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State v. Ash

Decided: October 1, 1952.


McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c.


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 Essex County Court on appeal from the Municipal Court of the Town of Bloomfield. He was sentenced as a second offender to the county jail for a period of three months and his driver's license permanently revoked. Defendant now appeals to this court from the Essex County Court's judgment of conviction.

About 3 A.M. on November 16, 1951 defendant was observed by a police officer on Bloomfield Avenue in the Town of Bloomfield. The officer's attention was attracted by the defendant's swaying and the abnormal way in which he was walking. There is no doubt that the police officer was in

conversation with the defendant. There is some dispute, however, as to whether certain conversations took place in a diner or whether they took place outside on the street. Be that as it may, there is no question that the police officer advised the defendant, after talking with him, not to operate his automobile, stating that he did not think the defendant was fit to operate his vehicle due to the fact that the defendant had been drinking. Notwithstanding the police officer's admonition, defendant did start up and drive his automobile. The officer then stopped the defendant and asked for the usual information, such as driver's license and automobile registration.

The officer testified that the defendant staggered, "that he did not maneuver too well," that his cheeks were rosy, that his eyes appeared cloudy, that his hat was tilted on the back of his head, and that defendant dropped part of the contents of his wallet on the street when asked to produce his driver's license. Defendant was taken to the Bloomfield police headquarters where he was examined by Dr. Galioto, a licensed physician, who testified that he had been police surgeon of the Town of Bloomfield for 16 years and that he made the examination at approximately 3:30 A.M. on November 16, 1951.

Dr. Galioto testified that the defendant staggered and swayed, that his face was flushed, that his eyes were injected, that his pupils were mid-dilated, that his speech was thick, that the defendant failed to pass the test of touching his nose with his finger when his eyes were closed, that when his eyes were shut and hands outstretched he swayed considerably, that he failed in the test of walking a white line to test his equilibrium, and that the defendant admitted that he had been drinking Scotch, stating that he had partaken of "many or quite a few." The doctor admitted that the defendant had passed the coin test in that he had picked up a coin which was dropped to the floor by the doctor fairly well. No blood test was performed because, as the doctor explained, the defendant admitted that he had been drinking.

On cross-examination the doctor admitted that there was no impairment of defendant's mental faculties and that the defendant's demeanor was calm and that he was thoroughly cooperative. The doctor further testified that his opinion as to the influence of alcohol was based solely upon the physical manifestations of muscular coordination and that he found no impairment of mental faculties.

Several police officers, in addition to the arresting officer, testified that the defendant swayed, that the defendant admitted drinking "several Scotches," that there was a smell of alcohol on the defendant's breath, and that he staggered when in police headquarters.

Defendant testified that he had been drinking. He had first been to his nephew's birthday party (a 12-year-old boy) where no liquor had been served and then that he, in the company of friends, went to a Thanksgiving party at the Topper's Club and there had three drinks. It is defendant's contention that he was not under the influence of intoxicating liquor, that he had been up 18 hours, that it is normal for his speech to be thick and that he suffers from a heart ailment. He maintains that these factors account for his appearance as described by the State's witnesses.

Dr. Oscar R. Deutel testified that he had been practicing for 20 years and that he was the defendant's family physician, that the defendant suffered a coronary condition in 1940 and that the condition is chronic. He further testified that unless there is an impairment of mental faculties there cannot be any influence of intoxicating liquor and that the lack of coordination described could be due to 20 or 30 causes.

Dr. Smoger, an interne at the Mountainside Hospital in Montclair, who is indirectly related to the defendant and who was present at the birthday party for the nephew, testified that he came to police headquarters in Bloomfield about 5 A.M., and while he admitted that he did not ...

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