Halpern, Matthews and Bischoff.
Defendant was convicted in municipal court of operating a motor vehicle while under the influence of intoxicating liquor. N.J.S.A. 39:4-50(a). On appeal to the County Court, he was again convicted after a trial de novo on the record. This appeal followed.
The record discloses that on February 3, 1972, at about 10:45 P.M., while operating his motor vehicle, defendant struck another vehicle in the rear. The incident occurred in a well-illuminated area of the Garden State Parkway near a toll plaza. The investigating trooper testified to the odor of alcohol on defendant's breath, to his bloodshot eyes, to his slow and staggering movements, and stated that in his opinion defendant was under the influence of alcohol. He further testified that when defendant was taken to the barracks and asked to take a breathalyzer test, he refused to do so. Also, defendant was unable to complete the finger-to-nose test and was generally uncooperative in performing other requested routine movements to test his coordination. While defendant admitted he had four drinks before dinner, he explained that his bloodshot eyes, unsteady gait and inability to perform the various coordination tests were the result of injuries sustained in the accident and a preexisting physical condition characterized as club feet.
Defendant contends the finding of guilty was against the weight of the evidence and that the County Court judge failed to make independent findings of fact.
Our examination of the record satisfies us that these contentions are without merit.
Defendant next contends it was reversible error to admit evidence of his refusal to take the breathalyzer test, contending the trial judge relied upon it in reaching his conclusion. In support of his position defendant cites the cases of State v. Homer, 86 N.J. Super. 351 (App. Div. 1965); State v. Immerman, 73 N.J. Super. 421 (App. Div. 1962), and State v. Ingram, 67 N.J. Super. 21 (Cty. Ct. 1961). It was the rationale of the court in Ingram that since the Legislature had conferred upon one accused under the statute the absolute right to refuse to take the breathalyzer test, the exercise of this right should not be the basis of an inference of guilt. Accordingly, such evidence was inadmissible. This holding was restated in Homer and in Immerman, supra, without further elaboration.
After the decision in Homer the Legislature in 1966 amended the statute and significantly revised the law to eliminate the necessity for the express consent of one accused to take the test, and in its place incorporated the theory of implied consent as a basis for obtaining a sample of one's breath. The statute now reads, in part, as follows:
Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood * * *.
The validity of this statute was upheld in State v. Macuk, 57 N.J. 1 (1970), when Justice Hall, speaking for the court, said:
There is a clear legal right to require a motor vehicle operator, arrested on probable cause for driving "under the influence" or "while impaired", to submit to a chemical test of bodily substances to determine the amount of alcohol in his ...