State v. Swiderski

• Decision Date: 09 February 1967
• Docket Number: No. A--1074,A--1074
• Citation: 226 A.2d 728,94 N.J.Super. 14
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Edward SWIDERSKI, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 14

94 N.J.Super. 14

226 A.2d 728

STATE of New Jersey, Plaintiff-Appellant, v. Edward SWIDERSKI, Defendant-Respondent.

No. A--1074.

Superior Court of New Jersey Appellate Division.

Argued Jan. 23, 1967.

Reconsidered Feb. 6, 1967.

Decided Feb. 9, 1967.

Thomas L. Yaccarino, Asst. Pros., for appellant (Vincent P. Keuper, Pros., attorney).

Norman Robbins, Woodbridge, for respondent (Edmund Vitale, Jr., Woodbridge, on the brief).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Pursuant to leave granted, the State appeals from a County Court order suppressing evidence of the results of a Breatholizer test in a drunken driving case then pending in the Middletown Township Municipal Court. In entertaining defendant's motion to suppress, the county judge purported to exercise jurisdiction on the authority of R.R. 3:2A--6(a).

The Middletown Township police took defendant into custody after receiving a report from the Raritan Township police that they had noticed his car weaving back and forth on the highway and passing across the center line into the opposite lanes. Defendant was taken to the township police station for driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4--50, and there given a Breatholizer test which showed a positive finding of alcohol. He was then formally charged with drunken driving.

Prior to a hearing before the municipal magistrate, defendant filed a motion in the County Court pursuant to R.R. 3:2A--6(a) to suppress the results of the test. The prosecution moved to dismiss, claiming that the County Court was without jurisdiction because no illegal search and seizure was involved. The county judge denied the motion and ordered that testimony be adduced, specifically with regard to the question of consent. The prosecution was not at the moment prepared to present witnesses; however, following a luncheon recess it elected to proceed with the only one of four possible witnesses it had available--a police officer who had been present at the time the Breatholizer test was given.

Under the circumstances, the hearing proved to be a very brief one, and somewhat unsatisfactory. Defendant testified that he was stopped on the road and brought into police headquarters where he told the officer he had had a few beers--about three small bottles. When shown the Breatholizer apparatus and asked if he had ever seen one like it before, his reply was that he had not and that he wanted his own doctor or any doctor to examine him because he had been taking insulin for a diabetic condition. The officer told him that if he had had only a few beers there was nothing to worry about, and to blow his breath into the Breatholizer. Although still asking for his doctor, defendant breathed into the machine.

The officer testified that the patrolman who gave the test advised defendant how the Breatholizer would operate and asked if he would give his consent. At first defendant said the test was not necessary. Then he said, 'I only had four or five beers. It (the test) won't hurt anyhow.' The officer also testified that at one point defendant had asked for his doctor.

The trial judge concluded that defendant had not consented to the test, as required by L.1951, c. 23, § 30 (N.J.S.A. 39:4--50.1), the statute applicable at the time of the arrest. That section has since been amended by L.1966, c. 142, § 2 (N.J.S.A. 39:4--50.2), subsection (e) of which provides that no chemical test 'may be made or taken forcibly and against physical resistance thereto by the defendant.'

R.R. 3:2A--6(a), under which the county judge purported to act, provides that

'* * * a person claiming to be aggrieved by an unlawful search and seizure, and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding, may apply only to the Superior Court or County Court for the county in which the evidence was obtained for the return of property seized and to suppress the evidence obtained, even though the Offense charged or to be charged may be within the jurisdiction of a municipal court. * * *' (Italics ours)

We were initially of the opinion that the County Court was without jurisdiction, but upon reconsideration of the matter have determined that such a conclusion was erroneous. Our error came about because we read the quoted rule in light of the definition section, R.R. 3:1--3, of Part III, 'Rules Governing Criminal Practice in the Superior Courts and County Courts,' which defines 'offense' as 'an indictable offense.' Since a violation of N.J.S.A. 39:4--50, the drunken driving statute, is not an indictable offense, but one that may be heard by a municipal magistrate--see N.J.S. 2A:8--21, N.J.S.A.--we reasoned that the County Court did not have jurisdiction.

The definition of 'offense' was included in the original rules adopted by the Supreme Court, effective September 15, 1948, as part of Rule 2:1--3. R.R. 3:2A--6 was adopted December 6, 1962, effective January 2, 1963, some 14 years later. It was based upon Federal Rule of Criminal Procedure 41(e). Proceedings of the Fourteenth Annual Judicial Conference (May 4, 1962) (Report of the Supreme Court's Committee on Criminal Procedure, Morning Session, pages 5--6); and see State v. Ferrara, 92 N.J.Super. 549, 550--551, 224 A.2d 159 (Cty.Ct.1966). The purpose of the rule, as explained by Judge Gaulkin, committee chairman, was to make sure that in every case involving a criminal violation a person claiming to be aggrieved by an unlawful search and seizure could move--within 30 days after his initial plea to the charge, unless for good cause the court enlarged the time, and before trial--to obtain the return of the property seized and to suppress the evidence obtained. However, such motion could be brought Only in the County Court or Superior Court for the county in which the evidence was obtained.

It is evident that those who drafted the rule inadvertently overlooked the definition of 'offense' in R.R. 3:1--3 when they used that word in R.R. 3:2A--6(a). The rule itself indicates that it applies to any kind of an offense, whether indictable or not. The person claimed to be aggrieved by an unlawful search and seizure can move to suppress in the County or Superior Court even though the offense charged or to be charged might be within the jurisdiction of the municipal court--a jurisdiction which in the overwhelming number of cases is concerned with nonindictable offenses. Further, the rule refers to evidence that may be moved against the movant in 'any penal proceeding.'

We hold, therefore, that R.R. 3:2A--6(a) is available to any person claiming to be aggrieved by an unlawful search and seizure, whether the charge brought against him relates to an indictable or nonindictable offense. That has been the practical interpretation given the rule since its promulgation in 1962. See Summary of Administrative Directives, Part III, Directive No. 7, p. 31: 'Motions to Suppress Evidence; Rule 3:2A--6' (Office of the Administrative Director of the Courts, April 1965).

The issue, then, is whether defendant properly invoked the jurisdiction of the County Court under R.R. 3:2A--6(a). His counsel concedes that 'there is no Constitutional question of unlawful or unreasonable search and seizure.' (Italics ours). He bases his argument solely on the Statutory requirement of N.J.S.A. 39:4--50.1 before its amendment in 1966. The argument made is that although the Breatholizer test did not violate federal constitutional provisions, it did violate state law and therefore constituted an unlawful search and seizure.

The State does not squarely meet this argument. Noting that defendant did not assert that his arrest was not based upon probable cause, or that the Breatholizer test was not incidental to the arrest, it reasons that the only issue is whether the statutory consent was obtained--a simple question of fact which could readily be determined by the municipal magistrate. Most of the State's brief is devoted to a discussion of the proposition that the Breatholizer test falls outside the protection against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution, citing in support State v. King, 44 N.J. 346, 357, 209 A.2d 110, 9 A.L.R.3d 847 (1965); State v. Blair, 45 N.J. 43, 211 A.2d 196 (1965); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

In King our Supreme Court noted that the overwhelming majority view is that the scope of the privilege against self-incrimination is limited to what Professor Wigmore characterized as 'testimonial compulsion,' 8 Wigmore, Evidence (McNaughton rev. 1961), § 2263, p. 378. As examples of types of examination or inspection outside the scope of the privilege because nontestimonial in character, the court cited 'fingerprinting, photographing, examination of the body of a person for identifying characteristics, drunkometer tests and blood tests,' all of which might be compelled since to do so would not require the witness to disclose any knowledge he might have. The court did not there deal with the consent requirement of N.J.S.A. 39:4--50.1.

The sole issue in State v. Blair was whether the trial judge had correctly ruled that the State had the burden of affirmatively proving that before the blood specimen was taken, defendant, who stood charged with drunken driving and reckless driving, was advised of his constitutional rights, i.e., the privilege against self-incrimination. The court held that the taking of a blood sample is not covered by the privilege, and so a defendant need not be informed that because the results might be used against him, he could refuse to consent to the test. The court noted that N.J.S.A. 39:4--50.1 required that defendant give his express consent before a blood...