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State v. Nunez

January 15, 1976

STATE OF NEW JERSEY, PLAINTIFF,
v.
JUAN NUNEZ, DEFENDANT



Schiaffo, J.c.c.

Schiaffo

[139 NJSuper Page 29] On September 29, 1975, at 1:40 A.M., Trooper Edward Boyd of the New Jersey State Police was detailed to the eastbound lane of Interstate 80 in Saddle Brook to investigate a motor vehicle accident. Upon arriving at the scene the trooper observed an automobile against the concrete center divider. The automobile had extensive damage to its front end. The trooper also saw two men outside the car sitting on the curb in the center of the roadway. He attempted to interview both men, but it appeared that neither man was able to understand English. Boyd finally ascertained that Juan Nunez, a resident of New York State, was the driver of the vehicle and detecting a strong odor of alcohol on Nunez, he took him to the Hackensack barracks for a breath test to determine the amount of alcohol in his blood. At the barracks Boyd was unable to communicate with Nunez, but was able to direct Nunez to take the breathalyzer

test by using motions. Although Nunez appeared not to understand the trooper, Boyd read to Nunez his right to have an independent test performed by a person of his choice. Defendant moves that the evidence obtained by the police breath test be suppressed, because Nunez did not understand his N.J.S.A. 39:4-50.2 right to have an independent test performed.

It is a well established principle of law that driving a motor vehicle on the highways of the State is a privilege, not a right, and that the State may enact reasonable laws with which automobile drivers must comply. State v. Jones , 122 N.J. Super. 585 (Cty. Ct. 1973); State v. Kabayama , 94 N.J. Super. 78 (Cty. Ct. 1967); Garford Trucking Inc. v. Hoffman , 114 N.J.L. 522 (Sup. Ct. 1935). "The operation of a motor vehicle while under the influence of intoxicating liquor * * * involves extraordinary danger of injury to the driver or other members of the public * * *." State v. Gillespie , 100 N.J. Super. 71, 75 (App. Div. 1968). To protect its citizens from the danger of those who would drive while influenced by the consumption of alcohol, the State has adopted N.J.S.A. 39:4-50. This statute provides penalties for operating a motor vehicle while under the influence of or impaired by alcohol. To effectuate N.J.S.A. 39:4-50, the Legislature has enacted N.J.S.A. 39:4-50.2(a) which states:

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of section 39:4-50 of the Revised Statutes.

(b) A record of the taking of any such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.

(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

(e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant.

This statute expressly provides that anyone driving on the highways of New Jersey has given his implied consent to submit to a breathalyzer test to determine whether he is driving in violation of N.J.S.A. 39:4-50. State v. Tolbert , 100 N.J. Super. 350 (Cty. Ct. 1968); State v. Macuk , 57 N.J. 1 (1970).

Subsections (c) and (d) of N.J.S.A. 39:4-50.2 further provide that the police officer administering the breath test shall inform the person tested of his right to have a breath sample and test performed by a person or physician of his own choosing. In the present case the police officer read the following statement to Nunez which related these statutory rights to him.

I have reason to believe you operated a motor vehicle in violation of the New Jersey Drinking Driving Law. ...


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