State v. Miller

• Decision Date: 25 November 1960
• Docket Number: No. A--645,A--645
• Citation: 165 A.2d 829,64 N.J.Super. 262
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John S. MILLER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 262

64 N.J.Super. 262

165 A.2d 829

STATE of New Jersey, Plaintiff-Respondent, v. John S. MILLER, Defendant-Appellant.

No. A--645.

Superior Court of New Jersey Appellate Division.

Argued Nov. 1, 1960.

Decided Nov. 25, 1960.

Ronald Picinich, River Edge, for appellant (John J. Cariddi, Hackensack, of counsel).

William C. Brudnick, Sp. Asst. Prosecutor, Hackensack, for respondent (Guy W. Calissi, Bergen County Prosecutor, Hackensack, attorney).

Before Judges GAULKIN, SULLIVAN and FOLEY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Defendant was convicted in the municipal court, and upon trial De novo in the County Court, of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4--50. Now he appeals to this court, upon the grounds that (1) the result of a Drunkometer test was improperly received in evidence and used by the County Court as a basis for its decision, and (2) without that testimony the evidence was not sufficient to prove defendant guilty.

The State says, in its answering brief, that 'the opinion of the court below clearly establishes that the basis of its finding of guilty rested upon 'very heavy testimony of the people who observed' defendant rather than the Drunkometer finding and its presumption.' If the trial court had plainly said that the evidence other than the Drunkometer testimony established defendant's guilt, and we agreed, we would not reach the question of the reception of the Drunkometer testimony.

However, we cannot say with assurance, after reviewing the testimony and the opinion of the County Court, that the Drunkometer evidence did not influence its conclusion of guilt. For example, the doctor who examined defendant at the request of the police, after stating that he came to police headquarters 'to examine him, to see if he were fit to drive an automobile,' testified that 'his eyes were not remarkably significant,' though 'the pupils were somewhat sluggish'; his reflexes were 'not abnormal,' and he could repeat 'the words I asked him * * * pretty well' though 'he was unable to walk a straight line without holding on to the wall'; and that 'I concluded he had been drinking,' (which defendant never denied) but 'I didn't come to any definite conclusion as to whether he was fit or unfit to drive an automobile.' Of course, the test is not fitness or unfitness to drive an automobile, but rather whether the defendant 'has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.' State v. Fmery, 27 N.J. 348, 355, 142 A.2d 874, 879 (1958). The prosecutor did not ask the doctor, nor did the doctor say, whether the defendant was under the influence of intoxicating liquor, either in the terms of State v. Emery or otherwise.

On cross-examination the doctor testified:

'Q. * * * And you have no opinion as to whether or not he was under the influence of liquor or beer? A. Well, he was drinking. I have no opinion as to whether he was fit or unfit to drive, no.'

Even in a trial without jury, 'a defendant should not be required to contend with inadmissible evidence where it appears that it may have a prejudicial effect,' State v. Hintenberger, 41 N.J.Super. 597, 604, 125 A.2d 735, 739 (App.Div.1956); and a new trial must be granted where 'it is pure speculation as to whether the court, in reaching its determination' disregarded it, State v. Dietz, 5 N.J.Super. 222, 68 A.2d 777, 779 (App.Div.1949). Cf. State v. Hulsizer, 42 N.J.Super. 224, 229, 126 A.2d 47 (App.Div.1956). We must therefore deal with the Drunkometer testimony.

Joseph Wolkamir testified that he was a state trooper 'stationed at the Pompton Lakes station,' and that he was 'also a Drunkometer operator.' Then (after several pages of testimony which had nothing to do with the Drunkometer except his statement that defendant had refused to take the Drunkometer test until his own doctor arrived), he testified as follows:

'Q. Now, Officer, subsequent to this time, when you completed the oral and physical examination, did you give this defendant a Drunkometer test? A. I did, sir.

'Q. And at what time did that test take place? A. At--I was preparing to leave, when the defendant requested a Drunkometer test.

'At 2:37 A.M. the test was given to the defendant. It was completed at 2:40 A.M., with a reading of .21.

'Q. And what did this test consist of? A. This was by use of the Drunkometer, a chemical test to determine the amount of alcohol, thereby determining, under the Statute, whether the defendant is fit or unfit to operate a motor vehicle.

'Q. And what was the reading, sir? A. .21%.

'Mr. Ryan: No further questions, Officer. Thank you very much.

'The Court: Cross examination.

'Mr. Cariddi: If your Honor please, I make application to the Court at this time to strike from the records, that your Honor not consider any evidence pertaining to the result of the Drunkometer, for the simple reason that the State has failed to lay a proper foundation to qualify the Trooper as an expert; and secondly, secondly--

'The Court: I note your objection on his part to giving testimony.

'Mr. Cariddi: * * *

'I move at this time that * * * that portion of his testimony, be stricken from the record. He hasn't been qualified, and there is no evidence as to how he arrived at the result, except that the result was .21.

'The Court: I'll deny your motion.'

The State contends that these objections came too late.

As we have seen, there were two separate grounds of objection: (1) that there was no showing that the trooper was qualified, and (2) no evidence 'as to how he arrived at the result,' which we understand to mean as to how the test was conducted. Had the only objection been to the trooper's qualifications, it could perhaps be argued with some grace that defendant's objection came too late. Precipio v. Insurance Company of Penn., 103 N.J.L. 589, 594, 137 A. 549 (E. & A. 1927); State v. Greul, 59 N.J.Super. 34, 39, 157 A.2d 44 (Cty.Ct.1959); but compare Electric Park Co. v. Psichos, 83 N.J.L. 262, 265, 83 A. 766 (Sup.Ct.1912), and see Polulich v. J. G. Schmidt Tool Die & Stamping Co., 46 N.J.Super. 135, 143, 134 A.2d 29 (Cty.Ct.1957). But the same argument may not justly be made against the second objection. To begin with, it must be noted that the statement 'with a reading of .21' was volunteered by the trooper--the question which had been asked of him was 'at what time did that test take place?' True, defense counsel should have moved to strike that statement then, but the next question 'and what did this test consist of?' appeared to go forward toward the supplying of the basis for the .21 reading. The answer given by the trooper did not describe the test, and therefore defense counsel should have urged his objection when the following question--' and what was the reading, sir?'--was asked, and before it was answered. However, the question merely called for a repetition of the answer previously volunteered, and he did voice his objection to the judge immediately after the trooper repeated '.21%' and the prosecutor announced he had no further questions.

The Chemical Tests For Intoxication Manual prepared by the Committee on Medicolegal Problems of the American Medical Association (1959) says (p. 30) that:

'Under properly controlled conditions, which include proper training and continuing expert supervision of competition operators and adequate expert control of equipment, reagents, and procedures, the on-the-spot tests are also capable of yielding accurate breath alcohol concentration results, acceptable as an index of blood alcohol concentration of adequate reliability for clinical and legal purposes.'

In a symposium on 'Breath Alcohol Tests,' reported in 5 Journal of Forensic Sciences 395--444 (1960), Robert F. Borkenstein, Chairman, Department of Police Administration, Indiana University, said (p. 400): 'Obtaining appropriate breath for analysis is the basic problem in breath tests' and (p. 402) 'The Drunkometer is as reliable as the training of the operator and the care in preparation and maintenance of the solutions.'

Therefore, considering the brevity of the examination and the emptiness of the answers, the court should have honored the objection, even if not absolutely timely, and should have required the State to supply the foundation testimony. Cf. State v. Hunter, 4 N.J.Super. 531, 536, 68 A.2d 274 (App.Div.1949); Electric Park Co. v. Psichos, supra; Polulich v. J. G. Schmidt Tool Die & Stamping Co., supra. State v. Greul, supra, is not to the contrary, for there defendant did not voice his objection until after the State had rested. Compare, also, State v. Dantonio, 18 N.J. 570, 580, 115 A.2d 35, 41, 49 A.L.R.2d 460 (1955) where the Supreme Court, dealing with 'radar speedmeter' readings, said:

'The defendant points out that there was no affirmative evidence introduced by the State to establish that the speedometers in the Troopers' cars had been recently tested. It would, perhaps, have been the better course for the State to have...