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State v. Burger

Decided: May 10, 1962.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY A. BURGER, DEFENDANT-APPELLANT



Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

[74 NJSuper Page 210] Defendant Henry A. Burger appeals from a judgment of the Mercer County Court sustaining a conviction for operating a motor vehicle while under the influence of intoxicating liquor and the imposition upon him, as a second offender, of a mandatory sentence of imprisonment for a term of three months and the forfeiture of his right to operate a motor vehicle over the highways of this State for a period of ten years. He maintains that (1) the proofs were not free of a reasonable doubt of guilt, (2) the court erred in admitting into evidence the results of a Breathalyzer examination, (3) he did not consent in writing to a chemical test, and (4) his prior conviction for a similar offense was not established by "the best evidence beyond a reasonable

doubt." The State's proofs included the testimony of Police Sergeant Michael G. Lisi, Patrolman Howard Sweeney and Police Surgeon Dr. Mark H. Lund.

Lisi testified that on May 14, 1960, at about 10 P.M., he was riding in a patrol car driven by Sweeney, which was proceeding in a westerly direction on Nassau Road nearing the intersection of Scott Lane, in the Township of Princeton, when he observed the defendant operating an automobile "coming in an easterly direction and veer sharply into the path of the police car on our side of the road." The patrol vehicle pulled over to the extreme right, backed up, turned around and then followed the Burger car until it "came to a halt in a driveway of a residence on the Princeton-Kingston Road," approximately a mile from where it had been first observed. While in pursuit, Lisi observed that defendant's automobile "kept veering sharply to the right and to the left. At times it was completely over the white line on the left side of the road." He stated that they were unable to stop Burger because of his "erratic driving" and the traffic in both directions at that hour of the night. The police pulled in behind the parked Burger car, walked to the driver's side of that vehicle, and found Burger lying on the front seat; the headlights of his car had been turned off, but the motor was still operating. Lisi "shut off the motor." Defendant was asked to step out of the car, and as he did so "staggered backwards and fell against the car"; he readily admitted that he had been drinking. The sergeant detected "a strong smell of alcohol." Lisi suggested that Burger voluntarily submit to a "Breathalyzer test," which at first he declined to do, but he subsequently gave consent. He was then taken to the Princeton Hospital and Dr. Lund was summoned. The doctor arrived approximately a half-hour after the call. Defendant, during this interim period, was in the custody of Lisi who testified that Burger's face was flushed -- "His eyes looked liked they were pretty badly bloodshot and half closed" -- and described his speech as "mumbling language * * * you couldn't understand

what he was saying, he talked continuously." Lisi was unequivocal in his opinion that Burger was intoxicated and was not fit to operate a motor vehicle. The testimony of Patrolman Sweeney substantiated that given by the sergeant.

The police surgeon gave evidence respecting his clinical observations, the physical experiments and the test with the Breathalyzer equipment. The doctor testified that defendant told him "he had been drinking beer that afternoon * * *. Three or four, he said." The defendant's physical condition was explained -- his face was "slightly flushed"; eyes were "slightly bloodshot"; "he had an alcoholic breath, faint, * * * but certainly it was apparent"; speech was "rational but he did ramble, he kept talking along"; "swayed noticably [ sic ]"; there was a "fair execution" of the "finger and nose" dexterity test; his clothing was "fairly neat" and he was polite. When interrogated as to whether he had formed a conclusion as to Burger's sobriety based upon his observations and physical tests, he opined: "Well, I thought in view of the fact that he had swayed quite a bit while he walked and was rambling on, that he was under the influence of alcohol to the extent that it would be unwise for him to operate a motor vehicle car." Subsequent testimony concerning the Breathalyzer test was offered and received by the court; it included the result-readings, which indicated ".22 blood alcohol."

Defendant took the witness stand on his own behalf and admitted that he had been drinking beer on the afternoon of the day of his apprehension, testifying: "I'd say average of maybe one every half hour, three-quarters of an hour. * * * most part of the afternoon." His admission under cross-examination is pertinent:

"Q. The doctor asked you how many you had been drinking too, didn't he?

A. He did.

Q. That's when you told him you had three or four?

A. Offhand I said three or four.


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