Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant was convicted in the Municipal court, and upon trial de novo in the County Court, of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. Now he appeals to this court, upon the grounds that (1) the result of a Drunkometer test was improperly received in evidence and used by the County Court as a basis for its decision, and (2) without that testimony the evidence was not sufficient to prove defendant guilty.
The State says, in its answering brief, that "the opinion of the court below clearly establishes that the basis of its
finding of guilty rested upon 'very heavy testimony of the people who observed' defendant rather than the Drunkometer finding and its presumption." If the trial court had plainly said that the evidence other than the Drunkometer testimony established defendant's guilt, and we agreed, we would not reach the question of the reception of the Drunkometer testimony.
However, we cannot say with assurance, after reviewing the testimony and the opinion of the County Court, that the Drunkometer evidence did not influence its conclusion of guilt. For example, the doctor who examined defendant at the request of the police, after stating that he came to police headquarters "to examine him, to see if he were fit to drive an automobile," testified that "his eyes were not remarkably significant," though "the pupils were somewhat sluggish"; his reflexes were "not abnormal," and he could repeat "the words I asked him * * * pretty well" though "he was unable to walk a straight line without holding on to the wall"; and that "I concluded he had been drinking," (which defendant never denied) but "I didn't come to any definite conclusion as to whether he was fit or unfit to drive an automobile." Of course, the test is not fitness or unfitness to drive an automobile, but rather whether the defendant "has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." State v. Emery , 27 N.J. 348, 355 (1958). The prosecutor did not ask the doctor, nor did the doctor say, whether the defendant was under the influence of intoxicating liquor, either in the terms of State v. Emery or otherwise. On cross-examination the doctor testified:
"Q. * * * And you have no opinion as to whether or not he was under the influence of liquor or beer? A. Well, he was drinking. I have no opinion as to whether he was fit or unfit to drive, no."
Even in a trial without jury, "a defendant should not be required to contend with inadmissible evidence,
where it appears that it may have a prejudicial effect," State v. Hintenberger , 41 N.J. Super. 597, 604 (App. Div. 1956); and a new trial must be granted where "it is pure speculation as to whether the court in reaching its determination" disregarded it, State v. Dietz , 5 N.J. Super. 222 (App. Div. 1949). Cf. State v. Hulsizer , 42 N.J. Super. 224, 229 (App. Div. 1956). We must therefore deal with the Drunkometer testimony.
Joseph Wolkamir testified that he was a state trooper "stationed at the Pompton Lakes station," and that he was "also a Drunkometer operator." Then (after several pages of testimony which had nothing to do with the Drunkometer except his statement that defendant had refused to take the Drunkometer test until his own doctor arrived), he testified as follows:
"Q. Now, Officer, subsequent to this time, when you completed the oral and physical examination, did you give this defendant a Drunkometer test? A. I did, sir.
Q. And at what time did that test take place? A. At -- I was preparing to leave, when the defendant ...