d 1319, 281 N.J.Super. 230 (N.J. Super. 1992)
• Decision Date: 09 July 1992
• Parties: STATE of New Jersey, v. Lois BROADLEY, Defendant. (Criminal), Gloucester County

Page 230

281 N.J.Super. 230

656 A.2d 1319

STATE of New Jersey, v. Lois BROADLEY, Defendant.

Superior Court of New Jersey, Law Division (Criminal), Gloucester County.

Decided July 9, 1992.

Harris Y. Cotton, Prosecutor, Gloucester County, for State of N.J. (John A. Mennite, Assistant Prosecutor).

Alfred T. Sanderson, Woodbury, for defendant.

PORRECA, P.J.Cr.

This matter was initially tried on September 18, 1991, before the Deptford Township Municipal Court, Judge Charles J. Sprigman, Jr., presiding. The findings are as follows:

Defendant, Lois Broadley, was stopped by Officer Weatherby of the Deptford Township Police Department on May 23, 1991, at 1:45 a.m., in the Deptwood Plaza Shopping Center parking lot. Officer Weatherby witnessed defendant banging her fists on the door of a tractor and trailer prior to returning to her vehicle. Upon stopping defendant's vehicle, Officer Weatherby spoke with defendant about the incident he had observed and, after brief observation, suspected she was intoxicated. Defendant was asked to exit her vehicle to perform routine testing for driving while intoxicated. Officer Weatherby found defendant to be intoxicated and placed her under arrest. After arriving at the Deptford Township Police Station, Officer Weatherby read defendant her Miranda rights and asked her to submit to a breathalyzer. The test results indicated defendant had a blood alcohol level beyond the limit of .10 established by N.J.S.A. 39:4-50 for driving while intoxicated.

While at the police station, defendant asked to have either: (1) the police take her to Underwood Memorial Hospital, located approximately two miles from the police station or (2) have a taxi take her there for the purpose of exercising her right to an independent blood alcohol test established by N.J.S.A. 39:4-50.2(c). After being refused these two requests, defendant was finally able to obtain transportation from a family member to Underwood Memorial Hospital at 2:45 a.m. Upon arrival at the hospital, defendant requested a blood sample be taken to determine her blood alcohol level. Hospital personnel refused this request and informed defendant that her blood would only be taken through authorization from the police. Defendant called the Deptford Township Police Department to seek an authorization but was denied by the supervising officer.

Defendant was found guilty of driving while under the influence, contrary to N.J.S.A. 39:4-50, fined $250.00, ordered to pay $20.00 court costs, $1.00 ATS charge, $100.00 surcharge, $30.00 violent crime penalty, loss of driving privileges for six months, and was required to attend twelve hours of Intoxicated Drivers Resource Center instruction. Defendant appealed her conviction to this Court.

The issue raised is whether defendant was properly afforded an opportunity to exercise her right to an independent blood test as set forth in N.J.S.A. 39:4-50.2(c). Furthermore, if defendant has not been afforded her right to an independent blood test, should not defendant's conviction be overturned?

N.J.S.A. 39:4-50.2(c) states:

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.

After consulting controlling case law in State v. Ettore, 228 N.J.Super. 25, 548 A.2d 1134 (App.Div.1988) and State v. Hicks, 228 N.J.Super. 541, 550 A.2d 512 (App.Div.1988), it was determined that the issue raised on appeal could not be resolved unless certain fact questions were first answered. The above cases require the establishment of reasonable police procedures to allow DWI defendants an opportunity to exercise their right to an independent blood analysis. Accordingly, this court remanded to the municipal court to gain answers to, among others, the following question:

Does the Deptford Township Police Department have a formal procedure that allows DWI suspects reasonable means to exercise the right to an independent blood alcohol test pursuant to N.J.S.A. 39:4-50.2(c)?

In response to the above question, the Deptford Township Municipal Court stated in a letter opinion of April 13, 1992 that:

The Deptford Township Police Department evidently did not have a formal procedure that allows DWI suspects a reasonable means to exercise the rights to an independent blood test pursuant to N.J.S.A. 39:4-50.2(c).

Such a lack of policy leaves defendants charged with a DWI offense at the mercy of the supervising officer who happens to be working at the time of arrest. In Ettore, the court stated:

Where a statute confers certain rights for a defendant, the police are not thereby denied the authority to establish reasonable regulations in implementation of those rights, they are perforce, charge with the duty of promulgating reasonable procedures to vouchsafe such rights to a defendant.

[Ettore, supra, 228 N.J.Super. at 30, 548 A.2d 1134 (citing State v. Magai, 96 N.J.Super. 109, 113, 232 A.2d 477] (Cty.Ct.1967)).]

From the above excerpt, it is clear that established police procedures must be in place in order to provide defendants an...