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State v. Wetmore

Decided: October 12, 1972.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FLORENCE M. WETMORE, DEFENDANT-APPELLANT



Yaccarino, J.c.c.

Yaccarino

Defendant appeals from a conviction in the municipal court for permitting an intoxicated person to operate her motor vehicle in violation of N.J.S.A. 39:4-50(a). The appeal was heard de novo on the record. The facts may be summarized as follows:

On the day in question defendant had met John Thomas. They were accompanied by a mutual friend named Clare Lewis. The trio drove from Monmouth County to Perth Amboy where they picked up the children of Clare Lewis. They then returned to Monmouth County and stopped at the Pine Tree Tavern for a short time. They subsequently proceeded to the Wild West Tavern and remained there approximately 45 minutes. Upon departing from the Wild West Tavern Thomas operated defendant's vehicle on Route 9 in Howell Township. At this time the vehicle struck a vehicle

operated by Mrs. Jean Treat. Trooper Langen was dispatched to the scene to investigate. Upon arriving at the scene Trooper Langen placed Thomas under arrest for drunken driving.

Trooper Joseph Lucas conducted a breathalyzer test on Thomas indicating readings of .18 and .17, respectively. There was no testimony by the trooper as to the physical appearance or condition of Thomas. Mrs. Treat testified that she was injured as a result of the accident and offered no testimony as to the condition of the operator, Thomas. Thomas testified that he had been drinking all through the day. Defendant testified that she had been with the operator and their friend, Clare Lewis, earlier in the day; that they went to Perth Amboy and picked up Clare Lewis's children, and returned to Monmouth County; that on the trip up to Perth Amboy Thomas operated her vehicle; that they returned to Monmouth County and went to the Pine Tree Tavern where they stayed for a very short time; that they left the Pine Tree Tavern and went to the Wild West Tavern, located on Route 9 in Howell Township. She was unable to testify as to what Thomas had had to drink but that he appeared to be fine and did not appear to be intoxicated. Their mutual friend, Clare Lewis, said she joined Mrs. Wetmore at approximately 3 P.M. that day when they picked her up at her house; that the accident happened at about 6 P.M.; that all during that three-hour time prior to the accident she observed nothing wrong with Thomas, and offered that had it been her vehicle she would have permitted him to drive it. She testified that had she sensed anything wrong with the operator's condition she would not have permitted her children to ride in the car.

There was no testimony from any witness that Thomas appeared to be either intoxicated or under the influence of alcoholic beverages. The testimony as to his condition offered by the State consisted of the two breathalyzer readings

and any inference that could be drawn from the trooper's statement that when he arrived at the scene he arrested Thomas for drunken driving.

Defendant contends that the results of the operator's breathalyzer test are inadmissible against her and further contends that the State must show that she knew or should have known of the operator's condition at the time she permitted him to operate her vehicle.

The State contends that the operator's breathalyzer readings and his condition are binding upon the owner and that the statute does not require it to prove that defendant knew or should have known of operator's condition.

The court will first consider the issue of knowledge.

Where an offense, as in this case, is malum prohibitum the Legislature may render an act criminal without the requirement of guilty knowledge or criminal intent. Morss v. Forbes , 24 N.J. 341 (1957); State v. DeMeo , 20 N.J. 1 (1955), and State v. Kinsley , 103 N.J. ...


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