[174 NJSuper Page 515] Defendant appeals from the judgment of the Rockaway Township Municipal Court finding him guilty of reckless driving
in violation of N.J.S.A. 39:4-96. He was fined $40 and assessed $10 in costs.
The only summons issued to defendant charged him with driving under the influence of alcoholic beverages. N.J.S.A. 39:4-50(a). After hearing the proofs, the municipal court judge determined that the charge of "drunk driving" had not been proven beyond a reasonable doubt, but he found defendant guilty of the uncharged offense of reckless driving. In effect, the judge on his own motion amended the complaint to charge what he believed to be a lesser included offense. The judge apparently misunderstood the restriction contained in R. 7:10-2, which prohibits amending to a substantively different offense.
The facts underlying this appeal are relatively simple. On July 28, 1979, at about 11 p.m., Trooper Delesio was assigned to investigate a one-car accident off the westbound lane of Route 80. Defendant was driving his family home on the interstate highway from a friend's house when his car swerved to the right, jumped the curb and went down an embankment.*fn1 The trooper found the car upside down at the bottom of the embankment. After observing and listening to defendant as well as smelling his breath, the officer concluded he was under the influence of alcohol. A blood sample taken at the hospital some two hours after the accident indicated a blood alcohol content of .102%. At trial defendant admitted drinking four or five beers during the day of the accident. On these proofs defendant was convicted of reckless driving.*fn2 This was error.
The general power of a municipal court judge to amend a complaint is not questioned. R. 7:10-2 provides:
The court may amend any process or pleading for any omission or defect therein, or for any variance between the complaint and the evidence adduced at the trial but no such amendment shall be permitted which charges a different substantive offense (other than a lesser included offense). . . . [Emphasis supplied]
Reckless driving (N.J.S.A. 39:4-96), however, constitutes a different substantive offense from driving under the influence (N.J.S.A. 39:4-50(a)). Consequently, the municipal court judge's own amendment can be upheld only if reckless driving is a lesser included offense of drunk driving. No New Jersey appellate court has previously addressed this question.
State v. Jahn , 121 N.J. Super. 209 (Cty.Ct.1972), is of some analytical value. The court held that the municipal court judge erred by amending the complaint to conform to the evidence and by finding defendant guilty of speeding after acquitting him on the charged offense of careless driving. The court determined that since speeding is not an essential element of careless driving, speeding could not be a lesser included offense.*fn3
N.J.S.A. 39:4-50 requires proof that an individual was operating a motor vehicle, whether or not on a highway, while his ability to do so was deleteriously affected by alcohol. The essence of the offense is the impaired condition of defendant's physical coordination or mental faculties rather than the manner in which he is driving. Indeed, the vehicle need not actually be moving for one to be convicted. Compare State v. Sweeney , 40 N.J. 359 (1963), with State v. Daly , 64 N.J. 122 (1973).
On the other hand, reckless driving necessitates the driving of a vehicle on a highway "heedlessly, in willful or wanton disregard of the rights and safety of others, in a manner so as to endanger, or to be likely to endanger a person or ...