Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
[56 NJSuper Page 4] The State appeals from a County Court judgment reversing defendant's conviction in the municipal court for violation of N.J.S.A. 39:4-50 (operation of a motor vehicle while under the influence of intoxicating liquor), and entering a judgment of acquittal. The ground of reversal was that the complaint did not contain
"any written statement of the essential facts constituting the offense alleged."
Defendant was stopped by a state trooper while driving on the Garden State Parkway in Lacey Township on May 10, 1958, and taken to the Bass River State Police Barracks where a drunkometer test was performed. The test showed a concentration of .21% blood alcohol. A complaint and summons were then issued in the form required by R.R. 8:10-1(a) (the uniform traffic ticket). After filling in defendant's name and address, the time and place of the offense, and the other pertinent information called for on the form, the state trooper wrote "39:4-50 R.S." immediately following the words "and did then and there commit the following offense(s)." Further down on the form, and following the printed words "Other Violations (describe in words)," he wrote ".21% of blood alcohol." We note, in passing, that N.J.S.A. 39:4-50.1 provides that if at the time of the test there was .15% or more of alcohol in defendant's blood, it is presumed that he was under the influence of intoxicating liquor.
The complaint fixed May 21, 1958 for municipal court appearance. At the request of defendant's then attorney the hearing date was successively adjourned to June 5, June 10 and June 26, 1958. Defendant then retained his present counsel, who obtained a further adjournment to July 3, 1958, on which date a hearing was held and defendant convicted.
It appears that after defendant's former attorney had asked for and obtained the June 26 adjournment, he pointed out to the magistrate in the course of a discussion that the complaint did not state an offense which defendant could be called upon to answer. The magistrate allegedly replied that if there was any deficiency he could correct it. (R.R. 8:12-3 gives a municipal magistrate the power to "amend any process or pleading for any omission or defect therein * * *," and if a defendant is "surprised" by such amendment, the magistrate shall adjourn the hearing to some
future day, upon such terms as he thinks proper.) However, there was no disposition made of the matter.
We have no transcript of what took place before the municipal magistrate on the occasion mentioned. The Attorney General's description of the foregoing colloquy appears in the memorandum of law he submitted to the County Court and supplied to us. Defendant does not deny it took place, as represented. We mention the matter merely to indicate that defendant knew of the alleged deficiency and what the charge against him was.
Defendant was represented by his present attorney at the July 3 hearing before the municipal magistrate. The State proceeded with its case and presented testimony to establish that defendant had operated his automobile on the Garden State Parkway while under the influence of intoxicating liquor. There was cross-examination by defense counsel. Defendant did not take the stand and was found guilty as charged. At no time during the hearing did the defense move to dismiss the complaint because of any claimed deficiency.
Defendant at once appealed his conviction to the County Court. The notice of appeal recites that defendant "was convicted of operating an automobile while under the influence of intoxicating liquor under N.J.S.A. 39:4-50 * * *." This was pursuant to the requirement of R.R. 3:10-3, made applicable by R.R. 8:11-1, that the notice of appeal include "a general statement of the nature of the offense."
On September 12, 1958, the date fixed for the hearing in the County Court, but before the trial de novo on the merits began, defendant without notice moved for dismissal, for the reason that the complaint nowhere alleged that defendant operated a motor vehicle while under the influence of alcohol, or charged him with "drunken driving" or any similar offense. The record indicates that defendant came prepared to defend against the charge on the merits in case the complaint was not dismissed. He had one expert witness
in court and another on call, apparently for the purpose of rebutting the State's proofs, either as to the sufficiency and accuracy of the drunkometer test or the apparent symptoms of defendant's drunkenness, or both.
In the course of the argument on the motion it developed that the municipal magistrate had failed to forward the complaint to the County Court, as required by R.R. 3:10-4. The judge insisted upon seeing the original complaint, and reserved decision on the motion to dismiss. However, since both sides were anxious to get on with the case, he invited the defense to put its witnesses on out of order -- an offer which defense counsel rejected because he wanted to use his witnesses in rebuttal. Accordingly, the county judge held the motion and stated that he would hear the case on any Friday agreeable to the attorneys.
In opposing defendant's motion the State argued, as it does now, that the complaint was properly drawn. The deputy attorney general urged that the insertion in the complaint of "39:4-50 R.S." and ".21% of blood alcohol," described above, coupled with defendant's knowledge that he had been subjected to a drunkometer test, as well as his retention of counsel and what had transpired in the municipal court before and at the hearing, fully and definitely informed defendant of the offense with which he was charged. In the alternative, the State argues that even if the complaint was defective, the County Court should have afforded an opportunity to amend, instead of dismissing. At the oral argument before us the Attorney General contended that the County Court, in the light of the argument made before it (to which we will refer shortly), could and should have amended the complaint on its own motion. We are asked to remand the case to the County Court for trial on the merits, ...