State v. Greeley

• Decision Date: 13 November 2003
• Citation: 178 N.J. 38,834 A.2d 1016
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. John P. GREELEY, Defendant-Respondent.
• Court: New Jersey Supreme Court

834 A.2d 1016

178 N.J. 38

STATE of New Jersey, Plaintiff-Appellant, v. John P. GREELEY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued September 22, 2003.

Decided November 13, 2003.

Joseph P. Connor, Jr., Assistant Prosecutor, argued the cause for appellant (Michael M. Rubbinaccio, Morris County Prosecutor, attorney).

John P. Greeley, argued the cause pro se.

Justice ZAZZALI delivered the opinion of the Court.

This appeal concerns the right of a defendant, pursuant to N.J.S.A. 39:4-50.2(c), to an independent blood-alcohol test after being arrested for driving while intoxicated (DWI). Specifically, we must decide whether the police violate that right by refusing to release, except to the care of a relative or friend, a defendant whose station-house test reveals a blood-alcohol level in excess of the legal limit. In vacating defendant's conviction, the Appellate Division determined that the police, in enforcing that policy, violated defendant's statutory right to an independent test. State v. Greeley, 354 N.J.Super. 432, 441, 808 A.2d 108 (2002). Because we find that neither the policy at issue here nor its administration in the circumstances of this case impermissibly encroached on that statutory right, and because the policy protects the safety of both defendants and the public, we reverse the judgment of the Appellate Division and reinstate defendant's conviction.

I.

In the early morning hours of February 17, 1998, the Parsippany-Troy Hills police apprehended defendant, John P. Greeley, on Route 80. Defendant had attended a party earlier that evening and was on his way back home to Brooklyn. Suspecting defendant to be under the influence of alcohol, the police placed him under arrest and transported him to the police station where two breathalyzer tests were administered. Each test indicated a blood-alcohol concentration (BAC) of 0.12%, in violation of N.J.S.A. 39:4-50, which prohibits operation of a motor vehicle by a person with a BAC of "0.10% or more by weight of alcohol in the defendant's blood."

The proceedings at the police station were videotaped, but the tape was lost. Consequently, defendant moved to suppress the breathalyzer results on the grounds of destruction of evidence. The trial court denied the motion; however, in order to prevent prejudice to defendant from the loss of evidence, it accepted his version of the events. The Appellate Division also accepted defendant's version of events and affirmed the trial court's denial of suppression on the grounds of destruction of evidence. Greeley, supra, 354 N.J.Super. at 437, 808 A.2d at 111. Because the adjudication of defendant's motion below depended on his version of what occurred at the police station, we likewise will rely on his account of the station-house proceedings.

According to defendant, after being informed that his BAC was in excess of the legal limit, he asked that yet another test be performed. Although the police refused that request, they did inform defendant that he had the right to have an independent test performed at his own expense. They advised him that this test could be performed by a doctor or local hospital, but also told him that he could only be released into the custody of a friend or relative. Otherwise, he had to remain at the station until he was sober enough to drive.

The police provided defendant with access to a telephone from which he made three unsuccessful attempts to reach a friend or relative who might have assisted him. Defendant explained to the police that because he was from out of state, he knew no one in the area who could provide transportation. He asked how else he might be able to arrange for the independent blood-alcohol test. A police officer merely responded, "Oh, well," and provided no other options. Defendant had no one else to call and, thereafter, was escorted to a holding cell. Approximately four hours later, the police deemed defendant sober enough to drive and released him on his own recognizance.

Facing trial in the Parsippany Municipal Court, defendant moved to suppress the breathalyzer results on the ground that the police violated his statutory right to an independent blood-alcohol test. The court denied his motion and defendant entered a plea of guilty, expressly reserving the right to appeal the denial of his motion to suppress. Defendant then sought a trial de novo in the Law Division, where he again moved to suppress the results of the breathalyzer tests. The court denied that motion and found defendant guilty of driving while intoxicated, N.J.S.A. 39:4-50. On appeal, the Appellate Division reversed the denial of the motion to suppress, vacated the conviction, and remanded for a new trial. Greeley, supra, 354 N.J.Super. at 441, 808 A.2d at 113-14. The Appellate Division found the adherence by the police to a policy of releasing DWI arrestees only to a friend or relative to be "entirely arbitrary." Ibid. The court reasoned that because defendant's car was impounded and he was sober enough to make phone calls unsupervised, he posed no threat to his own safety or that of third persons. Id. at 440, 808 A.2d at 113. Consequently, the panel held that the police should have done more to effectuate defendant's statutory right to an independent test than simply present him with the choice of being released to a relative or friend or detention until he was sober enough to drive. Id. at 441, 808 A.2d at 113.

We granted the State's petition for certification, 175 N.J. 430, 815 A.2d 477 (2003), to address the issue of whether a police policy of releasing a DWI arrestee only to the custody of a relative or friend violates the statutory right to an independent blood-alcohol test.

II.

Police administration of blood-alcohol tests is governed by N.J.S.A. 39:4-50.2, which provides that, after a chemical breath-test is performed,

(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.

[(Emphasis added).]

Beyond the need to inform an arrestee of the right to a copy of the test results and that he or she is permitted to have an independent test performed, the statute sets forth no other affirmative duties on the part of the police. Nevertheless, in a series of reported opinions, the Appellate Division has instructed that the police may not thwart the right to an independent test through arbitrary actions or policies that otherwise would render the statutory right meaningless.

In State v. Ettore, 228 N.J.Super. 25, 30, 548 A.2d 1134, 1136-37 (App.Div.1988), certif. denied, 114 N.J. 473, 555 A.2d 600 (1989), the court considered a policy that provided that "[u]ntil the blood alcohol level of the charged driver fell below the legal limit, he or she could be released only to a responsible escort." The defendant moved to suppress the test results on the ground that the police had deprived him of his statutory right to an independent test. Id. at 27, 548 A.2d at 1135. The court, however, concluded that "[t]here is nothing unreasonable or arbitrary about such a policy considering the possible consequences of permitting an intoxicated defendant to proceed unattended by one responsible for his or her safety." Id. at 30, 548 A.2d at 1137. Accordingly, it refused to suppress the breathalyzer results because the policy afforded the defendant "reasonable access" to an independent test. Id. at 31, 548 A.2 at 1137.

On another occasion, the Appellate Division elaborated on the notion of reasonable access. State v. Hicks, 228 N.J.Super. 541, 550 A.2d 512 (1988),certif. denied,127 N.J. 324, 604 A.2d 599 (1990). In Hicks, the defendant alleged that the police had refused to allow him to use a telephone to arrange for a private test. Id. at 544, 550 A.2d at 513. The court explained that "the statutory right to have an independent examination ... would be meaningless if there are no means to implement the statute." Id. at 549, 550 A.2d at 516. Consequently, the denial of access to a telephone thwarts the exercise of that right. Id. at 550, 550 A.2d at 517. However, because the record was not clear as to the purpose for which defendant sought to use the phone—i.e., to call his wife, his lawyer, or his physician—the court remanded without deciding whether suppression was warranted. Id. at 551, 550 A.2d at 517.

In State v. Jalkiewicz, 303 N.J.Super. 430, 432, 697 A.2d 155, 156 (App.Div.1997), the police informed the defendant of the right to an independent test, but had "no specific procedures in place concerning a defendant's request for an independent blood test." Consequently, the police provided no further information as to how such a test could be obtained, although they summoned a taxi at the defendant's request. Ibid. After being released, the defendant simply asked the taxi driver to take him home and did not seek a test. Ibid. The defendant contended that the lack of procedures concerning an independent test warranted suppression of the breathalyzer results. Ibid. The court, however, determined that the absence of procedures, alone, does not require suppression. Id. at 434, 697 A.2d at 156-57. Instead, it ruled that a challenge to BAC test results would be upheld only when the inadequacy of police procedures "has interfered with or thwarted defendant's attempt to exercise the right to an independent examination." Ibid. That is, the police have no statutory duty to assist in procuring a test; rather, the question is whether...