State v. Damoorgian

• Decision Date: 01 December 1958
• Docket Number: No. A,A
• Citation: 53 N.J.Super. 108,146 A.2d 550
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Dick Richard DAMOORGIAN, Defendant-Appellant. pp. 84.
• Court: New Jersey County Court

Page 108

53 N.J.Super. 108

146 A.2d 550

STATE of New Jersey, Plaintiff-Respondent, v. Dick Richard DAMOORGIAN, Defendant-Appellant.

No. App. 84.

Hudson County Court Law Division, New Jersey.

Dec. 1, 1958.

Nathan J. Littauer, Union City, for appellant.

William Blohm, Jr., Deputy Atty. Gen., for the State (David D. Furman, Atty. Gen., William Blohm, Jr., Deputy Atty. Gen., on the brief).

CONCILIO, J.C.C.

This is an appeal from a conviction of the defendant in the Municipal Court of the Town of Secaucus on a charge of 'operating vehicle while under influence of liquor.' A stenographic record having been made in that court, the appeal was heard De novo on the record. R.R. 8:7--5.

The record discloses that Trooper James Kearns observed the defendant's vehicle, with parking lights on, parked on the grass section of the shoulder of the New Jersey Turnpike at milepost 113, northbound, in the Town of Secaucus, and upon investigation found the defendant sitting in the driver's seat with his head lying against the window of the door on the driver's side. In attempting to arouse the defendant, the trooper found the door on the driver's side locked. He tried to awaken him by knocking upon the window against which his head was lying, but to no avail. Failing in this, he proceeded to the other side of the car and found that the front door thereof was unlocked. Upon opening it, he ascertained that the engine was running and the radio was playing and he smelled the odor of alcohol. He awakened the defendant and had him get out of the car. He observed that he had difficulty in holding his balance. The toll ticket issued at Secaucus, east toll booth, in the possession of the defendant, was stamped at 10:04 p.m. The trooper came upon the defendant's car at 11:05 p.m. Believing that the defendant was under the influence of intoxicating liquor and unfit to operate a motor vehicle, the trooper brought him to the Newark station for clinical and drunkometer examinations, which were administered by Trooper William J. Burke in the presence of Trooper Kearns. These tests were commenced at 11:35 p.m. As a result of the clinical tests, later corroborated by the drunkometer test, which the operator computed at .23 per centum of alcohol in the defendant's blood, the defendant was charged with 'operating vehicle while under influence of liquor' and a summons was issued by the arresting officer to the defendant to that effect.

The summons and complaint were in the form prescribed by R.R. 8:10--1. After the words on said summons and complaint 'and did then and there commit the following offense(s)' appear '39:4--50.' After the State had presented its testimony the defendant moved to dismiss the complaint upon several grounds, which are now urged on this appeal. The trial judge denied all motions. The defendant, urging that the court had no jurisdiction to hear the matter, did not take the stand in his own behalf. He was found guilty and sentenced to the Hudson County jail for a period of ten days. The serving of said sentence was stayed by the court pending appeal.

Defendant urges four grounds for reversal, namely, (1) there was no proof of operation of the automobile by defendant; (2) there was reasonable doubt as to the insobriety of the defendant; (3) that three essential elements to admissibility of evidence on drunkometer test are lacking, and lastly (4) that the court lacks jurisdiction because complaint is fatal in that the offense is brought under R.S. 39:4--50, N.J.S.A. and should have been brought within the provision of R.S. 27:23--26, N.J.S.A.

The court will consider each of these grounds separately.

I.

As the New Jersey Turnpike is a toll road, the motor vehicle in which the defendant was found had, of necessity, to pass through a toll booth in order to gain access thereto. A ticket would be given to the driver of that motor vehicle setting forth the toll booth entered and the time. There is no evidence that any one else was with the defendant. Such a toll ticket was found in the possession of the defendant. Further, it was elicited that defendant had left New York, that his home was in Wallington, N.J., and in order to arrive there from the turnpike he would have to travel northbound from the point where he was parked. It was also shown that the defendant's car had its parking lights on, that when the trooper opened the door of the same the engine was running, and that the radio of the car was playing.

From these undisputed facts the inference is inescapable that the defendant operated the motor vehicle he was found in on the grass portion of the shoulder of the northbound lane of the New Jersey Turnpike. State v. Baumgartner, 21 N.J.Super. 348, 91 A.2d 222 (App.Div.1952.) State v. Witter, 33 N.J.Super. 1, 108 A.2d 862 (App.Div.1954).

II.

Whether the State established the defendant's insobriety beyond a reasonable doubt must be gleaned from the evidence.

In the State's proof we have the testimony of both troopers stating, without equivocation, it was their opinion that the defendant was under the influence of alcoholic liquor and unfit to operate a motor vehicle. Whether a man is sober or intoxicated is a matter of common observation, not requiring any special knowledge or skill, and is habitually and properly inquired into of witnesses who have occasion to see him and whose means of judging correctly must be submitted to the trier of the facts. Castner v. Sliker, 33 N.J.Law 95 (Sup.Ct.1868). In State v. Pichadou, 34 N.J.Super. 177, 111 A.2d 908 (App.Div.1955), the court reaffirmed the rule that the average person of ordinary intelligence, although lacking special skill, knowledge and experience, but who has had an opportunity for observation, may testify whether a certain person was intoxicated; that in a prosecution for driving an automobile while under the influence of intoxicating liquor, the intoxicated condition of the defendant could be established in the absence of expert testimony.

As the testimony of the troopers in this case is opinion evidence, the weight to be given it is for the court as the trier of the facts.

The testimony of Trooper Kearns shows that when he opened the door of the defendant's car he detected the odor of alcoholic beverage, and that when the defendant got out of the car he could not hold his balance, and at that time he, the trooper, formed the opinion that the defendant was under the influence of alcoholic liquor. This opinion was further substantiated in his observation of the defendant at the State Police Barracks and by the clinical tests given to him. Trooper Burke, who administered the clinical tests, testified that the defendant admitted drinking of alcoholic liquor, namely one-half dozen drinks of scotch whiskey between 8 and 10:30 p.m. and that as a result of the clinical tests given and his conversation and observation of the defendant he was of the opinion that the defendant was under the influence of intoxicating liquor and unfit to operate a motor vehicle.

The court, as a trier of the facts, finds that the opinions of the troopers are sufficient and adequate and most convincing and that the State has proved the insobriety of the defendant beyond a reasonable doubt. To conclude that defendant was not under the influence of intoxicating liquor would be incumbent upon the court to completely ignore the proofs.

III.

Considering the ground advanced by the defendant that the evidence of the drunkometer test was inadmissible due to the fact that three essential elements of the tests were not complied with, in support of this contention he cites the case of State v. Brezina, 45 N.J.Super. 596, 133 A.2d 366 (Cty.Ct.1957), where the court, referring to Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (Tex.Crim.App.1953), adopted the holding of that court relating to the admissibility of evidence on the result of drunkometer tests. That court held there must be shown (1) proof that the chemicals were compounded to the proper percentage for use in the machine; (2) proof that the operator and the machine were under periodic supervision of one who has an understanding of the scientific theory of the machine; (3) proof by a witness who was qualified to calculate and translate the reading of the machine into percentage of alcohol in the blood.

The court has no quarrel with that holding. Of necessity it must be shown that the drunkometer had been periodically inspected, that it was in good working order, that the chemicals used for the test were of proper strength, that the person administering the same had been trained and qualified to conduct it, and that it was given in the manner prescribed.

It is not necessary that the operator of the drunkometer, nor the person preparing the chemical compounds or inspecting the machine, be a college graduate with the degree of Bachlor of Science and have majored in chemistry. It is sufficient that the operator of the drunkometer be certified as an operator after receiving a course of training in its operation by the New Jersey State Police. Further, a person through training, education, experience, reading and research can qualify as a person who can compound the chemicals used in the machine, conduct examinations of it, and understand the scientific theory thereof.

Whether the three essential elements, referred to in the Hill case above cited, have been complied with fully, would not make the finding of the drunkometer test inadmissible as evidence.

In prosecution for operating a motor vehicle while under the influence of intoxicating liquor, the computation of the per centum of alcohol in defendant's blood by a qualified operator of a drunkometer is not conclusive, but merely constitutes admissible evidence to be weighed by the trier...