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State in Interest of M.P.C.

September 16, 1977

STATE OF NEW JERSEY, IN THE INTEREST OF M.P.C., A JUVENILE


Rosenberg, J.J.D.R.C.

Rosenberg

Defendant is charged with juvenile delinquency in causing the death of another by driving a vehicle carelessly and heedlessly, in willful or wanton disregard of the rights or safety of the decedent, in violation of N.J.S.A. 2A:113-9, N.J.S.A. 2A:4-44b. Although a minor, defendant is a licensed driver necessarily over the age of 17 and was entitled, at his election, to trial in the criminal court with the availability of trial by jury. He has, however, elected to be tried in the Juvenile Court wherein there is no provision for trial by jury. N.J.S.A. 2A:4-60.

This is a motion by the State directed to defendant and The Society of the Valley Hospital (of Ridgewood, hereinafter hospital) to secure the results of an alcohol blood level test performed by that hospital. Defendant refuses to allow the hospital to release the results, contending that they are privileged under N.J.S.A. 2A:84A-22.2 et seq. The hospital states that it will abide by the order of this court.

Prior to this event there was and still is in existence a written agreement between the County of Bergen and the hospital pursuant to which the hospital agreed to take blood level samples of alcohol or other serious drugs and submit them for testing by the police where the efficient administration of justice required that blood alcohol samples be taken from persons arrested for unlawful conduct related to or arising from the use of said alcohol or drugs. The parties have stipulated the existence of the agreement. The agreement further provides that the arresting officer must complete a "Police Blood Sample Request Form" (noted as being available in the hospital's emergency room) prior to the sample being taken. A copy of the request form is annexed to the agreement and it is explicitly stated in said form that the name of the arresting officer, his department,

the date, time and place of arrest as well as the law violated be set forth therein.

On March 5, 1977, Lieutenant Milliken and Patrolman Mulcahey of the Village of Ridgewood were on duty in separate patrol cars, and at about 2:20 A.M., as a result of a radio direction from headquarters, both went to the area of Maple Avenue and Stillwell Place in Ridgewood and there observed a Ford Mustang in contact with a utility pole, with extensive damage to the front and operator's side of the vehicle. Maple Avenue is a north and south thoroughfare and the vehicle was on the easterly lane thereof facing oncoming traffic. It was clearly on the wrong side of the road and no skid marks were observed by either officer. A person was seated in the passenger side of the vehicle in a semi-conscious condition, partially incoherent and suffering from facial cuts. There was no one in the operator's side of the vehicle, and after an unsuccessful search for this person in the bushes, the officers noticed a motor van on the opposite side of the street facing south occupied by a person in the operator's seat with another person sitting next to him. Upon the approach of the police, the latter emerged from the vehicle bleeding from the upper side of his face. Mulcahey noted a heavy odor of alcohol emanating from this person, who walked from side to side, his legs apparently not supporting him. The assistance of both officers was required to lead and seat him in one of the patrol cars. Milliken likewise testified that this person emitted a heavy odor of alcohol, that he staggered across the road to the police car and that his speech was slurred. The person admitted that he was the operator of the Mustang, had been drinking and that he was aware that he had hit something, the nature of which he did not know.

In the opinion of both officers, the operator of the Ford Mustang was intoxicated and unfit to operate a motor vehicle as a result thereof. Later on at police headquarters the operator produced his driver's license.

This person (defendant herein) and his passenger were taken by ambulance to the hospital emergency room, defendant being removed from the police car for this purpose. Dr. Robert Staub, then in attendance, first examined the passenger. Defendant was also in the room on a stretcher. Milliken testified that he then requested from Supervising Nurse Pennise, then also present, that a blood sample be taken of defendant. This request was made in the presence of Mulcahey. Nurse Pennise allegedly refused to comply on two grounds: first, that defendant was a minor and parental consent was essential (defendant's mother later on refused to grant consent) and second, the police had not produced a warrant for the arrest of defendant. Milliken testified that he advised Nurse Pennise that a drunk driving charge was to be made, that no arrest was contemplated, but that he had in fact placed defendant under arrest at the scene and that he would complete any forms required by the agreement aforesaid. Nurse Pennise responded that she was aware of the agreement and its requirements, but nevertheless refused to grant the blood sample because of lack of parental consent, and in her opinion a motor vehicle violation did not in itself constitute the arrest postulated by the agreement.

During the course of her later testimony Nurse Pennise modified her position relative to the legal prerequisite of parental consent, stating that her refusal was predicated purely on the humanitarian basis that defendant was a minor. She further testified that Milliken did not at any time categorically state that defendant was actually under arrest. The basis for the obvious confusion as to the meaning of the word "arrest," as set forth in the agreement and request form, was suggested in the testimony of Nurse O'Brien, who explained that in her understanding, proof of an "arrest" would have been effected had the police produced the original or copy of a motor vehicle summons and complaint. Apparently the nurse would have been satisfied had some tangible written evidence of a motor vehicle violation been submitted. In this respect it is significant that,

according to Milliken, the summons and complaint charging defendant with drunk driving was not prepared until 5:30 or 6 A.M., later that morning. No warrant for defendant's arrest was ever issued nor was he detained after his examination at the hospital -- this although Mulcahey testified that he again placed defendant under arrest at the hospital emergency room, admitting, however, that defendant was unconscious at the time.

Mulcahey's version of the performance of the required procedure and arrest is somewhat inconclusive. He originally stated that defendant was put under arrest at the scene, then allegedly advising Nurse Pennise that no arrest was contemplated, but merely the issuance of a motor vehicle summons and complaint, and that he again put defendant under arrest at the hospital (this, as previously stated, was while defendant was unconscious). Finally, Mulcahey stated that in his opinion an arrest merely meant that there was enough evidence upon which to make a complaint. It is clear factually, however, that at no time from the placing of defendant in the police car was he at liberty to leave, and as stated in Strelecki v. Coan , 97 N.J. Super. 279 (App. Div. 1967):

Officers are not required to make any formal declaration of arrest or apply manual force in order to "arrest" a person. An arrest may be accomplished by any act that indicates an intention to take the person into custody and subject him to ...


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