Fritz, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.
[130 NJSuper Page 75] Defendant was found asleep in his automobile on the shoulder of Interstate Highway 287 in Piscataway Township, New Jersey, in the early hours of March 25, 1973 by a State Trooper. Defendant was alone in the automobile. The headlights were on, and the engine was running. After the state trooper was finally able to awaken defendant, he was arrested for operating a motor vehicle under the influence of intoxicating liquor, contrary to the provisions of N.J.S.A. 39:4-50(a). Defendant was found guilty of the charge in the Piscataway Municipal Court.
His driver's license was suspended for two years, and he was fined $200. 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 was imposed. He appeals to this court, contending in substance that (1) he was wrongly convicted because the State failed to adduce evidence to show that the offense was committed in the presence of the arresting officer, as required by N.J.S.A. 39:5-25, and that the State failed to prove beyond a reasonable doubt that he was operating his vehicle in violation of the provisions of N.J.S.A. 39:4-50(a), and (2) the trial court erred in admitting the results of the Breathalyzer test into evidence because the test ampoules used in the test were not made available to him for inspection.
Defendant contends that since no violation of N.J.S.A. 30:4-50(a) occurred in the arresting officer's presence, there was no valid arrest, and the State therefore should have been precluded from relying on any evidence derived from the illegal arrest, including, we assume, the results of the Breathalyzer test. This argument is completely without merit.
N.J.S.A. 53:2-1 empowers members of the State Police "to make arrests without warrant for violations of the law committed in their presence." The Motor Vehicle Act similarly requires that violations thereof occur in the "presence" of the arresting officer to justify or substantiate a warrantless arrest. N.J.S.A. 39:5-25. The word "presence" used in these acts "sums up the requirement that the officer know of the event by the use of his senses." State v. Smith, 37 N.J. 481, 495 (1962), cert. den. 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). To satisfy the "presence" requirement, an arresting officer need not be a witness to the offense. An arrest may be made on the admission of the offender to the arresting officer, even though
without the admission the officer would not have any knowledge of the offense. See State v. Morse, 54 N.J. 32 (1969), wherein our Supreme Court expressly pointed out the purpose of the "presence" requirement involving an arrest for an offense of the type here involved, as follows:
We see nothing unreasonable in an arrest made upon the basis of the individual's own statement. Indeed it may be absurd to let the offender go when the chances of finding him thereafter are remote. [at 36]
In State v. Macuk, 57 N.J. 1 (1970), the Supreme Court upheld a warrantless arrest of the defendant for drunken driving, where defendant admitted to the arresting officer that he had been driving the car and identified himself and admitted that he had been drinking. Defendant in the case before us admitted to the state trooper that he had been drinking in a bar in Rahway and that thereafter he drove his car to take someone home to Piscataway. He told the state trooper that he did not feel too well and therefore stopped. The evidence compels the conclusion that the offense with which defendant was charged and for which he was arrested was committed in the state trooper's presence within the meaning of N.J.S.A. 39:5-25, and that the arrest was valid. The evidence adduced as a result thereof, including the results of the Breathalyzer test, was properly admissible.
Furthermore, defendant is precluded from raising the issue that the evidence adduced by the arrest is inadmissible
on appeal for the first time, since he failed to move in advance of trial to suppress such evidence in accordance with the rules of court and offered no justification for his failure to do so. See R. 3:5-7; State v. DiRienzo, 53 N.J. 360, 384 ...