For reversal -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Hall, J.
This appeal derives from defendant's conviction in the Livingston Municipal Court for operating a motor vehicle "while under the influence of intoxicating liquor" in violation of N.J.S.A. 39:4-50, which provides in pertinent part as follows:
"A person who operates a motor vehicle while under the influence of intoxicating liquor * * * shall be subject, for a first offense, to a fine of not less than two hundred nor more than five hundred dollars ($500.00), or imprisonment for a term of not less than thirty days nor more than three months, or both, in the discretion of the magistrate, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of two years from the date of his conviction. For a subsequent violation, he shall be imprisoned for a term of three months and shall forfeit his right to operate a motor vehicle over the highways of this State for a period of ten years from the date of his conviction * * *."
She was again found guilty on review by the Essex County Court, which heard the case de novo upon the stenographic transcript of the municipal court trial. N.J.S. 2A:3-6; R.R. 3:10-1, 3:10-2 and 3:10-10. Both courts imposed the same sentence -- imprisonment for three months, plus revocation of driver's license for a period of 10 years -- which they conceived to be mandatory under the quoted section, since defendant had been convicted of the same offense some three or four years previously. The Appellate Division reversed the conviction on her further appeal. We granted the State's petition for certification. 39 N.J. 240 (1963).
The case is particularly important on the matter of the effect of N.J.S.A. 39:4-50.1 authorizing the chemical analysis of bodily substances to determine the amount of alcohol in a motor vehicle operator's blood and setting forth the efficacy of the results of such tests in relation to the offense. Although enacted in 1951, L. 1951, c. 23, § 30, this is the first occasion for consideration of it by this court. It reads:
"In any prosecution for a violation of section 39:4-50 of Title 39 of the Revised Statutes relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's
blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
1. If there was at that time 0.05 per centum or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
2. If there was at that time in excess of 0.05 per centum but less than 0.15 per centum by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant;
3. If there was at that time 0.15 per centum or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
The foregoing provisions of this section shall not be construed as requiring that evidence of the amount of alcohol in the defendant's blood must be presented, nor shall they be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant."
The evidence presented by the prosecution fell into three categories: lay testimony of police officers, medical opinion by an examining physician, and a reading of 0.18 per centum by weight of alcohol in the blood as shown by chemical analysis of the breath through use of the Harger drunkometer utilizing the volumetric method. The defense sought to establish, principally by expert testimony, that the factual bases for the lay and medical opinions introduced by the State were insufficient to support the conclusion of operation while under the influence of intoxicants. It further urged that the drunkometer is inherently inaccurate in measurement of the percentage of alcohol in the blood and that, in any event, this test was improperly conducted. A particular thrust of the defense proofs was that such deviations from normal in defendant's physical condition as existed were to be attributed to hypertension and hyperthyroidism, for which she was under treatment, rather than to the effect of liquor.
The automobile defendant was driving was stopped by the police about 5:15 P.M. on an August day. The proof as to
any erratic driving was sparse, since the car had proceeded only about 500 feet from where it had been parked. The police had received information to the effect that a person who appeared to be intoxicated was operating a motor vehicle in the area. The officers at the scene observed the vehicle, a small foreign-make car, pull away from the curb and travel at a very slow rate of speed so as to cause other traffic to slow almost to a stop. The driver appeared to be having trouble shifting gears -- the clutch operated electrically and the shift was manual -- with resultant grinding noises. (The defense presented testimony of prior difficulty in shifting and necessary clutch repairs, which were said to be inherent in the model.)
One of the policemen whistled defendant to the side of the road and asked for her license, which was produced after some fumbling. Her face was slightly flushed and her eyes bloodshot. An odor of alcohol was detected, but she insisted, as she did several other times to the officers thereafter, that she had not had a thing to drink. She was then asked to get out of the car, which she did with considerable difficulty. When requested to walk in front of the car, she staggered, swayed and was not able to walk normally. She agreed to take a drunkometer test and was taken to headquarters in a police car. While not belligerent during the trip, she kept repeating that she had to get home to feed her husband, that the police were picking on her, and that she had harmed no one. Upon arrival, she was unable to walk up the steps by herself and had to be assisted. By this time, she was crying and obviously nervous and very excited. As she testified: "I was * * * afraid * * * I'd lose my license and I can't get around home without one except by cab."
The drunkometer test was administered promptly, to which defendant gave oral consent, producing the 0.18 per centum reading previously mentioned. According to the operator, she had considerable difficulty blowing air into the balloon associated with the apparatus.
The examination by the police physician followed. This was had in the presence of two of the apprehending patrolmen and began about an hour and a half after that event. The doctor found her neatly dressed, oriented and with normal speech and face color. She was crying and under some tension, but cooperative rather than argumentative. Apparently there was no evidence of euphoria. There was a strong odor of alcohol on her breath, her eyes were slightly bloodshot, and pulse rate rapid and blood pressure abnormally high. She stated that she had had only one drink that day -- in the morning -- but was confused as to the hour. She advised the doctor of being under medical care and medication for a thyroid condition and stated she felt "fine." He then had her perform the conventional neurological tests for balance and coordination. About half were performed successfully. The others, particularly involving balance, resulted in marked abnormality with wide degrees of swaying to the extent that she had to be supported. Based on his examination, the doctor concluded that Mrs. Johnson had consumed sufficient alcohol to affect her faculties and "was sufficiently under the influence of liquor to be a non-safe driver on the road." He stated that, in reaching this opinion, he had made lenient allowance for the effect of a hyperthyroid and hypertensive condition. The two police officers who participated in the arrest and observed the medical examination also testified that, in their opinion, without regard to the drunkometer reading, defendant was under the influence of intoxicating liquor.
The defense revolved primarily around three expert witnesses. The defendant herself first testified, in course of which she admitted to having imbibed to the extent of two two-ounce jiggers of rum, with water, during the afternoon. The first drink was about 3:30 P.M. and the second approximately an hour later, shortly after which she left her home in Short Hills to go to Livingston to purchase a bottle of liquor. It was after the purchase had been made and she was starting the return trip that the police apprehended her at, as has been
said, about 5:15 P.M. In view of her denials to the police of any drinking and the statement to the examining doctor that she had had only one drink, and that in the morning, the trier of the facts could well doubt the complete truthfulness of her testimony.
The first expert was a physician, not previously acquainted with the defendant, who examined her at police headquarters at her husband's request some three hours after she was taken into custody and again five days later when she was free of all alcohol. His findings of the first examination did not differ substantially from those of the police physician. While there was improvement in several aspects on the second, he was unable to tell whether she was under the influence of alcohol on the first occasion because he could not determine whether the abnormal findings were due to the intake of alcohol or the effects of extreme tension.
The second expert witness was the defendant's personal physician who had treated her for some time for hypertension and hyperthyroidism. The symptoms of the latter he described as great nervous tension, tremors and palpitations, elevated blood pressure and ataxia resulting in lack of coordination of the hands and legs. During his treatment he had noticed the defendant's inability to walk, stand and perform the various neurological tests with complete control. It was his opinion that alarm or anxiety reaction can, within a minute, aggravate the condition and symptoms and would adversely affect her ability to perform the tests administered by the police physician and could account for all the latter's findings except the breath odor of alcohol. He was unable to say, however, what effect four ounces of alcohol would have on Mrs. Johnson's condition and, of course, since he was not present, could give no opinion as to whether she was under the influence on the day in question.
The final defense witness was Dr. Charles J. Umberger, a toxicologist, who had made studies on the physiological action of alcohol, but had never examined the defendant. In his view, which differs from that of most other authorities, the
breath test to determine the amount of alcohol in the blood, while not completely valueless, is not a sufficiently accurate or precise measurement, since its basis is that of the statistically average, normal individual. He felt this was particularly so in this case because the defendant had a thyroid condition. He did not indicate, however, physiologically why, in what direction or to what extent the reading would be inaccurate. It was also his opinion that the results of neurological tests here were inconclusive because defendant did not fail them all and by reason of the fact that, while muscular coordination was affected, he saw no evidence of effect on the central nervous system, as by slurred speech, euphoria and argumentativeness, which should be hit first and hardest by alcohol. Testifying hypothetically, he could not say whether Mrs. Johnson was or was not under the influence of alcohol without further medical testing and evaluation.
The magistrate, in a written opinion, held the result of the drunkometer test properly admissible since the proofs established that the machine and its components were in order, the operator was qualified and the test properly administered and that the State was entitled to the statutory presumption arising from the reading. He found the testimony of the police officers and the police physician convincing "of the inebriated condition of defendant and the resulting deleterious effect, to a great extent on her physical coordination and to a lesser extent of her mental faculties." Although "cognizant" of the defense evidence, he obviously found it unpersuasive for he said most of it "appears to be based upon conjecture, theory and inference and not upon observation and tests made within a short time of defendant's apprehension." This evaluation must be considered to extend to the evidence critical of the drunkometer and the accuracy of the reading in this case. Nonetheless, he stated that he did not find the reading sufficient, standing alone, to prove guilt beyond a reasonable doubt. (This is, of course, the requisite standard in a so-called quasi -criminal proceeding. State v. Emery, 27 N.J. 348, 353 (1958).) This statement was not
explained, i.e., whether it was intended as a general proposition or only in the light of the evidence in this case. He spoke of the finding as confirming the opinions of the police officers and the physician and found guilt meeting the required standard from the testimony of the policemen and the State's doctor coupled with the drunkometer reading.
The County Court, on its de novo consideration of the record, reached the same conclusion perhaps on a different approach. (Its function is to determine the case completely anew on the record made in the Municipal Court, giving due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses. State v. Ronnie, 41 N.J. Super. 339, 343 (Cty. Ct. 1956); cf. Donofrio v. Haag Brothers, Inc., 10 N.J. Super. 258, 262 (App. Div. 1950); State v. Ingram, 67 N.J. Super. 21, 33-35 (Cty. Ct. 1961).) Its fact findings were contained in a single sentence: "In addition to the testimony concerning the drunkometer test, there was sufficient evidence from other sources to sustain the conviction, including that of Dr. Weber [the police physician] who examined the defendant shortly after the arrest." Although not entirely clear, it must be assumed the judge ...