Defendant was convicted in the Municipal Court of the City of Clifton of operating a motor vehicle while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50. He has appealed to this court, which appeal has been heard de novo on the record. The hearing consisted solely of oral argument. R.R. 3:10-10(a).
The legal questions raised on this appeal are:
1. Were the arrest and detention of the defendant illegal by reason of being arrested without a warrant and the failure of the police officer to take him, without unnecessary delay, before the nearest available magistrate?
2. Was the offense committed within the territorial jurisdiction of the Municipal Court of the City of Clifton?
3. Should this court take into consideration, along with all other relevant evidence, the refusal of the defendant to submit to a drunkometer examination?
4. Did the court err in denying defendant's motion to dismiss the complaint at the end of the State's case because the State failed to sustain the burden of proving the defendant's guilt of the charge of operating a motor vehicle while under the influence of intoxicating liquor, beyond a reasonable doubt?
The defendant urges that he was never brought before a magistrate upon his arrest, and that there was a non-compliance with R.R. 8:3-3(a) which provides in effect that "a person making an arrest without a warrant shall
take the arrested person, without unnecessary delay, before the nearest available magistrate and a complaint shall be filed forthwith and a warrant issued thereon"; and that by reason of such non-compliance the court was deprived of jurisdiction; thus there could be no valid conviction.
The defendant was apprehended in Clifton and taken to the Bloomfield State Police Station for an examination to be conducted to determine alcoholic influence. Certain "physical" tests were performed upon the defendant, but he refused to submit to a drunkometer test. He was then taken by the troopers to Clifton Police Headquarters where he was to undergo a medical examination, but a doctor was not available. An unsuccessful attempt was made to have a doctor in Passaic examine the defendant. There was no objection to this procedure on the part of the defendant. Upon return to Clifton, a summons was issued to the defendant and bail posted. This procedure took approximately two to three hours.
Apparently much of the time involved was spent attempting to have the defendant examined. No contention is made by the defendant that he was abused in any way. The circumstances clearly indicate that the detention was otherwise reasonable.
Ahrens, supra , is dispositive of defendant's contention. In that case, the facts as to arrest and delay are almost identical to those now before this court. There, similarly the defendant's contention was that the municipal court was without jurisdiction to hear and determine the matter. The Ahrens case makes it clear that R.R. 8:3-3(a) has no applicability in the case at bar. At the expense of brevity, the pertinent part of the court's opinion in the Ahrens case is here quoted:
"Unquestionably, the municipal court has jurisdiction to hear matters concerning the violation of the motor vehicle and traffic laws occurring within the territorial jurisdiction of that court. N.J.S. 2A:8-21.
The practice and procedure in the municipal court is governed by the rules promulgated by the Supreme Court (Rule 8:1-1). Under these rules it is provided that '(a) In cases involving violations of statutes or ordinances relating to the operation or use of motor vehicles, hereinafter designated as "traffic offenses," the complaint and summons shall be in the form set out in Criminal Procedure Form No. 11, the "Uniform Traffic Ticket"' and it is further provided that 'The Complaint form shall be used in traffic cases, whether the complaint is made by a police or peace officer, or by any other person.' (Rule 8:10-1.) Rule 8:1-3, 'Definitions,' provides, inter alia
'"Offense" shall mean any violation of a statute or an ordinance within the jurisdiction of a court to which these rules apply, or with respect to which a magistrate is authorized by law to conduct a preliminary examination of the person accused of crime.'
'In the case of indictable offenses other than high misdemeanors and in instances of non-indictable offenses, if it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, if the defendant is a corporation a summons shall issue. If the defendant is an individual the magistrate may, in his discretion, issue either a summons or a warrant. * * *' (Emphasis ours)
Rule 8:3-2(b) provides that in matters other than indictable offenses a summons or warrant may issue in the discretion of the magistrate taking the complaint. Rule 8:3-3(a) and (b) provides that a warrant or summons shall be signed by the committing magistrate or tested in his name and signed by a person empowered by law to take complaints. * * *"
Continuing 25 N.J. Super. , at page 208:
"We conclude that it is the intent of the rules governing procedure in the municipal court, that the magistrate or one authorized to take complaints may issue either a summons or warrant to bring before the magistrate one charged with a violation of R.S. 39:4-50. Rule 8:3-2(b) and Rule 8:3-3(a) and (b) supra. * * *"
At page 209 of 25 N.J. Super.:
"The matter of the form of process is, in our opinion, a procedural and not a substantive one and is governed by the provisions
of Rule 8:10-1 et seq. , and supersedes the procedures set forth hereinabove under R.S. 39:5-25. Under the cases of Winberry v. Salisbury, supra , and In re Pfizer's Estate, supra , the procedure is clearly controlled by the rule-making power of the Supreme Court.
Under the circumstances prevailing here, the magistrate did not lose his jurisdiction to hear and determine the charges against the defendant."
See also City of Asbury Park v. Shure , 54 N.J. Super. 46, 52 (Cty. Ct. 1959) and cases therein cited, holding that a procedural infirmity which had in nowise deprived an accused of his opportunity to be heard on the merits of the sufficient charge presented, or prejudiced his ...