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David v. Strelecki

Decided: October 24, 1967.

JOSEPH M. DAVID, APPELLANT,
v.
JUNE STRELECKI, DIRECTOR OF MOTOR VEHICLES, RESPONDENT



Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Kilkenny, J.A.D. Carton, J.A.D. (dissenting).

Kilkenny

On February 24, 1967, the Director of the State Division of Motor Vehicles (hereinafter "Director"), following an administrative hearing, found that Joseph M. David drove his automobile on August 24, 1965 in Egg Harbor Township carelessly, in violation of R.S. 39:4-97, failed to drive upon the right half of the highway, in violation of R.S. 39:4-82, and operated the motor vehicle after consuming alcoholic beverages, which consumption of alcohol beverages affected his ability to operate the automobile properly and safely, and that these violations caused an accident to occur which resulted in the death of Charles Teti. The Director ordered David's driving privilege suspended for a period of two years.

David appeals from this final decision, pursuant to R.R. 4:88-8. We stayed suspension of his driving privilege pending determination of the appeal.

David contends that evidence suppressed by the County Court in a criminal proceeding stemming from this same accident should not have been admitted at the administrative hearing and could not properly form a basis for the Director's action, especially since such evidence was obtained in a custodial setting while he was under sedation. He also maintains that the findings of fact were not supported by adequate admissible evidence to warrant suspension of his driving privilege.

The happening of the accident itself, with its fatal consequences, and the physical aspects thereof, are not in dispute. On August 24, 1965, a clear, dry day, at about 2:20 A.M., David was driving his automobile in a westerly direction on Somers Point Road in Egg Harbor Township, Atlantic County. At a very sharp curve in the road, at a point where

the road passes over Powell Creek, the vehicle left the roadway, traveled 58 feet on the shoulder thereof as evidenced by tire marks on the shoulder only, struck and tore away a 20-foot section of guardrail, then traveled 162 feet further along the shoulder, overturned down an embankment, striking several trees as it turned over and down the embankment, and finally came to rest on its side. Charles Teti, a riding companion of David, was killed in the accident. The automobile was extensively damaged, the rear axle was broken and the left rear tire and wheel were never recovered.

There were no eye witnesses to the accident other than David as driver and his friend Teti, who had been riding on the passenger's side of the front seat. David climbed out of the car to go for help, went to a house about 300 yards up the street, and there either he or an occupant of the house called the police. The police arrived at about 2:45 A.M. At that time the rescue squad was removing Teti from the vehicle. Both he and David were taken by ambulance to Somers Point Hospital.

When Trooper Porter of the State Police, who investigated the accident, arrived at the hospital at about 5 A.M., after having made a partial investigation at the scene, he was informed by the nurse in the emergency room that Teti was dead. His lips were thus sealed by death. Prior to the police officer's arrival David, who had been suffering apparently greatly from shock as the result of the accident, had been given sedatives -- a pill and an injection. He was asleep when the trooper arrived. The nurse awakened him and the trooper began to question him forthwith, knowing then from the fact that Teti was dead and the information gathered by him at the scene that David faced a possible charge of manslaughter by automobile, N.J.S. 2A:113-9, as well as charges for violating the Motor Vehicle Act, and their serious consequences. The questioning was pursued by this police officer even though, as he frankly admitted, David was in a "groggy" condition, but "not drunk," and was under

sedation and "incoherent" in his responses, and without any advice or warning being given to David as to his rights to remain silent, to have counsel and the like. In fact, this same police officer swore to a complaint against David for manslaughter by automobile, N.J.S. 2A:113-9, on the following day. We shall discuss hereinafter the particular inculpatory admissions as to speeding and beer drinking allegedly made orally by David in the hospital emergency room to this trooper and the use of this evidence by the Director as a basis for her findings.

On the following day, August 25, 1965, at about 10:37 A.M., another police officer, Detective Heilfurth, picked up David at the hospital, brought him to State police headquarters at Mays Landing and there, while this shocked individual was still under sedation from a hospital-administered "needle and a pill," took a signed written statement from him. David again made incriminating admissions therein as to speeding and beer drinking. Here again, no specific warning or advice was given to him by this police officer as to his right to remain silent, or that the statement might be used against him. The statement, however, contains a recital that he was advised that the statement must be voluntary and he had a right to consult an attorney before giving the statement. He was apparently not advised that the State would furnish an attorney if he wanted one and was unable to engage his own. Thus some, but not all of the warnings specified in Miranda v. State of Arizona, 384 U.S. 436 (1966), were given. This statement, with its pertinent particulars hereinafter noted, was also used by the Director as another basis for her findings.

When David was thereafter indicted for a violation of N.J.S. 2A:113-9, his attorney moved in the Atlantic County Court before Judge Francis in August 1966 to suppress the oral statement given by David to Trooper Porter at the hospital and also to suppress the written statement of David taken by Detective Heilfurth on August 25, 1965 when David, as this officer expressed it, was "theoretically

under arrest," although not "formally" so in those "exact words." He was then in the custody of the police at headquarters whence he had been taken as aforesaid.

Judge Francis took the testimony of the police officers in connection with the motion to suppress and on the basis thereof granted the motion. He found that the warnings expressed in Miranda v. State of Arizona, supra, decided June 13, 1966 before the hearing of the motion, had not been given by either police officer, and that David was in a "custodial setting" when the statements were obtained, considering all of the attendant circumstances. Moreover, Judge Francis found that the evidence of sedation -- present when both statements were taken, albeit apparently more so in the case of the initial oral statement when David was admittedly incoherent -- precluded admissibility under the cases prior to Miranda.

The State did not seek leave to appeal the order suppressing the two statements to the police. Instead, in the face of an absence of adequate proof to establish the charge in the indictment, an order was entered on the State's own motion dismissing the indictment without any trial.

The Director went forward with the administrative hearing to suspend David's driving privilege, notwithstanding dismissal of the indictment. The Director had a right to do so notwithstanding a disposition of the criminal proceedings in the motorist's favor. Atkinson v. Parsekian, 37 N.J. 143, 151 (1962). Over the objection of David's attorney, Trooper Porter and Detective Heilfurth testified before the Division hearer as to what David had told them. Their testimony included the admissions of speeding and beer drinking allegedly made by David in the respective oral and written statements. It is abundantly clear from the Director's decision that she relied substantially upon this evidence, previously suppressed by order of the County Court, as well as upon the police testimony as to the physical aspects of the accident in her findings. For example, the Director uses as a basis for a finding of speeding that David

told Trooper Porter that "he was proceeding at a speed of 90 miles an hour or more before the accident occurred." Again, she relied heavily upon David's having told the police officers that he had consumed four or five beers some hours before the accident, in her finding that David's ability to drive his car safely had been impaired by his having consumed alcoholic beverages.

Generally, there is no necessity at administrative hearings to apply the rules of evidence strictly. Inadmissible evidence may creep into the record but its presence does not ipso facto mandate a reversal of the administrative determination, as might be the result in a judicial proceeding tried before a jury. However, administrative decisions must be based on admissible, competent and substantial evidence in the record. As a corollary thereto, if the administrative determination lacks legal support and is based upon inadmissible, incompetent or nonsubstantial evidence, it lacks validity.

Procedural due process of law is guaranteed to every person by the Fifth and Fourteenth Amendments to the United States Constitution. The Fifth insures against action by the Federal Government, and the Fourteenth against action by the State or its agencies. Procedural due process is not limited to criminal proceedings. It is equally applicable to civil proceedings, including administrative hearings. Weaver, Constitutional Law (1946), ยง 286, p. 420. A revocation or suspension of driving privileges is deemed to be civil in nature. But its result can be a deprivation of liberty and of the property rights in a license to drive an automobile. Bechler v. Parsekian, 36 N.J. 242, 257 (1961). As we stated in Parsekian v. Cresse, 75 N.J. Super. 405, 411 (App. Div. 1962):

"The fact remains that today the very livelihood of a man and his family may depend on his license."

David's need to have a driver's license to commute expeditiously to his place of employment as an ironworker was recognized by the Director in her decision.

While suppression by the County Court of the statements made by David to the two police officers in connection with a criminal proceeding is not automatically binding at the administrative hearing, the rationale which prompted the suppression ought not to be lightly disregarded. Judge Francis properly ruled that the evidence of David's having received sedatives and of his "incoherence" justified exclusion of statements made by him while in such a condition upon the basis of decisions long prior to Miranda. This was a recognition that procedural due process requires any hearing, judicial or quasi -judicial, to possess the element of fundamental fairness. For example, it would be fundamentally unfair and violative of procedural due process to try a man for drunken driving speedily while he is still drunk, even though defendant's then presence before the magistrate would leave no doubt as to his condition. See, too, Rochin v. People of California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1965), in which the incriminating evidence was literally pumped from the person's innards.

I

The testimony of Trooper Porter as to the results of his questioning David in the hospital emergency room should have been excluded at the administrative hearing as a matter of fundamental fairness. Its admission was violative of procedural due process. It was prejudicial and reversible error for the Director to have relied upon this testimony as a basis for her findings.

The Trooper admitted that he knew from talking with the nurse that David had been given sedatives by her in the hospital emergency room, was asleep when he arrived and was awakened by the nurse for questioning by him in the ...


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