Price, Sullivan and Leonard. The opinion of the court was delivered by Sullivan, J.A.D.
Defendant appeals from a conviction of a charge of operating a motor vehicle while under the influence of intoxicating liquor contrary to N.J.S.A. 39:4-50.
Defendant was apprehended in the Borough of Caldwell by James Brown, Jr., a police officer of the borough, who observed defendant driving his station wagon in an erratic manner. The officer stopped defendant and, after questioning him, brought him to police headquarters. There it was ascertained that defendant had been arrested for drunken driving in the borough five days previously. At headquarters, defendant refused to submit to a drunkometer test. He also refused to be examined by Dr. Sanford, the physician who had been called by Sergeant Sullivan, the
desk officer on duty at police headquarters. Officer Frederickson was also in headquarters at the time. After Dr. Sanford left, defendant requested that Dr. Paul, a physician and a personal friend of defendant's, be called. This was done; Dr. Paul appeared at headquarters; posted $230 bail for defendant and drove defendant home.
The appeal turns on the competency of opinion evidence given by two of the police officers at the trial de novo in the County Court.
The record shows that Officer Brown, the arresting officer, after testifying to defendant's manner of driving and his conduct and appearance at the time of his arrest and thereafter, gave an opinion that defendant was under the influence of an alcoholic beverage and was unfit to operate a motor vehicle. On cross-examination he said that his opinion of defendant's condition was "affected" by defendant's refusal to be examined by Dr. Sanford.
Officer Frederickson who saw defendant at police headquarters also testified that in his opinion the defendant was under the influence of an alcoholic beverage and unfit to operate a vehicle. On cross-examination he stated that, in arriving at his opinion, he took into consideration the fact that defendant refused to be examined by Dr. Sanford.
Officer Sullivan, the desk officer at police headquarters, testified that in his opinion defendant was under the influence of an alcoholic beverage and unfit to drive a motor vehicle. On cross-examination he said that his opinion did not take into consideration the fact that defendant had refused to submit to a medical examination.
Dr. Sanford testified to seeing the defendant at police headquarters but that defendant had refused to be examined. On cross-examination Dr. Sanford said that defendant appeared to be composed, spoke in a coherent manner and was not boisterous. From his observation of defendant, Dr. Sanford was unable to formulate an opinion as to whether or not defendant was under the influence of liquor and unfit to drive a motor vehicle. The State concedes that
"there is no question but that defendant was coherent, composed, understanding and understandable."
Defendant testified in his own behalf and explained his manner of driving and his appearance ...