State v. McGeary

• Citation: 129 N.J.Super. 219,322 A.2d 830
• Parties: , 77 A.L.R.3d 106 STATE of New Jersey, Plaintiff-Respondent, v. Thomas J. McGEARY, Defendant-Appellant.
• Decision Date: 08 July 1974
• Court: New Jersey Superior Court – Appellate Division

Page 219

129 N.J.Super. 219

322 A.2d 830, 77 A.L.R.3d 106

STATE of New Jersey, Plaintiff-Respondent, v. Thomas J. McGEARY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 3, 1973.

Resubmitted for Determination May 20, 1974.

Decided July 8, 1974.

Mayo, Lefkowitz & Shihar, New Brunswick, for defendant-appellant (Leslie S. Lefkowitz, New Brunswick, on the brief).

John S. Kuhlthau, Middlesex County Prosecutor, for plaintiff-respondent (Lawrence Silver, Asst. Prosecutor, on the brief).

Before Judges COLLESTER, LYNCH and MICHELS.

The opinion of the court was delivered by

MICHELS, J.A.D.

Defendant was found guilty in the Municipal Court of the Township of Piscataway of driving while under the influence of intoxicating liquor, in violation of the provisions of N.J.S.A. 39:4--50(a). His driver's license was suspended for two years and a $200 fine imposed. He appealed to the Middlesex County Court where, after a trial De novo on the record below, he was again found guilty and the same sentence imposed. The judgment was stayed pending the outcome of an appeal to this court.

Defendant contends that reversible error was committed by allowing into evidence the inspection certificate to establish that the Breathalyzer was in proper operating order, without requiring the State Police coordinator who actually inspected the instrument to testify, and that in the absence of evidence of the results of the Breathalyzer test there was insufficient evidence to support a conviction of driving under the influence of alcohol in violation of the provisions of N.J.S.A. 39:4--50(a).

We are satisfied that there was sufficient credible evidence in the record to support the finding of guilt without considering the result of the Breathalyzer test. See State v. Johnson, 42 N.J. 146, 157--162, 199 A.2d 809 (1964). Defendant was observed operating his vehicle in an erratic manner. In fact, his vehicle was observed crossing the center lane going into the oncoming lane of traffic and back into the proper lane again. When defendant was stopped by the police officers a strong odor of alcohol was detected on his breath, and he had difficulty finding his driver's license in his wallet until it was pointed out to him by the officers. When defendant was asked if he had been drinking, he responded in the affirmative and in fact stated, in response to a question as to how much he had been drinking, 'too much.' Moreover, defendant did not even know whether he was in Piscataway or Parlin, which are ten miles apart. When he was placed under arrest and taken to the police station, where he performed various physical tests, he was unsteady on his feet and evidenced a lack of coordination. Finally, one of the experienced police officers testified that defendant was 'definitely under the influence of alcoholic beverage.' The evidence was overwhelming in support of his conviction without regard to the Breathalyzer reading.

The County Court judge commented that even in the absence of the Breathalyzer reading it 'would have no doubt about the fact that this man had been affected and was impaired by the consumption of alcoholic beverages.' The suggestion that the county judge did not find defendant guilty of violating N.J.S.A. 39:4--50(a) is completely without merit. The statement quoted above must be considered in its context. Defendant was not charged with nor was any argument made that he should be found guilty of operating a motor vehicle while his ability was impaired by the consumption of alcohol pursuant to N.J.S.A. 39:4--50(b). Obviously the trial judge was merely expressing his finding of drunken driving in the light of its legal connotation. In State v. Emery, 27 N.J. 348, 355, 142 A.2d 874, 878 (1958), the Supreme Court expressly held that it is not a prerequisite to a conviction of driving under the influence of intoxicating liquor 'that the accused be absolutely 'drunk,' in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.' See also State v. Johnson, Supra, 42 N.J. at 165--166, 199 A.2d 809; State v. Rodgers, 91 N.J.L. 212, 215, 102 A. 433 (E. & A. 1917); State v. Glynn, 20 N.J.Super. 20, 25, 89 A.2d 50 (App.Div.1952); State v. Miller, 64 N.J.Super. 262, 265, 165 A.2d 829 (App.Div.1960). The County Court's finding that 'this man had been affected and was impaired by the consumption of alcoholic beverages' cannot reasonably be interpreted to mean that defendant was merely found guilty of operating a motor vehicle while impaired by consumption of alcohol under N.J.S.A. 39:4--50(b).

The thrust of defendant's argument, that it was error for the courts below to admit into evidence the inspection certificate of the Breathalyzer instrument as a business record, is that defendant was thereby deprived of the opportunity to cross-examine the State Police coordinator as to his qualifications to test the Breathalyzer and as to the procedure followed by him in actually testing the instrument to determine whether it was in proper operating order. Defendant relies for support upon the following excerpt from the Supreme Court opinion in State v. Johnson, Supra.

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given coorectly (as well as the fact that the defendant consented orally or in writing). * * * (42 N.J. at 171, 199 A.2d at 823)

Defendant also argues that even if the inspection certificate is a business record within the meaning of Evid.R. 63(13), the State failed to lay a proper foundation for its admissibility under the rule, or to properly authenticate it, pursuant to Evid.R. 67. The County Court judge followed decisions of courts in the same county, wherein inspection certificates have been admitted in evidence as business records to prove that the Breathalyzer was in proper operating order. Other courts have accepted inspection certificates as proof of this essential fact. See, E.g., Sate v. Hudes, 128 N.J.Super. 589, 321 A.2d 275 (Cty.Ct.1974). Contra, State v. Conners, 125 N.J.Super. 500, 311 A.2d 764 (Cty.Ct.1973).

The Breathalyzer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test. State v. Johnson, Supra, 42 N.J. at 170--171, 199 A.2d 809; State v. Miller Supra, 64 N.J.Super. at 268, 165 A.2d 829. Obviously, as pointed out by the Supreme Court in State v. Johnson, Supra, 'it is * * * most essential * * * that proper administration of the test be clearly established before the reading is admitted in evidence,' and 'this includes full proof that the equipment was in proper order. * * *' However, we do not construe this language to mean that the State is limited solely to the testimony of the state trooper who inspected and tested the Breathalyzer in order to establish that it was in good operating order. Evid.R. 63(13) provides:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove the facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

'A business,' as used in Evid.R. 63(13), includes 'every kind of business, governmental activity, profession, occupation, calling or operation of institutions, whether carried on for profit or not,' (Evid.R. 62(5)), and it is now clear that police reports with certain qualifications are admissible under Evid.R. 63(13) as an exception to the hearsay rule. See Brown v. Mortimer, 100 N.J.Super. 395, 403--404, 242 A.2d 36 (App.Div.1968); Schneiderman v. Strelecki, 107 N.J.Super. 113, 119, 257 A.2d 130 (App.Div.1969); certif. den. 55 N.J. 163, 259 A.2d 915 (1969); Sas v. Strelecki, 110 N.J.Super. 14, 20, 264 A.2d 247 (App.Div.1970). Cf. Fagan v. Newark, 78 N.J.Super. 294, 319, 188 A.2d 427 (App.Div.1963).

The inspection and testing of Breathalyzer instruments in New Jersey are performed by members of the State Police pursuant to their official duties. The inspection is performed on a regular basis by a State Police coordinator (coordinator) specially trained to perform this function. See N.J.A.C. 13:51--2.2 and 13:51--3.4 adopted by the Attorney General of New Jersey, Department of Law and Public Safety, pursuant to the authority conferred by N.J.S.A. 39:4--50.3. Unquestionably, the coordinator has a duty to perform an inspection and to record the results thereof honestly and accurately. The duty of truthfulness in completing the inspection certificate, certifying that the instrument 'has been inspected and found to be in good operating order' is compelling. ¹ In fact, it is difficult to conceive that a coordinator would violate this duty and certify that an instrument had been inspected and found to be in good operating order when in truth and in fact it had not been so found. Certainly, if the inspection of the instrument revealed that it was not operating properly and required repairs or adjustments of any kind, there is little likelihood of and absolutely no reason for the fabrication of the inspection certificate. No purpose would be served thereby. It is not only important to and in the interests of a defendant that the Breathalyzer be in proper operating order, but it is equally important to and in the interest of the State and the citizens thereof. If the instrument were not in good operating order and the...