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State v. Gillespie

Decided: January 12, 1968.


Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.


Defendant appeals from a conviction of driving a motor vehicle under the influence of intoxicating liquor (N.J.S.A. 39:4-50) in the Passaic County Court following an appeal to that court on the transcript made before the Municipal Court where there had been an initial conviction. The defendant was fined $200 plus $25 costs and his driver's license was revoked for two years. Under the statute, a first-time offender is subject to a fine of between $200 and $500 or imprisonment for a term of between 30 days and three months, or both, in the discretion of the judge, and to a mandatory revocation of his driver's license for two years. Subsequent offenses are punishable by a mandatory three months jail sentence and ten years' revocation.

A number of questions, constitutional and otherwise, were raised in the county court and here. It should be noted at the outset that the formal charge against defendant fixes the place of alleged violation at "Parking Lot, 140 Hepburn Rd. [Clifton]."


At the time in question, May 8, 1966, the defendant resided in an apartment house at 140 Hepburn Rd., Clifton. Supplemental testimony taken before the county court on a remand at our direction establishes that the owner and operator

of the apartment house also maintained a parking garage with two indoor levels and a roof parking area. As of May 8, 1966 the indoor levels were open only to tenants, but the rooftop, where this offense allegedly occurred, was open not only to tenants, but visitors, tradesmen and anyone else having occasion to be at the property. Even persons having no business there were not impeded from parking on the rooftop prior to July 1, 1966 when a gate was installed excluding those with no business at the premises.

On the basis of the foregoing proofs the county court found the rooftop garage area to be as of May 8, 1966 a " quasi -public" place and within the purpose and object of the statute as to places where driving under the influence is intended to be proscribed.

In State v. Sisti, 62 N.J. Super. 84 (App. Div. 1960) we held the act was not designed to limit the field of its prohibition to public highways and included the general parking area made available for customers of a private business concern -- a shopping center. Defendant argues that the factual situations there and here are not analogous. We do not agree. Except in terms of the number of vehicles potentially involved, we do not regard this case as distinguishable in principle from Sisti. The operation of a motor vehicle while under the influence of intoxicating liquor in a quasi -public place involves extraordinary danger of injury to the driver or other members of the public or damage to their property, just as does driving in that condition on a public highway.


Defendant's major contention is that he was convicted illegally because of the introduction before both trial courts against him of admissions in police custody to, and as a result of interrogation by, a police officer and an examining police physician without the prerequisite warnings and waiver of rights required by Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (1966).

Defendant did not testify in his own defense. The pertinent proofs are as follows.

At approximately 7:30 P.M. on the evening of May 8, 1966 Mr. Koubek, a tenant at the apartment house, noticed from his patio a car having difficulty getting into a parking place on the parking roof. A grey Buick sedan was attempting to park immediately adjacent to his own car. As he continued his observation, from a distance of 150 feet, he saw and heard his car bumped by the Buick, whereupon he started downstairs, calling the superintendent to come out with him. When he got to the parking area Koubek saw defendant looking at the damage to Koubek's car. At this point defendant was either entirely out of the Buick or was just getting out. In the course of their conversation defendant acknowledged to Koubek that the Buick belonged to him and said: "Look at the damage to my car and I don't know how I got any of them."

Clifton Police Officer Sembertovich testified he was detailed to the scene of "an accident" at 7:40 P.M. that day and went to the premises. He saw defendant leaning against the Buick. Koubek told him defendant had struck his car and defendant denied it. The officer concluded that defendant's car had struck Koubek's by examining the location of damage and paint scrapes on the vehicles. Somewhere in the course of his investigation the officer conducted an interrogation of defendant and arrested him for drunken driving, but the transcript unfortunately makes it impossible to determine just how much of the interrogation preceded the arrest. The significant testimony of the officer is as follows:

"Q. What then occurred [after inspecting the damage]? A. I then asked Mr. Gillespie what had occurred. He said he didn't know. I asked him for his driver's license and registration. He was fumbling with his wallet and could not produce them. Then I asked Mr. Koubek what happened. His statement is on the report, your Honor. I asked Mr. Gillespie to walk a line that was in the road. He could not do so. He staggered and stumbled from side to side. He had to lean against the cars, and he needed support. I then told Mr.

Gillespie I am placing him under arrest while driving under the influence of alcohol, due to Mr. Koubek's statement.

Q. Officer, did you ask Mr. Gillespie if he had been driving? A. Yes, I did. He said he had been driving. He said he drove from New York. He thought he was still in New York.

Q. Would you describe the defendant's appearance at the scene of this accident? A. Well, his eyes were bloodshot and he had a very strong odor of alcohol on his breath. As I stated, he was staggering and could not support himself without aid ...

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