State v. Ingram

• Decision Date: 22 March 1961
• Docket Number: No. 6220,6220
• Citation: 169 A.2d 860,67 N.J.Super. 21
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Howard INGRAM, Defendant-Appellant.
• Court: New Jersey County Court

Page 21

67 N.J.Super. 21

169 A.2d 860

STATE of New Jersey, Plaintiff-Respondent, v. Howard INGRAM, Defendant-Appellant.

No. 6220.

Passaic County Court

Law Division, New Jersey.

March 22, 1961.

Walter H. Jones, Hackensack (Frederick L. Bernstein, Hackensack, appearing), attorney for appellant.

David D. Furman, Atty. Gen., of New Jersey (Matthew T. Rinaldo, Deputy Atty. Gen., appearing), for respondent.

PASHMAN, J.C.C.

Defendant was convicted in the Municipal Court of the City of Clifton of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4--50. He has appealed to this court, which appeal has been heard De novo on the record. The hearing consisted solely of oral argument. R.R. 3:10--10(a).

The legal questions raised on this appeal are:

1. Were the arrest and detention of the defendant illegal by reason of being arrested without a warrant and the failure of the police officer to take him, without unnecessary delay, before the nearest available magistrate?

2. Was the offense committed within the territorial jurisdiction of the Municipal Court of the City of Clifton?

3. Should this court take into consideration, along with all other relevant evidence, the refusal of the defendant to submit to a drunkometer examination?

4. Did the court err in denying defendant's motion to dismiss the complaint at the end of the State's case because the State failed to sustain the burden of proving the defendant's guilt of the charge of operating a motor vehicle while under the influence of intoxicating liquor, beyond a reasonable doubt?

I.

The defendant urges that he was never brought before a magistrate upon his arrest, and that there was a non-compliance with R.R. 8:3--3(a) which provides in effect that 'a person making an arrest without a warrant shall take the arrested person, without unnecessary delay, before the nearest available magistrate and a complaint shall be filed forthwith and a warrant issued thereon'; and that by reason of such non-compliance the court was deprived of jurisdiction; thus there could be no valid conviction.

The defendant was apprehended in Clifton and taken to the Bloomfield State Police Station for an examination to be conducted to determine alcoholic influence. Certain 'physical' tests were performed upon the defendant, but he refused to submit to a drunkometer test. He was then taken by the troopers to Clifton Police Headquarters where he was to undergo a medical examination, but a doctor was not available. An unsuccessful attempt was made to have a doctor in Passaic examine the defendant. There was no objection to this procedure on the part of the defendant. Upon return to Clifton, a summons was issued to the defendant and bail posted. This procedure took aproximately two to three hours.

Apparently much of the time involved was spent attempting to have the defendant examined. No contention is made by the defendant that he was abused in any way. The circumstances clearly indicate that the detention was otherwise reasonable.

It is conceded that R.R. 8:3--3(a) superseded N.J.S.A. 39:5--25. Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950); State v. Nimmo, 11 N.J.Super. 606, 78 A.2d 736 (Cty.Ct.1951); State v. Ahrens, 25 N.J.Super. 201, 95 A.2d 755 (App.Div.1953); State v. Lee, 25 N.J.Super. 92, 95 A.2d 500 (Cty.Ct.1953).

Ahrens, supra, is dispositive of defendant's contention. In that case, the facts as to arrest and delay are almost identical to those now before this court. There, similarly the defendant's contention was that the municipal court was without jurisdiction to hear and determine the matter. The Ahrens case makes it clear that R.R. 8:3--3(a) has no applicability in the case at bar. At the expense of brevity, the pertinent part of the court's opinion in the Ahrens case is here quoted (25 N.J.Super. 201, 95 A.2d 757) 'Unquestionably, the municipal court has jurisdiction to hear matters concerning the violation of the motor vehicle and traffic laws occurring within the territorial jurisdiction of that court. N.J.S. 2A:8--21, N.J.S.A.

'The practice and procedure in the municipal court is governed by the rules promulgated by the Supreme Court (Rule 8:1--1). Under these rules it is provided that '(a) In cases involving violations of statutes or ordinances relating to the operation or use of motor vehicles, hereinafter designated as 'traffic offenses,' the complaint and summons shall be in the form set out in Criminal Procedure Form No. 11, the 'Uniform Traffic Ticket," and it is further provided that 'The Complaint form shall be used in traffic cases, whether the complaint is made by a police or peace officer, or by any other person.' (Rule 8:10--1.) Rule 8:1--3, 'Definitions,' provides, Inter alia:

"'Offense' shall mean any violation of a statute or an ordinance within the jurisdiction of a court to which these rules apply, or with respect to which a magistrate is authorized by law to conduct a preliminary examination of the person accused of crime.'

'Rule 8:3--2(b) provides:

"In the case of indictable offenses other than high misdemeanors and in instances of non-indictable offenses, if it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, if the defendant is a corporation a summons shall issue. If the defendant is an individual the magistrate May, in his discretion, issue either a summons or a warrant. * * *' (Emphasis ours.)

'Rule 8:3--2(b) provides that in matters other than indictable offenses a summons or warrant may issue in the discretion of the magistrate taking the complaint. Rule 8:3--3(a) and (b) provides that a warrant or summons shall be signed by the committing magistrate or tested in his named and signed by a person empowered by law to take complaints. * * *'

Continuing 25 N.J.Super. at page 208, 95 A.2d at page 758:

'We conclude that it is the intent of the rules governing procedure in the municipal court, that the magistrate or one authorized to take complaints may issue either a summons or warrant to bring before the magistrate one charged with a violation of R.S. 39:4--50 N.J.S.A. Rule 8:3--2(b) and Rule 8:3--3(a) and (b), supra. * * *'

At page 209 of 25 N.J.Super. at page 759 of 95 A.2d:

'The matter of the form of process is, in our opinion, a procedural and not a substantive one and is governed by the provisions of Rule 8:10--1 et seq., and supersedes the procedures set forth hereinabove under R.S. 39:5--25, N.J.S.A. Under the cases of Winberry v. Salisbury, supra, and In re Pfizer's Estate (6 N.J. 233, 78 A.2d 80 (1951)) supra, the procedure is clearly controlled by the rule-making power of the Supreme Court.

'Under the circumstances prevailing here, the magistrate did not lose his jurisdiction to hear and determine the charges against the defendant.'

See also City of Asbury Park v. Shure, 54 N.J.Super. 46, 52, 148 A.2d 82 (Cty.Ct.1959) and cases therein cited, holding that a procedural infirmity which had in nowise deprived an accused of his opportunity to be heard on the merits of the sufficient charge presented, or prejudiced his substantial right, will not require a reversal by the appellate court.

However, going one step further, assuming that the procedural due process has not been complied with the requirement may be waived by action of the defendant. State v. Simpkins, 8 N.J.Super. 194, 197, 73 A.2d 726 (App.Div.1950); Asbury Park v. Shure, supra, 54 N.J.Super. at p. 52, 148 A.2d at page 85. In the case Sub judice the defendant appeared before the magistrate on the date fixed for trial, was fully acquainted with the charge, and participated in the trial, and asserted the jurisdictional defect here raised to have the conviction set aside. The issue here raised as to the jurisdiction of the court was not raised before the municipal court until after the State had completed its case and after cross-examination of the State's witnesses. There is no evidence that the defendant was deprived of a substantial right or of his opportunity to be heard upon the merits of the charge. Any participation on the merits before a magistrate is equivalent to a waiver and a submission to the jurisdiction of that court. The defendant's objection came too late and he thus waived the alleged omission and cannot now complain. State v. Mangino, 17 N.J.Super. 587, 86 A.2d 425 (App.Div.1952); State v. Baker, 102 N.J.L. 349, 133 A. 785 (E. & A.1926); State v. Keller, 137 N.J.L. 637, 61 A.2d 283 (Sup.Ct.1948); Tomicich v. Norton, 134 N.J.L. 411, 48 A.2d 752 (Sup.Ct.1946). The foregoing cases support the proposition that the failure to obtain a warrant prior to the arrest of a person suspected of driving 'under the influence' is a procedural formality to acquire jurisdiction over the person which must be challenged at the outset of the hearing before the magistrate. This theory is further supported by R.R. 8:10--6(h), which provides that where a defendant is charged with a traffic offense he must object to the validity of 'process' before the trial commences. Hence the failure to make a timely objection would operate as a waiver of such right. Also R.R. 3:10--10(b) states that the 'appeal shall operate as a waiver of all defects in the record, including and defect in, or the absence of any process * * *.' (Emphasis supplied.) State v. Bierilo, 38 N.J.Super. 581, 120 A.2d 125 (App.Div.1956); State v. Menke, 25 N.J. 66, 135 A.2d 180 (1957); State v. Henry, 56 N.J.Super. 1, 151 A.2d 412 (App.Div.1959).

This court must hold, in view of the law and the circumstances here presented, that the Municipal Court of Clifton was not deprived of its jurisdiction over the defendant by reason of the manner of his arrest.

II.

The defendant next urges that proof is lacking to indicate that the offense took place in Clifton and cites State v. Vreeland, 53 N.J.Super. 169, 147 A.2d 49 (App.Div.1958), in support of his argument for...