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State v. Kaye

Decided: November 21, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN KAYE, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, Ard and Furman. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Defendant Marvin Kaye appeals from his conviction entered on a plea of guilty to causing death by automobile in violation of N.J.S.A. 2A:113-9. On appeal, defendant solely challenges the trial judge's denial of his pretrial motion to exclude the results of a blood-alcohol test on the ground that the State allegedly failed to comply with the provisions of R. 3:13-3(a)(4) by not preserving a portion of the blood sample for discovery purposes. Essentially, he claims that the failure of the State to furnish the blood sample violated his right to due process of law.

On January 8, 1977, at about 2:31 a.m., defendant was operating his automobile in the southbound lane of Route No. 168 in Runnemede, New Jersey. When defendant's automobile was at or near the entrance to the New Jersey Turnpike, it crossed the centerline and entered the northbound lane. Defendant's vehicle then collided head-on with an automobile driven by John J. Welsh IV. Welsh was taken to J.F.K. Hospital where he was pronounced dead. Defendant was taken to the West Jersey Hospital.

Patrolman Scott of the Runnemede Police went to the West Jersey Hospital to interview defendant. Patrolman Scott detected a strong odor of alcohol on defendant's breath and requested that a blood sample be taken for purposes of determining the alcoholic content of defendant's blood. Patrolman Scott also advised defendant of his right to have a second blood sample drawn at his own expense for his independent testing.

Defendant refused to exercise his right to have a second sample taken but signed the hospital request form in which he consented to the taking of the sample Patrolman Scott had requested. The blood was drawn under the supervision of a hospital physician, and the blood sample was sent to the New Jersey State Police Laboratory at Hammonton, New Jersey, for analysis. The analysis revealed that the alcoholic content of defendant's blood was .145%. Under N.J.S.A. 39:4-50.1(3), a defendant is presumed to be under the influence of intoxicating liquor if the weight of alcohol in his blood is .10% or more. According to established procedure, the blood sample was also tested for drugs. This test proved to be negative. The two testings consumed the entire blood sample.

Defendant was arrested and charged with careless driving and driving while under the influence of alcohol. Subsequently, he was indicted by the Camden County grand jury and charged with causing the death of Welsh by driving an automobile carelessly and heedlessly, in willful and wanton disregard of the right or safety of others, in violation of the provisions of N.J.S.A. 2A:113-9. Defendant entered a plea of not guilty and requested in pretrial discovery that the prosecutor furnish him with authorization to procure for independent laboratory testing the blood sample drawn from him. The prosecutor furnished defendant with a copy of the blood-alcohol test, but was unable to furnish defendant with the blood sample because it had been consumed during the testing by the State Police Laboratory. Defendant thereupon moved for an order "excluding all evidence relating to a blood sample drawn" from him on the ground that "the State had failed to furnish discovery of the sample despite defendant's timely written request therefor pursuant to R. 3:13-3." At the conclusion of the hearing Judge Bigley in the Law Division denied the motion and held that the results of the blood-alcohol test were admissible in evidence. The judge found that since defendant had been advised of his right to have a sample of his blood taken and chemically tested by a physician of his own choice, as required by N.J.S.A.

39:4-50.2(c), and had been furnished with a copy of the record of the taking of the sample, disclosing the date and time thereof as well as the result thereof, as required by N.J.S.A. 39:4-50.2(b), defendant's due process guarantees were more than adequately protected.

Defendant then entered a retraxit plea of guilty to causing death by automobile and was sentenced to State Prison for one to three years. His motion for reconsideration of the sentence was denied, and this appeal followed.

I

Preliminarily, the State argues that defendant's plea of guilty to the indictment constitutes a waiver of all nonjurisdictional objections to the State's pre-plea conduct, and therefore this challenge to ...


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