This is an appeal from a conviction of the defendant in the Municipal Court of the Town of Secaucus on a charge of "operating vehicle while under influence of liquor." A stenographic record having been made in that court, the appeal was heard de novo on the record. R.R. 8:7-5.
The record discloses that Trooper James Kearns observed the defendant's vehicle, with parking lights on, parked on the grass section of the shoulder of the New Jersey Turnpike at milepost 113, northbound, in the Town of Secaucus, and upon investigation found the defendant sitting in the driver's seat with his head lying against the window of the door on the driver's side. In attempting to arouse the defendant, the trooper found the door on the driver's side locked. He tried to awaken him by knocking upon the window against which his head was lying, but to no avail. Failing in this, he proceeded to the other side of the car and found that the front door thereof was unlocked. Upon opening it, he ascertained that the engine was running and the radio was playing and he smelled the odor of alcohol. He awakened the defendant and had him get out of the car. He observed
that he had difficulty in holding his balance. The toll ticket issued at Secaucus, East toll booth, in the possession of the defendant, was stamped at 10:04 P.M. The trooper came upon the defendant's car at 11:05 P.M. Believing that the defendant was under the influence of intoxicating liquor and unfit to operate a motor vehicle, the trooper brought him to the Newark station for clinical and drunkometer examinations, which were administered by Trooper William J. Burke in the presence of Trooper Kearns. These tests were commenced at 11:35 P.M. As a result of the clinical tests, later corroborated by the drunkometer test, which the operator computed at .23 per centum of alcohol in the defendant's blood, the defendant was charged with "operating vehicle while under influence of liquor" and a summons was issued by the arresting officer to the defendant to that effect.
The summons and complaint were in the form prescribed by R.R. 8:10-1. After the words on said summons and complaint "and did then and there commit the following offense(s)" appear "39:4-50." After the State had presented its testimony the defendant moved to dismiss the complaint upon several grounds, which are now urged on this appeal. The trial judge denied all motions. The defendant, urging that the court had no jurisdiction to hear the matter, did not take the stand in his own behalf. He was found guilty and sentenced to the Hudson County jail for a period of ten days. The serving of said sentence was stayed by the court pending appeal.
Defendant urges four grounds for reversal, namely, (1) there was no proof of operation of the automobile by defendant; (2) there was reasonable doubt as to the insobriety of the defendant; (3) that three essential elements to admissibility of evidence on drunkometer test are lacking, and lastly (4) that the court lacks jurisdiction because complaint is fatal in that the offense is brought under R.S. 39:4-50 and should have been brought within the provision of R.S. 27:23-26.
The court will consider each of these grounds separately.
As the New Jersey Turnpike is a toll road, the motor vehicle in which the defendant was found had, of necessity, to pass through a toll booth in order to gain access thereto. A ticket would be given to the driver of that motor vehicle setting forth the toll booth entered and the time. There is no evidence that any one else was with the defendant. Such a toll ticket was found in the possession of the defendant. Further, it was elicited that defendant had left New York, that his home was in Wallington, N.J., and in order to arrive there from the turnpike he would have to travel northbound from the point where he was parked. It was also shown that the defendant's car had its parking lights on, that when the trooper opened the door of the same the engine was running, and that the radio of the car was playing.
From these undisputed facts the inference is inescapable that the defendant operated the motor vehicle he was found in on the grass portion of the shoulder of the north-bound lane of the New Jersey Turnpike. State v. Baumgartner , 21 N.J. Super. 348 (App. Div. 1952). State v. Witter , 33 N.J. Super. 1 (App. Div. 1954).
Whether the State established the defendant's insobriety beyond a reasonable doubt must be gleaned from the evidence.
In the State's proof we have the testimony of both troopers stating, without equivocation, it was their opinion that the defendant was under the influence of alcoholic liquor and unfit to operate a motor vehicle. Whether a man is sober or intoxicated is a matter of common observation, not requiring any special knowledge or skill, and is habitually and properly inquired into of witnesses who have occasion to see him and whose means of judging correctly must be submitted to the trier of the facts. Castner v. Sliker , 33 N.J.L. 95 (Sup. Ct. 1868). In State v. Pichadou , 34 N.J. Super. 177 (App. Div. 1955), the court reaffirmed the
rule that the average person of ordinary intelligence, although lacking special skill, knowledge and experience, but who has had an opportunity for observation, may testify whether a certain person was intoxicated; that in a prosecution for driving an automobile while under the influence of intoxicating liquor, the intoxicated ...