McGeehan, Jayne and Goldmann. The opinion of the court was delivered by Goldmann, J.A.D.
[20 NJSuper Page 21] Defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor, in violation of R.S. 39:4-50, after a
trial de novo before the Union County Court on appeal from the Municipal Court of the Borough of Roselle Park. He was sentenced as a second offender to the county jail for a period of 90 days, and his driver's license permanently revoked. The County Court also found defendant guilty of operating a motor vehicle while his driver's license stood revoked, in violation of R.S. 39:3-40, and imposed a fine of $100 and costs for this offense.
Defendant now appeals to this court from the County Court judgment of conviction on the drunken driving charge. The question he raises is: "Can a violation of R.S. 39:4-50 be substantiated by facts which disclose that the drunken condition of the defendant was due to a combination of alcoholic beverage and medication prescribed for him by a doctor?" In his supplemental brief defendant further argues that the State failed to establish the truth of the drunken driving charge beyond a reasonable doubt.
About midnight of October 1-2, 1950, a police officer noticed a truck coming toward him on Westfield Avenue, Roselle Park, weaving from curb to safety aisle and back. It had no front lights and dark smoke was pouring from the radiator. The officer brought the truck to a halt and ordered the defendant to shut off the ignition. He observed that the right front of the truck was damaged; the end of the bumper was hanging, the fender was dented, the headlight broken and the hood sprung and dented. When the defendant got out of the truck he staggered as he walked. His speech was slurred and his breath smelled of alcohol. The officer described defendant as "arrogant" both at the time of his arrest and later at the police station. In his opinion, defendant was under the influence of liquor and should not have been driving.
A radio car was called and defendant taken to the police station. There he was examined by the police physician between 12:21 and 12:50 A.M. He told the doctor that he had not seen a physician for two months, had not taken any medicine, and had sustained no injuries.
Defendant admitted having had several beers, and more after that. He had a heavy alcohol breath, he staggered and swayed, his pupils were dilated and did not react to a beam of light, his speech was slurred and his conduct arrogant. The doctor found defendant's ability to concentrate poor. The usual tests were given. Defendant was asked to hold out first one arm and then the other, and to bring his finger to his nose while his eyes were closed. There was no coordination; he missed consistently, touching his lip, chin and cheek. He tried to pick a coin from the floor; he missed it and finally managed fumblingly to pick it up. He staggered and swayed in attempting to walk a straight line. Finally, it took him 15 minutes to add some figures, and the answer was wrong. The doctor concluded on the basis of all the tests and his observations that defendant was under the influence of liquor and in no condition to operate a motor vehicle.
The arresting officer and the two radio car men were present during the examination and confirmed the doctor's testimony. One of the latter testified that defendant first told the doctor he hadn't been drinking, but then admitted to having had four beers and perhaps more. The other testified that defendant was belligerent and uncooperative.
The defense testimony throughout was designed to establish that defendant's condition was due to the benadryl capsules he was taking for hay fever. His doctor testified that he had last seen defendant in August, when he prescribed three benadryl capsules a day for hay fever. It was his experience that benadryl tended to make a person drowsy. A medical expert testified that benadryl is an anti-histamine and may or may not have side effects, such as drowsiness, dizziness, dry mouth and slowed reaction time, depending on the person and the dosage.
Defendant's brother-in-law, a tavern owner, testified that defendant came to his place at 11:15 P.M. on October 1, 1950, and had three or four "short" beers. The defendant took the stand and said that he had Sunday dinner at home at 1 P.M., drove to Newark for a fuel pump part and spent
the afternoon and evening with friends playing cards. He denied drinking anything before dropping in at his brother-in-law's, where he first took a benadryl tablet (his earlier testimony was that he had taken two) and then had four or five short beers, at most. He had had nothing to eat since noon. He admitted having an accident while driving home from the tavern. He did not testify that he was drowsy or otherwise affected by the capsules. Nor did he specifically deny that he was in any degree under the influence ...