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State v. Ryan

January 16, 1975

STATE OF NEW JERSEY, PLAINTIFF,
v.
WILLIAM RYAN, DEFENDANT



Meredith, J.s.c., Temporarily Assigned.

Meredith

Defendant in this matter is charged with a violation of N.J.S.A. 39:4-50(a) (driving while under the influence of alcohol). It has previously been determined that defendant, William Ryan, is indigent and therefore counsel has already been assigned at the municipal court level.

The matter now comes before this court by way of a motion for leave to appeal from an interlocutory order of the Branchburg Municipal Court pursuant to R. 3:24. The municipal court entered an order denying defendant's motion that an expert witness be provided for the indigent defendant without cost. On November 25, 1974, this court granted the motion for leave to appeal. Pursuant to that,

briefs were filed by the parties as to the merits of the appeal. An additional hearing on the merits was conducted on December 6, 1974.

In essence, the issues on this appeal fall into two levels. First, should an expert be supplied without cost to indigent defendants in drunken driving cases. If so, should there be the necessity of some showing of cause by the particular defendant under the facts of his case. Secondly, if an expert is supplied, which political unit should bear the expense of supplying such an expert.

There is only one reported case which directly deals with these issues in regard to "drunk driving cases." That decision is State v. Lippincott , 124 N.J. Super. 498 (Mun. Ct. 1973). In that case the Municipal Court of Trenton held that an indigent defendant in a prosecution for driving while intoxicated is entitled to appointment at public expense of an expert witness on the effects of alcohol and that the municipal court has the power to make such an assignment. Also, the court determined that the county is the proper political unit to bear the expense of such an appointment. Needless to say, this court does not necessarily feel bound by the holdings of the municipal court in Lippincott. Furthermore, there are additional questions in this case which warrant the attention of the court.

A prosecution for drunken driving is in the nature of a quasi-criminal proceeding and must be so conducted as to respect and safeguard the basic rights normally accorded one accused of a criminal offense. State v. Lanish , 103 N.J. Super. 441, 443 (App. Div. 1968) aff'd o.b. , 54 N.J. 93 (1969); State v. Guerrido , 60 N.J. Super. 505, 510 (App. Div. 1960); State v. Brezina , 45 N.J. Super. 596, 608 (Cty. Ct. 1957). For a first conviction under N.J.S.A. 39:4-50(a) there is a mandatory forfeiture of driving privileges for two years, in addition to a fine of not less than $200 nor more than $500 and/or 30 days to three months in jail. A subsequent violation brings a mandatory imprisonment of three months and a forfeiture of driving privileges for ten

years. Obviously, the punishments under N.J.S.A. 39:4-50(a) are serious, especially when viewed in the context of our mobile society which frequently makes it necessary for an individual to drive in order to reach his place of employment or merely to carry on the everyday routines of life. It is this seriousness of penalty which has fostered the rule that an indigent defendant in a drunken driving case must have counsel assigned. This necessity for counsel has been established by our Supreme Court in Rodriguez v. Rosenblatt , 58 N.J. 281 (1971):

The practicalities may necessitate the omission of a universal rule for the assignment of counsel to all indigent defendants and such omission may be tolerable in the multitude of petty municipal court cases which do not result in actual imprisonment or in other serious consequences such as the substantial loss of driving privileges. [At 295].

Defendant's right to have counsel assigned is not contested here, for it appears clear that such a right exists. In view of this, the next area of inquiry must be what additional services, if any, are encompassed in the assignment of counsel.

Some insight into this question can be gained from State v. Horton , 34 N.J. 518 (1961). Although Horton is a murder case and deals with a constitutional right to counsel, the following language from the case can be helpful here:

Customarily, and we think properly so, the reasonable costs of necessary items such as experts, whether witnesses or not, medical examinations, scientific tests, photographs, depositions and transcripts, and in essential circumstances, professional investigation, have been ordered paid from public funds by trial courts. The constitutional obligation to furnish counsel to an indigent can sensibly only be construed to include as well that which is necessary to proper defense in addition to the time and professional efforts ...


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