State v. Kenderski

• Decision Date: 29 January 1968
• Docket Number: No. A--1325,A--1325
• Citation: 99 N.J.Super. 224,239 A.2d 249
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Chester S. KENDERSKI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 224

99 N.J.Super. 224

239 A.2d 249

STATE of New Jersey, Plaintiff-Respondent, v. Chester S. KENDERSKI, Defendant-Appellant.

No. A--1325.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 8, 1968.

Decided Jan. 29, 1968.

Frederic C. Ritger, Jr., Newark, for appellant (VanRiper & Belmont, Newark, attorneys).

Joseph A. Hoffman, Asst. Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney, Virginia Long Annich, Deputy Atty. Gen., of counsel and on the brief).

Before Judges SULLIVAN, FOLEY and LEONARD.

The opinion of the court was delivered by

SULLIVAN, S.J.A.D.

Defendant was convicted in the Bergen County District Court of driving while under the influence of intoxicating liquor, a violation of N.J.S.A. 39:4--50(a). As a second offender under the statute he was sentenced to three months in jail and his driver's license was revoked for a period of ten years. On appeal to the Bergen County Court, on a trial De novo on the transcript, defendant was again found guilty and the same sentence was imposed. This is an appeal from the latter judgment of conviction.

Defendant was arrested on December 17, 1966 at approximately 3:30 A.M. on the Garden State Parkway. A state trooper on patrol observed defendant driving north at approximately 35 miles an hour in a 60-mile zone, cutting sharply back and forth across the center line of the two northbound lanes and obstructing the flow of traffic that was trying to pass him northbound. The trooper had defendant pull to the side of the road. He then went over to defendant's car and asked to see his license and registration. Defendant fumbled through his wallet but was unable to find them. The trooper noticed that defendant's face was flushed, his speech slurred, and his eyes glassy. He also noticed a distinct odor of alcohol on the defendant's breath. Defendant was placed under arrest and brought back to headquarters in the police car. In getting out of the car and entering the police station defendant appeared to be unsteady on his feet and was assisted by the trooper, who later testified that as a result of his observations of defendant he thought defendant was under the influence of alcohol.

At the station defendant was asked to submit to a breatholizer test. He was advised that no test would be taken forcibly and against physical resistance, but that if he refused, it might result in the loss of his driving privileges. Defendant said he would take the test, and in connection therewith, and in answer to questions propounded to him, stated that he had had five or six drinks in an establishment in East Orange which he was unable to name. He said that he had had his first drink at 1 A.M. and his last drink at approximately 3:30 A.M. The drunkometer reading showed defendant to have .204% By weight of alcohol in his blood.

The foregoing evidence, which was used at the trial, falls into three separate categories: (1) the observations of the police officer concerning defendant's physical appearance and actions, and his opinion as to defendant's condition; (2) defendant's admissions and statements made while in custody, and (3) the breatholizer test and reading.

Defendant did not challenge the admissibility of the evidence in the first category, namely, the testimony by the police officer as to defendant's physical appearance and actions, and his opinion as to defendant's condition. However, with regard to the second and third categories defendant urged at his trial and argues on appeal that this evidence was inadmissible because it was obtained from him while he was in custody and without any admonition being given him that

(1) he had the right to remain silent,

(2) anything he said could be used against him in a court of law,

(3) he had the right to the presence of an attorney, and

(4) if he could not afford an attorney one would be appointed for him prior to any questioning, if he so desired,

as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Both courts below held that the Miranda rule did not extend to a proceeding under the Motor Vehicle Act and refused to exclude the challenged evidence.

Miranda is a development in our criminal law. Its mandate is that an accused or suspect in a criminal case may not be subjected to custodial interrogation unless and until he has been given the fourfold warning specified. The sanction of Miranda is that any Testimonial utterance by a person obtained in violation of its mandate may not be used in evidence at the criminal trial.

The scope of Miranda has not yet been clearly delineated. Courts are now being called upon to decide the extent of its application and, in particular, whether it controls in quasi-criminal and penalty proceedings.

The problem is discussed at some length in State v. Zucconi, 93 N.J.Super. 380, 226 A.2d 16 (App.Div.1967), affirmed 50 N.J. 361, 235 A.2d 193 (1967), an appeal from a conviction of careless driving. There we held that Miranda would not be given retroactive application. We held further that, in any event, there had been no custodial interrogation of defendant so that Miranda was not involved, even if otherwise applicable. We also indicated that Miranda should not extend to a prosecution for careless driving under the Motor Vehicle Act where the only penalty imposed was a fine. However, the Supreme Court, while it affirmed our ruling on the merits, specifically declined to consider the applicability of Miranda to motor vehicle cases in general.

We find it unnecessary to decide the Miranda issue in the instant case. Here defendant's admissions as to his...