State v. Samarel
| Decision Date | 10 March 1989 |
| Citation | 555 A.2d 40,231 N.J.Super. 134 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Kenneth M. SAMAREL, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Francis X. Moore, Red Bank, for defendant-appellant (Michael R. Speck, Bradley Beach, on the brief).
John Kaye, Monmouth County Prosecutor, for respondent (Mark P. Stalford, Asst. Prosecutor, of counsel).
Before Judges KING, BRODY and SKILLMAN.
The opinion of the court was delivered by
BRODY, J.A.D.
After trying the matter de novo on the record made in a municipal court, the Law Division found defendant guilty of having a blood alcohol concentration of .10% or more by weight of alcohol in his blood while operating a motor vehicle (DWI). 1 N.J.S.A. 39:4-50(a). We stayed the sanctions imposed pending this appeal.
At about 2:30 a.m., Christmas 1985, defendant, then 17 years old, failed to negotiate a curve and drove his car off the road. The car tumbled down a slope and landed on its roof in a field. Defendant's girlfriend, one of his four passengers, was seriously injured in the accident. She was still in a coma at the time of the municipal court trial more than a year and a half later.
When the police first arrived at the scene, defendant told an officer that the accident occurred when he lost control of his car while it was travelling 65 miles an hour. Defendant and the passengers were transported to a hospital where defendant received out-patient treatment and was then released to an officer who drove him to headquarters to administer a breathalyzer test. Defendant had refused the officer's request to have his blood tested at the hospital.
Defendant waived his Miranda rights at 5:40 a.m., soon after he arrived at headquarters. The officer thereafter asked him the usual preliminary questions before administering a breathalyzer test. In the course of answering those questions, defendant admitted that he had consumed "five shots" of Southern Comfort at a friend's house from 10:30 p.m. earlier that night until 12:15 a.m. The officer administered the test twice, using a Draeger breathalyzer. Both tests, one administered at 5:51 a.m. and the other at 6:00 a.m., produced a reading of .10% blood alcohol.
At first defendant was charged with juvenile delinquency for committing what would otherwise have been a fourth-degree assault by auto upon his girlfriend. N.J.S.A. 2C:12-1c. The elements of the offense are "recklessly" driving a vehicle so as to cause another "serious bodily injury." On July 1, 1986, a family part judge signed an order "that the case be dismissed with prejudice." The order does not recite any reasons for its entry. Defendant has not presented us with a transcript of proceedings that might shed light on the matter and he offers no explanation for why the order was entered. When the Law Division judge asked defendant's present attorney, who did not represent defendant in the family part, what he knew of the matter he replied:
Why Judge to this very minute, I don't know why that dismissal took place. I've reviewed this file thoroughly.
When the judge then asked for a transcript of the family part proceedings, defendant's attorney responded:
* * *
* * *
I cannot with all sincerity sit before, your Honor, or stand before, your Honor, and give your Honor a reason or excuse as to why that transcript was never obtained; but it wasn't.
The matter was dismissed with prejudice.
Relying solely on State v. DeLuca, 208 N.J.Super. 422, 506 A.2d 55 (App.Div.1986), defendant contends that the present prosecution unconstitutionally places him in jeopardy a second time for essentially the same charge that the family part judge had dismissed with prejudice. We note that counsel for neither party called to our attention that the Supreme Court reversed DeLuca more than a year before defendant filed his brief in this appeal. State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987). The issue in that case was whether double jeopardy barred trial of a defendant for DWI after she had been acquitted by a jury of causing a death by auto. The Supreme Court remanded the matter to the Law Division to determine whether in attempting to prove the recklessness element of death by auto the State had relied solely on the defendant's intoxication. "If, however, other evidence was adduced, the DWI prosecution will not be barred." Id. at 109, 527 A.2d 1355.
Our main concern here, not addressed in defendant's brief, is the preliminary question of whether jeopardy ever attached in the family part action. When he argued the matter in the municipal court, defendant's present attorney contended that jeopardy attached "the minute [the family part complaint] was filed." The law is clearly otherwise. "In a nonjury trial [jeopardy] attaches when the first witness is sworn." State v. Lynch, 79 N.J. 327, 341, 399 A.2d 629 (1979). Defendant concedes that no witness had been sworn before the family part action was dismissed.
We are left with the question of whether the notation "with prejudice" in the order of dismissal was fairly understood by defendant to be a bar to a later DWI prosecution:
In applying the prohibition against double jeopardy, the emphasis should be on underlying policies rather than technisms. The primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals. [State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964).]
Dismissal of criminal charges may or may not bar a later prosecution, depending on whether the dismissal was grounded on bases related to guilt or innocence. State v. Lynch, 79 N.J. at 342, 399 A.2d 629. Ordinarily a dismissal before trial does not bar later prosecution. State v. Fary, 16 N.J. 317, 324-325, 108 A.2d 593 (1954).
Given the evidence in the record of the present trial, it seems highly unlikely that the dismissal of the assault charge was related to defendant's guilt or innocence. We would have to know the circumstances of that dismissal to know whether defendant fairly understood that the family part judge used the expression "with prejudice" in order to bar a later DWI prosecution. Having chosen not to inform us of those circumstances, defendant cannot expect us to sustain his double jeopardy defense by assuming that those circumstances gave him a legitimate expectation that he would not later be charged with DWI.
Defendant next argues that the results of a Draeger breathalyzer may not be used as evidence because the State failed to demonstrate that the breathalyzer used to test defendant, a Draeger model 900, had been approved by the Attorney General as required by N.J.A.C. 13:51-3.2. See N.J.S.A. 39:4-50.3 and N.J.S.A. 12:7-56. The argument is without merit. N.J.A.C. 13:51-3.5 expressly provides that the Attorney General has approved the "Breathalyzer, Model 900." Defendant's attorney conceded in his argument below that the "Administrative Code [does] not, specifically ... approve a manufacturer and I concede that." The Attorney General did not limit his approval to any particular manufacturer's model 900 breathalyzer. Also, N.J.A.C. 13:51-3.4 directs "[p]eriodic inspections of all approved instruments ... by a Breath Test Coordinator/Instructor." As noted below, the breathalyzer used to test defendant was periodically inspected by a coordinator so it may reasonably be inferred that the Attorney General had approved its use.
We do not agree with defendant's argument that the Supreme Court has approved the use of Smith and Wesson's breathalyzer model 900 to the exclusion of other manufacturers' breathalyzer models 900. Romano v. Kimmelman, 96 N.J. 66, 82, 474 A.2d 1 (1984) held that
models 900 and 900A are scientifically reliable for the purpose of determining the content of blood alcohol.... In addition, we hold that the results of a breathalyzer test shall be generally admissible in evidence when the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted procedures, and that such results may, upon the establishment of these conditions, form the basis upon which a conviction of violating N.J.S.A. 39:4-50 may be obtained.
Although in its opinion the Supreme Court referred only to Smith and Wesson breathalyzers, that was simply because Smith and Wesson was the manufacturer of the breathalyzer models whose use was challenged in that case.
Defendant does not suggest that the Draeger breathalyzer model 900 is in any way different from the Smith and Wesson model 900. The description of the Smith and Wesson breathalyzer and the method of its operation appearing in the Romano opinion, id. at 79-89, 474 A.2d 1, is essentially the same as the description of the Draeger...
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