Kilkenny, Carton and Matthews. The opinion of the court was delivered by Kilkenny, J.A.D.
William Coan appeals from an order of the Director of the Division of Motor Vehicles revoking his automobile driving privileges for six months because of his refusal to submit to the breath alcohol determination test provided for in N.J.S.A. 39:4-50.2.
Coan's primary contention is that he was not placed under arrest until after his refusal to submit to the test, whereas N.J.S.A. 39:4-50.4 makes the six months' revocation sanction applicable only if the motorist is first arrested and then refuses to submit to the test.
There is substantial evidence in the record to support the Director's finding that Coan refused to submit to the breath test after he had been arrested. Officer Bellow of the Princeton Borough police department testified that on October 18, 1966, at about 2:20 A.M., he observed Coan's automobile being driven erratically. The officer stopped it on Williams Street in Princeton and requested Coan's driver's license and auto registration certificate. The latter had great difficulty in getting them out of his wallet and gave the appearance of being intoxicated. When getting out of his car he fell against the police officer and had to be supported by him. There was a strong odor of alcohol on his breath. His speech was slurred and rambling.
Officer Bellow testified that Coan was then arrested and taken to the borough hall, where he was advised of his rights under the law. When Coan was then requested to submit to the breath test, he refused to do so. The police report confirms that the arrest was at 2:20 A.M. and refusal to take the test was at 2:35 A.M. Upon that refusal a summons was issued charging defendant with drunken driving, in violation of R.S. 39:4-50. Report of the refusal was made by
the police to the Division of Motor Vehicles, with the resultant notification of revocation and administrative hearing.
It is clear from the foregoing that Coan had been placed under arrest when he was taken into custody by the police officer and brought to the borough hall. Coan did not testify at the hearing. As we said in State v. Harbatuk, 95 N.J. Super. 54 (App. Div. 1967):
"From that moment on defendant's movements were restricted and he was being held in custody for the purpose of 'securing the administration of the law.' Restatement, Torts 2 d, § 112, p. 190 (1965). The fact that defendant did not protest but agreed to go along did not alter his status as a person in custody." (at p. 60)
Officers are not required to make any formal declaration of arrest or apply manual force in order to "arrest" a person. An arrest may be accomplished by any act that indicates an intention to take the person into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2 d 304, 311 (Sup. Ct. 1963), certiorari denied 375 U.S. 910, 84 S. Ct. 204, 11 L. Ed. 149 (1963).
When Officer Bellow advised Coan that he was unfit to operate his automobile and must accompany him to the borough hall, Coan was then under arrest, although the formal charge of drunken driving was not made until later. Coan offered no testimony contradictory of the police officer's testimony. His refusal to submit to the breath test after that arrest subjected him to the statutory sanction.
Coan's second ground for reversal is that his arrest was "unlawful" since there was no warrant and the arrest allegedly did not comply with the provisions of N.J.S.A. 39:5-25.
Coan concedes that under N.J.S.A. 39:5-25 a police officer may arrest without a warrant any person "violating in his presence" any provision of chapter four of Title 39, "Motor Vehicle and Traffic Regulations," including R.S. ...