Carton, Lora and Seidman. The opinion of the court was delivered by Carton, P.J.A.D.
Defendant was convicted in the municipal court of disregarding a traffic signal, specifically, passing a red light on Hooper Avenue in Brick Township. He was fined $10 and assessed $10 additional costs. After a trial de novo in the County Court he was again found guilty.
Defendant appeals, contending on appeal, as he did below, that the State failed to prove beyond a reasonable doubt an essential element of its case -- that the traffic signal was placed in accordance with the law. The statute on which he was convicted reads in pertinent part as follows:
The driver of every vehicle * * * shall obey the instructions of any official traffic control device applicable thereto, placed in accordance with the provisions of this chapter. * * * [ N.J.S.A. 39:4-81; emphasis supplied]
Both the municipal court and the County Court took the position that the alleged invalidity of the signaling device was an affirmative defense and that the burden of establishing it rested upon the proponent. We agree.
Our courts have stated that the Motor Vehicle Act is penal, and a violation of its provisions results in a prosecution of a quasi-criminal action. State v. McCarthy, 30 N.J. Super. 6, 9 (App. Div. 1954); State v. Ring, 85 N.J. Super. 341, 343 (App. Div. 1964), certif. den. 44 N.J. 407 (1965), cert. den. 382 U.S. 812, 86 S. Ct. 24, 15 L. Ed. 2d 60 (1965). Further, the courts have said that as in all criminal prosecutions the State has the burden of proving all the essential elements of a motor vehicle violation. State v. Ring, supra at 343.
The statute makes it clear that the essential elements of a violation are that (1) defendant was a driver of a vehicle; (2) he failed to obey the instruction of a control device; (3) the device in question was official, and (4) the device was placed pursuant to the applicable statutes. Absent a presumption shifting the burden of going forward, it would seem that the obligation would ordinarily rest upon the State of showing that the traffic control device in question was an official one and that it was properly placed at its location.
Whether there is such a presumption in a case involving a violation of the Motor Vehicle Act has not, until this time, come before the courts of this State. However, this court has determined that there exists such a presumption as to the official nature and proper placement of traffic control devices in civil cases. Davidson v. Fornicola, 38 N.J. Super. 365 (App. Div. 1965), certif. den. 20 N.J. 467 (1956). There we said:
* * * [ I ] n civil actions such objects of the common and conventional size, shape and appearance as stop signs, traffic signals and devices, safety isles, and pavement markings as may be placed in or over and on the public streets and highways shall in the absence of evidence which renders the presumption unavailable, be presumed to have been lawfully erected, placed and maintained. The presumption is, however, of a rebuttable nature. * * * We emphasize that our ruling is intended only to be applicable to the trial of civil actions. * * * [at 379]
From a standpoint of reason and common sense we think a similar presumption should apply with respect to the erection of a traffic ...