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State v. McGeary

Decided: July 8, 1974.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS J. MCGEARY, DEFENDANT-APPELLANT



Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.

Michels

Defendant was found guilty in the Municipal Court of the Township of Piscataway of driving while under the influence of intoxicating liquor, in violation of the provisions of N.J.S.A. 39:4-50(a). His driver's license was suspended for two years and a $200 fine imposed. He appealed to the Middlesex County Court where, after a trial de novo on the record below, he was again found guilty and the same sentence imposed. The judgment was stayed pending the outcome of an appeal to this court.

Defendant contends that reversible error was committed by allowing into evidence the inspection certificate to establish that the Breathalyzer was in proper operating order, without requiring the State Police coordinator who actually inspected the instrument to testify, and that in the absence of evidence of the results of the Breathalyzer test there was insufficient evidence to support a conviction of driving under the influence of alcohol in violation of the provisions of N.J.S.A. 39:4-50(a).

We are satisfied that there was sufficient credible evidence in the record to support the finding of guilt without considering the result of the Breathalyzer test. See State v. Johnson, 42 N.J. 146, 157-162 (1964). Defendant was observed operating his vehicle in an erratic manner. In fact, his vehicle was observed crossing the center lane going into the oncoming lane of traffic and back into the proper lane again. When defendant was stopped by the police officers a strong odor of alcohol was detected on his breath, and he had difficulty finding his driver's license in his wallet until it was pointed out to him by the officers. When defendant was asked if he had been drinking, he responded in the affirmative and in fact stated, in response to a question as to

how much he had been drinking, "too much." Moreover, defendant did not even know whether he was in Piscataway or Parlin, which are ten miles apart. When he was placed under arrest and taken to the police station, where he performed various physical tests, he was unsteady on his feet and evidenced a lack of coordination. Finally, one of the experienced police officers testified that defendant was "definitely under the influence of alcoholic beverage." The evidence was overwhelming in support of his conviction without regard to the Breathalyzer reading.

The County Court judge commented that even in the absence of the Breathalyzer reading it "would have no doubt about the fact that this man had been affected and was impaired by the consumption of alcoholic beverages." The suggestion that the county judge did not find defendant guilty of violating N.J.S.A. 39:4-50(a) is completely without merit. The statement quoted above must be considered in its context. Defendant was not charged with nor was any argument made that he should be found guilty of operating a motor vehicle while his ability was impaired by the consumption of alcohol pursuant to N.J.S.A. 39:4-50(b). Obviously the trial judge was merely expressing his finding of drunken driving in the light of its legal connotation. In State v. Emery, 27 N.J. 348, 355 (1958), the Supreme Court expressly held that it is not a prerequisite to a conviction of driving under the influence of intoxicating liquor "that the accused be absolutely 'drunk', in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected." See also State v. Johnson, supra, 42 N.J. at 165-166; State v. Rodgers, 91 N.J.L. 212, 215 (E. & A. 1917); State v. Glynn, 20 N.J. Super. 20, 25 (App. Div. 1952); State v. Miller, 64 N.J. Super. 262, 265 (App. Div. 1960). The County Court's finding that "this man had been affected and was impaired by the consumption of alcoholic beverages" cannot reasonably be

interpreted to mean that defendant was merely found guilty of operating a motor vehicle while impaired by consumption of alcohol under N.J.S.A. 39:4-50(b).

The thrust of defendant's argument, that it was error for the courts below to admit into evidence the inspection certificate of the Breathalyzer instrument as a business record, is that defendant was thereby deprived of the opportunity to cross-examine the State Police coordinator as to his qualifications to test the Breathalyzer and as to the procedure followed by him in actually testing the instrument to determine whether it was in proper operating order. Defendant relies for support upon the following excerpt from the Supreme Court opinion in State v. Johnson, supra :

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing). * * * [42 N.J. at 171]

Defendant also argues that even if the inspection certificate is a business record within the meaning of Evid. R. 63(13), the State failed to lay a proper foundation for its admissibility under the rule, or to properly authenticate it, pursuant to Evid. R. 67. The County Court judge followed decisions of courts in the same county, wherein inspection certificates have been admitted in evidence as business records to prove that the Breathalyzer was in proper operating order. Other courts have accepted inspection certificates as proof of this essential fact. See, e.g., State v. Hudes, 128 N.J. Super. 589 (Cty. Ct. 1974). Contra, State v. Conners, 125 N.J. Super. 500 (Cty. Ct. 1973).

The Breathalyzer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test. State ...


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