For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal. The opinion of the court was delivered by Hall, J.
[57 NJ Page 4] The defendant was convicted in the Jackson Township Municipal Court of operating an automobile while under the influence of intoxicating liquor, a violation of the motor vehicle act. N.J.S.A. 39:4-50(a). The Ocean
County Court heard his appeal on the verbatim record made in the municipal court, R. 3:23-8(a) (formerly R.R. 3:10-10(a)), and also found him guilty. Since it proved to be his second offense within 10 years, he received the mandatory sentence of 3 months in the county jail and forfeiture of his right to operate a motor vehicle for a period of 10 years, as well as a fine of $500. The Appellate Division affirmed in an unreported opinion. He appeals to this court on the basis that a substantial constitutional question is involved. R. 2:2-1(a)(1). That question is the applicability of the rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to motor vehicle offenses, and particularly to drunken driving cases involving various physical tests.
The evidence for the prosecution showed that on the late afternoon of June 13, 1968, Jackson Township police headquarters received a telephone call that there had been an accident at a given location. Two policemen were separately dispatched to the scene. No sign of an accident was found, but an unoccupied car was observed at an angle off the road, partly in a ditch. The doors were locked. Officer Gross, the first to arrive, noticed a man, who proved to be the defendant, sitting on the porch of a nearby house. In response to the officer's question, he admitted he had been driving the car and identified himself. The officer observed that he had a very noticeable odor of alcohol on his breath, that he swayed as he was standing and while walking and that his speech was slurred. (Defendant had emigrated to this country some 10 years earlier and spoke with an accent). He admitted he had been drinking. His general demeanor was otherwise calm and cooperative.
Lieutenant Applegate arrived while Gross was talking to defendant, overheard most of the conversation and made the same observations as to his condition. Both officers testified that defendant was under the influence of alcohol.
Officer Gross then asked defendant to accompany him to headquarters. In view of what followed, the assumption is
that the trip was for the purpose of administering a drunkometer test. Lieutenant Applegate testified that Macuk was placed under arrest at the scene at that time. At headquarters Lieutenant Applegate, following a commonly used drinking-driving report sheet form prepared by the state police, asked the defendant further questions which fall into two categories. The first produced responses, largely repetitious of the answers given at the scene, that he was driving the car, that no one was with him, that he was going from a friend's house to his home in Freehold, that he ran off the road into a ditch, and that he had consumed two beers and a shot of whiskey at the friend's house earlier in the day. The second category related to whether he had injured himself, was ill, was taking any medication, had gone without sleep and the like -- designed to explore whether the physical symptoms displayed could be caused other than by the ingestion of alcohol and whether medical attention was required. All produced negative replies. Admittedly defendant was not advised prior to questioning at the scene or at headquarters of any right to remain silent, that any statement he might make could be used against him, or of any right to consult counsel prior to interrogation and to the appointment of counsel if indigent.
Officer Gross then read defendant the standard form of information and warning preparatory to administering the breath test. It reads as follows:
I have reason to believe that you have operated a motor vehicle in violation of Section 39:4-50 of the New Jersey Statutes and I have placed you under arrest for violation of this drinking-driving law.
I request that you submit to the taking of the samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
A record of the test will be made and a copy given to you when the test is completed.
In addition, you may have a person or physician of your own choosing take samples of your breath, blood or urine.
No test will be taken from you forcefully or against physical resistance.
If you refuse to submit to the test, a report will be forwarded to the Director of Motor Vehicles which may result in a loss of your driving privileges for a period of six months.
The officer testified that he asked defendant whether he would submit to the test and that the answer was in the affirmative. Admittedly again no Miranda warnings were given.
The drunkometer breath examination was administered by Lieutenant Applegate, who, it was established, was a competent operator of the device, which, it was likewise established, was in proper working order. The test produced a reading of 0.18% by weight of alcohol in the defendant's blood, which exceeds the figure of 0.15% specified by the statute, N.J.S.A. 39:4-50.1(3), as creating a presumption "that the defendant was under the influence of intoxicating liquor." Following the test a summons and complaint were issued.
Defendant's proofs need not be detailed (he was represented by counsel). It is sufficient to note that he admitted operating the car and having drunk "two shots" at his friend's house, that he claimed he became ill while driving and that he pulled to the side of the road in order to go to the nearby house to telephone his daughter to come and take him home. He also said that he did not want to "blow the balloon" in the drunkometer, but that the Lieutenant said he must. He did not testify that he did not understand the officers' ...