State v. Jalkiewicz
| Decision Date | 21 July 1997 |
| Citation | 697 A.2d 155,303 N.J.Super. 430 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Joseph F. JALKIEWICZ, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Stephen G. Raymond, Burlington County Prosecutor, for appellant (Robert S. Van Gilst, of counsel and on the brief).
Sitzler and Sitzler, Mount Holly, for respondent (Scott R. McMurtry, on the brief).
Before Judges KING, KEEFE and CONLEY.
The opinion of the court was delivered by
KEEFE, J.A.D.
Relying upon the Law Division opinion of State v. Broadley, 281 N.J.Super. 230, 656 A.2d 1319 (Law Div.1992), the Law Division judge in this case determined that defendant's breathalyzer readings were inadmissible in his prosecution for driving while under the influence because the Mt. Laurel Township Police Department did not have reasonable police procedures in effect to "implement" defendant's right under N.J.S.A. 39:4-50.2(c) to have chemical blood tests conducted by a person or physician of his own choosing. We granted the State's leave to appeal and now reverse the judgment under review.
The Law Division judge found, and defendant does not deny, that he was informed of his right to obtain an independent test by the arresting police officer. The Law Division judge also found that defendant heard and understood his right concerning the independent test and "he asked about it." The arresting officer had testified that he did not hear defendant inquire about the independent test. The Law Division judge accepted the police officer's explanation that he "didn't hear it[.]"
It is also undisputed from the record that immediately following the administration of the breathalyzer test, the arresting officer informed defendant that he could either call a relative for transportation, or the officer would call a cab for him, but defendant would not be allowed to drive. At defendant's request, the officer called a cab for defendant and escorted him to the lobby of the police station. When a cab arrived, defendant told the driver to take him home.
According to defendant, his inquiry concerning the independent blood test took place "[a]round the time that [the officer] called for the cab." At that time, defendant simply asked the officer "what's involved" in getting an independent blood test. The officer simply did not respond. Notwithstanding the officer's lack of response, defendant did not press the issue. Defendant admitted that he did not specifically ask for an independent blood test. He also admitted that he understood from prior experience that blood tests could be taken at a hospital emergency room or at a lab.
It is conceded by the State that Mt. Laurel does not have a specific procedure in place concerning a defendant's request for an independent blood test. In State v. Ettore, 228 N.J.Super. 25, 30, 548 A.2d 1134 (App.Div.1988), this court cited with apparent approval State v. Magai, 96 N.J.Super. 109, 113, 232 A.2d 477 1967), which stated, by way of dicta, that the police are "charged with the duty of promulgating reasonable procedures to vouchsafe such rights to a defendant." 1 Notwithstanding the reference to State v. Magai, the Ettore court noted that the police have no obligation "to arrange for the securing of a blood test by a defendant charged with drunken driving." State v. Ettore, supra, 228 N.J.Super. at 30, 548 A.2d 1134 (citing State v. Weber, 220 N.J.Super. 420, 532 A.2d 733 (App.Div.) certif. denied, 109 N.J. 39, 532 A.2d 1107 (1987)).
Our holding in State v. Ettore stands for the proposition that "[a] policy that allows a defendant to contact by telephone his or her attorney or family member and to be released to such an escort in furtherance of the defendant's exercise of his or her right to arrange for independent testing does, in our view, provide a procedure affording the defendant reasonable access to such testing." Id. at 30-31, 548 A.2d 1134. In our view, the arresting officer's summoning of the cab in this case immediately upon completing the breathalyzer tests on defendant, taken in conjunction with his prior advice to defendant concerning the right to an independent test, was all that was necessary to further defendant's exercise of his right.
It is only where the absence of police procedures interfere with defendant's attempt to exercise his statutory right that relief must be given. In State v. Hicks, 228 N.J.Super. 541, 549-550, 550 A.2d 512 (App.Div.1988), we quoted with approval Judge Kuchenmeister's analysis of this issue in State v. Nicastro, 218 N.J.Super. 231, 237-239, 527 A.2d 492 (Law Div.1986). Judge Kuchenmeister there said:
When it appears from a police officer's testimony that the defendant was thwarted in his attempts to exercise his statutory rights because the police did not have reasonable procedures in place to implement defendant's...
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State v. Jamarino
...never asserted. We believe that this issue is governed not by Broadly, but rather by the common sense reasoning in State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div. 1997). We noted in Jalkiewicz that to be entitled to relief, "it must be shown that the absence of established police proced......