On appeal from the Superior Court, Law Division, Monmouth County.
Allcorn, George B. Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[180 NJSuper Page 546] This matter comes before us on an appeal from the Superior Court, Law Division, Monmouth County, convicting defendant following his conviction entered in the Municipal Court of the Township of Middletown for certain traffic offenses. The trial in the Law Division was de novo on the record made in the municipal court. Thus the facts as set forth herein are derived from the municipal court trial.
At about 2:30 a.m. on June 6, 1979 patrolman Michael Hoydis of the Middletown Township police department was investigating an automobile accident. He found an empty vehicle overturned in a public road in the Township of Middletown. There was no apparent driver or occupant in the area. The vehicle was extensively damaged. The windows were broken and there was blood on the driver's seat. Investigation revealed that the vehicle was registered to defendant, a resident of Fair Haven. Hoydis and a Fair Haven police officer, Sergeant Robert O'Neil, went to defendant's residence about 4 a.m. They were admitted to defendant's house by his wife. A few minutes later defendant appeared. Hoydis noted that defendant was cut and bleeding from his knees down. There were flakes of glass in his beard. He appeared to be intoxicated. Defendant explained that he had driven the car earlier to a tavern and left the car there and walked home because he was "too drunk to drive it home." He stated that he had cut his leg working on his swimming pool in the afternoon and that he must have tripped on a curb on the way home in the evening.
The police understandably were not satisfied with defendant's explanation. Defendant was accordingly arrested and then requested by the police to take a breathalyzer test to determine the content of alcohol in his blood. See N.J.S.A. 39:4-50.2. Defendant refused to take the examination. Defendant was subsequently charged in the Middletown Municipal Court with driving under the influence of intoxicating liquors, N.J.S.A. 39:4-50, leaving the scene of an accident, N.J.S.A. 39:4-129 and failure to report an accident, N.J.S.A. 39:4-130. Additionally, Patrolman Hoydis notified the Director of the Division of Motor Vehicles of defendant's refusal to take the test. This notification was required by N.J.S.A. 39:4-50.4, which provides that if an "operator" of a motor vehicle, after being arrested for violation of N.J.S.A. 39:4-50, refuses to submit to a chemical test to determine the content of alcohol in his blood, the arresting officer shall cause to be delivered to the Director a sworn report of such refusal specifying the circumstances surrounding
the arrest and the grounds upon which the officer had concluded that he was violating N.J.S.A. 39:4-50. N.J.S.A. 39:4-50.4 provides that if the Director determines that the officer acted in conformity with N.J.S.A. 35:4-50.1 et seq. , he shall suspend the operator's driver's license unless the operator requests a hearing. If the operator requests a hearing, the Director then determines at the hearing "whether the arresting officer had reasonable grounds to believe the person had been driving . . . while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test upon request of the officer." If these issues are determined adversely to the operator his license is suspended.
Defendant requested a hearing, which was then held on December 3, 1979 by an administrative law judge prior to the municipal court trials for the traffic offenses. Patrolman Hoydis was the only witness at the hearing in support of the suspension notice. He related most of the testimony later given in the municipal court. Defendant rested without testifying or presenting other witnesses. The judge reserved decision. In a written "initial decision" dated December 23, 1979 he made a recommended decision to the Director of the Division of Motor Vehicles.*fn1 In his decision he related that the issues were "whether the arresting officer had reasonable grounds to believe that John H. Hanemann had been driving . . . while under the influence of intoxicating liquor," whether he was arrested and whether he refused to submit to a breathalyzer. He then recited the evidence at length. Ultimately he reached the following conclusion:
Based on the foregoing, I FIND that reasonable grounds to believe that John J. Hanemann had been driving, or was in actual physical control of a motor vehicle on the public highways of this State, has not been established by a preponderance of the credible evidence of record. On the contrary, the record fails to establish a nexus between the accident and Mr. Hanemann's operation of the
subject vehicle. A period of two hours had elapsed between the time that the arresting officer arrived at the scene of the accident and his first contact with the licensee. There were no witnesses to the accident. Furthermore, the licensee told the officer that he arrived home at 2:00 a.m., approximately one-half hour before the accident. This story was apparently corroborated by a third party, as the officer admitted on cross-examination. The licensee also told the officer that he was not driving.
In re Emberton , 109 N.J. Super. , 211 (1970) required that reasonable grounds be assessed from the point of view of the arresting officer at the time he acted. Applying a reasonable nexus to the facts sub judice would, in the words of counsel, require a quantum leap from the point of the accident to the point of first contact with the licensee. The gap, in time and evidence, cannot be bridged by the evidence of record.
Thus, having concluded that reasonable grounds have not been established, it is ORDERED that ...