Eastwood, Bigelow and Jayne. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendant Louis M. Ahrens appeals from the judgment of conviction for operating an automobile while under the influence of intoxicating liquor in violation of the provisions of R.S. 39:4-50.
On August 7, 1952 the defendant was arrested without a warrant by a Morristown police officer, incarcerated in the municipal jail, examined by the police surgeon and charged with the aforementioned offense. Approximately 30 minutes after defendant's arrest he was given a traffic ticket summons in the form prescribed by Rule 8:10-1. The defendant remained in jail overnight and was released the following morning, when he posted bail.
The return day fixed by the summons was August 14, 1952. Adjournments from August 14 to the 21st and then again from the 21st to September 4, were granted at defendant's instance. On the application of the complainant, the hearing was adjourned to September 10. At that time the defendant unsuccessfully moved for dismissal on three grounds, viz.: (1) that no complaint against the defendant had been taken; (2) that no warrant for the defendant's arrest had been issued; and (3) that the court had no jurisdiction because it had adjourned the case beyond 30 days from the date of the arrest without warrant. Thereupon defendant declined to plead, defend or participate in the hearing.
It is the defendant's contention that having been arrested without a warrant, the subsequent issuance of the summons was superfluous and inefficacious; that if written process were to follow by virtue of R.S. 39:5-25, it must be by warrant; that under the statute, methods of apprehension and charge are in the alternative; i.e. , arrest, with or without a warrant, or by summons and complaint; that R.S. 39:5-8 imposes a statutory limitation of 30 days following arrest, or return day of the summons or warrant, within which a hearing must be held, else the magistrate loses jurisdiction to hear the matter; that the hearing not having
been held within 30 days of the date of arrest, the magistrate was without jurisdiction to hear and determine the matter.
The pertinent part of R.S. 39:5-8 provides:
"A hearing to be held pursuant to this subtitle shall, on the request of either party, or in the discretion of the magistrate, be adjourned for a period not exceeding thirty days from the return day named in a summons or warrant or from the date of an arrest without warrant, as the case may be. * * *"
The primary purpose of this provision is to assure a reasonably prompt disposition of the complaint in the public interest and afford the accused the means of a fair trial. Grobarz v. Slayton , 130 N.J.L. 597 (Sup. Ct. 1943), affirmed 131 N.J.L. 326 (E. & A. 1944).
The defendant argues that R.S. 39:5-25, as amended, L. 1940, c. 139, p. 303, sec. 1, is controlling here. It provides, inter alia:
"Any constable, police officer, peace officer, motor vehicle inspector or the commissioner may, without a warrant, arrest any person violating in his presence any provision of chapter three of this Title (39:3-1 et seq.), * * *. If the arrest is for a violation of section 39:4-50 of this Title, the arresting officer may, if no magistrate, clerk or deputy clerk is available, detain the person arrested either in any police station, lockup or other place maintained by any municipality for the detention of offenders or in the common jail of the county, for such reasonable time as will permit the arresting officer to obtain a warrant for the offender's further detention, which temporary detention shall not exceed twenty-four hours from the time of the arrest. * * *"
But, consideration must be given to Rule 8:4-1(a), which provides:
"An officer making an arrest under a warrant issued upon a complaint shall take the arrested person, without unnecessary delay, before the court or magistrate named in the warrant. A person making an arrest without a warrant shall take the arrested person, without unnecessary delay, before the nearest available ...