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State v. Burns

Decided: May 22, 1978.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DONALD BURNS, DEFENDANT-RESPONDENT



On appeal from Passaic County Court, Law Division.

Lynch, Kole and Petrella.

Per Curiam

The State appeals pursuant to leave granted from an order suppressing evidence of a blood sample taken in connection with a drunk driving charge.

At the suppression hearing the only witness who testified was the arresting officer. The following are the essential facts. On March 14, 1977, at about 11:15 P.M., defendant was arrested when his auto was observed by the arresting officer "swerving around in the slow lane" and shortly thereafter "hitting the right shoulder." After stopping defendant the officer observed defendant's manner and smelled alcohol. He placed defendant in the rear seat of the patrol car with his hands "cuffed" behind him. While proceeding to headquarters, the officer noticed defendant bump his head on the window. Defendant requested to be taken to the hospital, but this request was initially denied because no injury was observed. Defendant refused to submit to a breathalyzer or any other form of testing. It was then decided that he would be taken to the hospital, where x-rays were negative. The hospital record did indicate that defendant had a contusion on his forehead. The hospital refused the officer's request to perform a blood test without defendant's consent. According to the arresting officer, defendant indicated he would comply with the officer's request to have a blood sample taken after the doctor represented in writing that he was not injured. However, even after being shown the medical report, defendant refused to permit the sample to be drawn.

After the examination at the hospital defendant was taken to the Pompton Medical Center, which was a few minutes drive from the hospital, where the licensed director took a blood sample. It is undisputed that defendant offered no physical resistance to the test and did not affirmatively consent to the test. There is no allegation that physical force was used (not considering the act of insertion of a needle). The trial judge refused to allow testimony of the

licensed director's qualifications or to take judicial notice*fn1 of his expertise as to the taking of such samples. The trial judge, in suppressing the evidence, found the search was contrary to N.J.S.A. 39:4-50.2. He implied that even though there was no physical violence, the test was taken without consent, and he seemed to emphasize the discrepancy between the officer's not noticing any injury and the hospital's finding of a contusion.

The trial judge used a concept, not of actual physical force or violence, but rather the coercive effect of defendant being handcuffed and taken from the hospital, where he had refused the test, to the medical center. However, this is not the kind of force which prohibits the use of chemical tests in a drunken driving case. State v. Macuk , 57 N.J. 1 (1970).

The trial judge erred in his interpretation of N.J.S.A. 39:4-50.2(d) when he construed that subsection to include the circumstances of being arrested for drunk driving and the ambiance of the situation. However, that section is limited to a prohibition when the chemical test or specimen is "made or taken forcibly and against physical resistance." To apply the criterion used by the trial judge of a finding of coercion from the circumstances of an arrest situation would in effect mean that the statute broadly applies to all situations and to every chemical test taken after an arrest for drunk driving, and might be argued to negate implied consent even as to the breath test. The mere fact of arrest and being handcuffed is not a sufficient showing of coercion.

Here, as in State v. Macuk, supra, N.J.S.A. 39:4-50.2, in effect when defendant was arrested (and not affected by an amendment by virtue of L. 1977, c. 29), is limited in subsection (a) to samples of the breath when speaking of

implied consent. Justice Hall, speaking for a unanimous court in State v. Macuk, supra , said in strong terms:

Chapter 142, importantly, struck from N.J.S.A. 39:4-50.1 the former requirement of consent to or request by the defendant for any chemical analysis or specimen with respect to driving 'under the influence'. (And no such requirement was contained ...


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