Fritz, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.
Defendant was found guilty in the Municipal Court of Manalapan Township of driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a). His driver's license was suspended for two years and a $200 fine was imposed. He appealed to the Monmouth County Court and after a trial de novo on the record below was again found guilty and the same sentence was imposed. Judgment was stayed pending the outcome of an appeal to this court.
Defendant contends that his conviction should be reversed because (1) the County Court erred in that its finding of intoxication was based on a chart contained in the New Jersey State Police Drinking Driving Enforcement Guide, which was not in evidence; (2) the State did not prove that defendant was guilty beyond a reasonable doubt of driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50a; (3) defendant's Fourteenth Amendment right to due process was violated by the Manalapan Township police officers; and (4) the County Court erred in vacating its order of September 4, 1973, adjudging defendant guilty of operating a motor vehicle while his ability to do so was
impaired by consumption of alcohol, in violation of N.J.S.A. 39:4-50(b). The State contends on its cross-appeal that the County Court erred in ruling that the inspection certificates for the Breathalyzer instrument were not properly admissible to prove that the instrument was in proper working order, without testimony and cross-examination of the State Police coordinator who tested the instrument.
It is fundamental that the findings of fact of a trial court must be based on evidence present in the record, Stuyvesant Ins. Co. v. Sussex Fire Ins. Co., 90 F. 2d 281, 283 (3 Cir. 1937), cert. den. 302 U.S. 742, 58 S. Ct. 144, 82 L. Ed. 573 (1937); Dudley Co. v. Aron, 106 N.J.L. 100, 103-104 (E. & A. 1929), or on matters judicially noticed in proper fashion. Evid. R. 9-12. While it appears from the record that the chart contained in the New Jersey State Police Drinking Driving Enforcement Guide (March 1968) was not in evidence or properly made the subject of judicial notice, and for that reason should not have been considered or referred to by the County Court judge in his written opinion, we are convinced that defendant was not prejudiced in any regard by the reference thereto. At the outset, we are satisfied that there was more than enough evidence in the record to find defendant guilty of driving while under the influence of intoxicating liquor without considering the chart referred to above. As a matter of fact, on the motion for an order to vacate the judgment, the County Court judge commented that he still would have found defendant guilty without regard to the chart. More importantly, however, the County Court judge actually only referred to the chart "as one source of meaningful information" in articulating his finding of defendant's guilt of driving while "under the influence" of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a).
Defendant's argument that the finding of guilt of driving while under the influence of intoxicating liquor, in violation of N.J.S.A. 39:4-50(a), was against the weight of the evidence is entirely without merit. Careful review of the record below satisfies us that there was sufficient credible evidence to support the conviction. See State v. Johnson, 42 N.J. 146, 161-162 (1964).
Defendant's argument that his Fourteenth Amendment right to due process was violated by the conduct of the Manalapan Township police in insisting on obtaining fingerprints and mug shots of him, contrary to N.J.S.A. 53:1-15, and in refusing to permit cash bail to be posted for him because of his refusal to submit to their booking procedures, is also without merit. Preliminarily, we point out, however, that the Manalapan Township police had no right to fingerprint and take mug shots of defendant since he was not arrested for an indictable offense. See Oberg v. Dept. of Law & Public Safety, 41 N.J. Super. 256 (J. & D.R. Ct. 1956). N.J.S.A. 53:1-15 provides in pertinent part:
A proceeding for a violation of N.J.S.A. 39:4-50 is quasi -criminal in nature. State v. Hunter, 4 N.J. Super. 531, 537 (App. Div. 1949). Drunken driving is not a crime. State v. Cusick, ...