State v. Hicks

• Decision Date: 16 November 1988
• Citation: 228 N.J.Super. 541,550 A.2d 512
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ned M. HICKS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 541

228 N.J.Super. 541

550 A.2d 512

STATE of New Jersey, Plaintiff-Respondent, v. Ned M. HICKS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 25, 1988.

Decided Nov. 16, 1988.

Catherine M. Langlois, Morristown, for defendant-appellant.

James J. Janci, Asst. Warren County Prosecutor, for plaintiff-respondent (Richard C. Hare, Warren County Prosecutor, attorney; James J. Janci, on the brief).

Before Judges PRESSLER, O'BRIEN and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

N.J.S.A. 39:4-50.2 requires the operator of a motor vehicle to give his consent to the taking of a breathalyzer examination upon arrest for driving under the influence of an intoxicating liquor (DWI), N.J.S.A. 39:4-50(a). ¹ A provision of that statute, N.J.S.A. 39:4-50.2(c), provides:

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.

The issue before us is whether an individual arrested for a DWI offense, N.J.S.A. 39:4-50(a), and subjected to a breathalyzer examination upon direction of the police is entitled to have the results of that examination suppressed when the police refuse his request to make a telephone call which might assist in obtaining the independent test permitted under N.J.S.A. 39:4-50.2(c).

Defendant was found guilty in the Mansfield Township Municipal Court of DWI. A $250 fine, $100 surcharge, and $15 court costs were imposed. Defendant was ordered to attend the alcohol countermeasures program, and his license was suspended for six months. Defendant was again found guilty on trial de novo before the Law Division, Warren County, and the same sentence was imposed. ²

Defendant was arrested following his involvement in a minor two-vehicle collision at approximately 11:40 p.m. on October 16, 1987. Defendant represented himself at the municipal court trial and at the outset stated the following:

Your Honor, I'd like to, I'd like to make a motion that ah, that the charge of D.W.I. be dismissed for ah, because the officer would not allow me to make a phone call, or explain to me, exactly how I could ah, ah, have a counter get my blood tested, in order that the breath analyzer be ah, disposed of. Ah now, I understand that I, there is no way that I could ah, I can't just walk into the hospital and get a blood test, I have to contact a physician, who has to order the blood test and ah, I was not allowed to contact my wife, or a lawyer, when I repeatedly asked to do so, because I don't, I'm not aware, I don't get involved with these matters. Ah, ya know, I'm a business man, and these sort of things do not, I do not get involved with these; and so I'm asking that the Court dismiss these charges, on the ground that I did not have an opportunity to exercise my constitutional rights.

The court denied defendant's motion stating:

And the Court is going to deny your motion Mr. Hicks. Ah, whether you, well you may claim anything that you wish to claim, but ah, that according to the statutes of New Jersey, anyone must submit to a breathalizer test, and obviously I will hear testimony from the ah officers involved, as to whether you were advised of your rights, or you were not. But as far as you making a telephone call, before submitting to a test, or having your attorney present, or your doctor present, or your wife present, or anyone else present, the law specifically states that no one is entitled to have anyone present, before the breathalyzer is, test is administered, ah.

When defendant indicated that the court was not ruling on "the content" of his motion, the court further ruled that defendant did not have the right to have a witness present during the administration of a breathalyzer examination and that "...now if they didn't advise you that you have the right to see a doctor and have a blood or a urine sample taken ...and so forth and so on, ...I'll reserve on that part of the motion until I've heard the State's proofs." However, there was no contest that defendant was, in fact, given the appropriate advice under N.J.S.A. 39:4-50.2(d) that he was entitled to be furnished with a copy of the results of the breathalyzer examination given by the State, and that he had a right to an independent examination. See N.J.S.A. 39:4-50.2(b), (c).

The proofs indicated that upon responding to the accident, Patrolman Pantusodetected an odor of alcohol on defendant's breath and that defendant was argumentative and loud. The officer also indicated that defendant could not properly perform "the finger to nose test, and the heel to toe test." At the Mansfield Township Police Headquarters, the breathalyzer rights form was read to defendant and two examinations were administered. The exams, conducted at 1:00 a.m. and 1:06 a.m. on October 17, 1987, both resulted in readings of .12%.

On cross-examination, Officer Pantuso admitted that defendant asked but was denied the opportunity to make a telephone call from his car telephone at the scene of the accident, and that the officer advised defendant at police headquarters of his right to obtain an independent examination. In the words of Pantuso, "I didn't explain how you could go, but I explained that you could have it done, once you took the breath test."

Defendant testified on his own behalf. He indicated that "...I always insist on making a phone call" because he didn't want his wife to fear any reason related to his delay. He stated "...I asked him to make the phone call then ...because ah me and my wife have a standing arrangement that anything that we ah, that I'm picked up by the police, or she's picked up by the police, that we make an immediate phone call to one another, so that we know where the other person is...." Defendant explained that because other members of his minority group had been "beaten on the highway," he had made this arrangement with his wife so that she would not be concerned when he arrived home late. Defendant further testified:

...I insisted on making the phone call to my wife, or my attorney, so that I would know, ah, so that she would know exactly where I am. Now, I don't know anything about ah, ah, how I could go about getting a blood test, or a urine test, except the patrolman did tell me that, he told me that, but being arrested, being arrested for me, is not, is ah, I interpret this is that I don't have the freedom, enough to ah, ah, to get these tests done. In other words, I cannot walk into the hospital, call up a hospital or something and say, I'd like to get a blood test, I'd like to get a urine test; I have to have someone on the outside, that's going to make these contacts for me; that is to call my physician who lives down the street from me; ah, call my lawyer, my regular lawyer, who lives in Orange; ah, now so, these are the things, that I'm saying that were denied to me, and I think that ah, ah, I think it was a fraudulent arrest, because, I was simply denied, or not advised of how I could go about getting my constitutional rights fulfilled.

In his summation to the municipal court judge, defendant insisted that the refusal of the officer to permit him to make the telephone call was a total "inhibition of my rights." He said, "It doesn't do him any good to tell me those things, if I can't make the phone call, to someone on the outside ...to make arrangements for [the independent blood test] ...I'm sitting there wondering now how am I going to get an independent test, when here I am, I'm under arrest, and I can't make a phone call, so it nullifies everything that he tells me, right there...." Although not part of his testimony under oath, defendant also indicated to the court that after he was released by the Manchester Township Police Department, he was taken to meet another police officer in Warren County who took him to the edge of Chester where he was greeted and taken home by the Chester Police. Without development under oath of the length of time involved, it appears that this took some period.

The municipal judge found defendant guilty and used the two readings of .12 in making his determination.

Defendant was represented by counsel on the trial de novo. Counsel repeated defendant's arguments to the effect that the breathalyzer results could not be used because of the failure of the police to help him implement his right to an independent test. Counsel insisted that a .12 reading "may be challenged by the opportunity to have a blood test," and stated:

...I hope that the county prosecutor hasn't missed my point and that is, telling a defendant the significance of the right, so he knows what it means and there's nothing in that record, with this defendant, to indicate that he was told by the State, in implementing the statute, in giving the statute at its plain meaning ...plain language, what should you do, what are your rights and how important are they when you are ...when you take a breath test.

The Law Division judge also found defendant guilty. The judge concluded that defendant "knew that he could see his doctor and talk to his doctor, talk to his attorney and so forth after he had finished the tests ... I think he was aware that he could have this test, but the law does not allow a defendant charged with ... arrested for driving under the influence, to interrupt or make telephone calls, or have an attorney present, before the tests are given." The court further concluded that the State is under no duty to help a defendant to take those independent tests and stated "...it's up to the defendant to proceed and have his own test made."

We conclude that in some circumstances a defendant may successfully challenge the introduction of a breathalyzer examination when, in response to the statutory advice given pursuant to N.J.S.A. 39:4-50.2(c) and (d), he is informed...