Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[94 NJSuper Page 16] Pursuant to leave granted, the State appeals from a County Court order suppressing evidence of the results of a Breathalyzer test in a drunken driving case then pending in the Middletown Township Municipal Court. In entertaining defendant's motion to suppress, the county judge purported to exercise jurisdiction on the authority of R.R. 3:2A-6(a).
The Middletown Township police took defendant into custody after receiving a report from the Raritan Township police that they had noticed his car weaving back and forth on the highway and passing across the center line into the opposite lanes. Defendant was taken to the township police station for driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50, and there given a Breathalyzer test which showed a positive finding of alcohol. He was then formally charged with drunken driving.
Prior to a hearing before the municipal magistrate, defendant filed a motion in the County Court pursuant to R.R. 3:2A-6(a) to suppress the results of the test. The prosecution moved to dismiss, claiming that the County Court was without jurisdiction because no illegal search and seizure was involved. The county judge denied the motion and ordered that testimony be adduced, specifically with regard to the question of consent. The prosecution was not at the moment prepared to present witnesses; however, following a luncheon recess it elected to proceed with the only one of four possible witnesses it had available -- a police officer who had been present at the time the breathalyzer test was given.
Under the circumstances, the hearing proved to be a very brief one, and somewhat unsatisfactory. Defendant testified that he was stopped on the road and brought into police headquarters where he told the officer he had had a few beers -- about three small bottles. When shown the breathalyzer apparatus and asked if he had ever seen one like it before, his reply was that he had not and that he wanted his own doctor or any doctor to examine him because he had been taking insulin for a diabetic condition. The officer told him that if he had had only a few beers there was nothing to worry about, and to blow his breath into the breathalyzer. Although still asking for his doctor, defendant breathed into the machine.
The officer testified that the patrolman who gave the test advised defendant how the breathalyzer would operate and asked if he would give his consent. At first defendant said
the test was not necessary. Then he said, "I only had four or five beers. It [the test] won't hurt anyhow." The officer also testified that at one point defendant had asked for his doctor.
The trial judge concluded that defendant had not consented to the test, as required by L. 1951, c. 23, § 30 (N.J.S.A. 39:4-50.1), the statute applicable at the time of the arrest. That section has since been amended by L. 1966, c. 142, § 2 (N.J.S.A. 39:4-50.2), subsection (e) of which provides that no chemical test "may be made or taken forcibly and against physical resistance thereto by the defendant."
R.R. 3:2A-6(a), under which the county judge purported to act, provides that
"* * * a person claiming to be aggrieved by an unlawful search and seizure, and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding, may apply only to the Superior Court or County Court for the county in which the evidence was obtained for the return of property seized and to suppress the evidence obtained, even though the offense charged or to be charged may be within the jurisdiction of a municipal court. * * *" (Italics ours)
We were initially of the opinion that the County Court was without jurisdiction, but upon reconsideration of the matter have determined that such a conclusion was erroneous. Our error came about because we read the quoted rule in light of the definition section, R.R. 3:1-3, of Part III, "Rules Governing Criminal Practice in the Superior Courts and County Courts," which defines "offense" as "an indictable offense." Since a violation of N.J.S.A. 39:4-50, the drunken driving statute, is not an indictable offense, but one that may be heard by a municipal magistrate -- see N.J.S. 2A:8-21 -- we reasoned that the County Court did not have jurisdiction.
The definition of "offense" was included in the original rules adopted by the Supreme Court, effective September 15, 1948, as part of Rule 2:1-3. ...