On appeal from Superior Court, Law Division, Monmouth County.
Matthews, Pressler and Petrella.
Two appeals by defendant arise out of his convictions of drunk driving and other motor vehicle offenses. The first appeal challenges his convictions of various motor vehicle offenses in the municipal court. The second appeal is from the revocation of defendant's driving privileges by the Director of Motor Vehicles (Director) because of his initial refusal to take a breathalyzer test even though he subsequently attempted to cure that refusal by offering to take the test. We have consolidated both appeals on our own motion for purposes of decision.
On April 28, 1980 defendant was issued four summonses returnable in the Borough of Red Bank Municipal Court, alleging various violations of the motor vehicle laws arising out of two motor vehicle accidents which occurred within five minutes of each other on that date. Following a trial the municipal court judge found defendant guilty of careless driving (N.J.S.A. 39:4-97); leaving the scene of the second accident which involved property damage (N.J.S.A. 39:4-129(b)), and driving while under the influence of alcohol (N.J.S.A. 39:4-50(a)). Defendant was acquitted of a charge that he left the scene of the first accident which resulted in personal injury (N.J.S.A. 39:4-129(a)).*fn1
The municipal court judge imposed fines of $25 and costs of $15 on the convictions for careless driving and leaving the scene of the second accident. On the conviction for driving while under the influence of alcohol, he imposed a $500 fine, $15 costs and suspended defendant's driver's license for two years.
Defendant appealed his convictions to the Law Division pursuant to R. 3:23-8(a) and was again found guilty of the three violations. However, the trial judge merged the sentences for the convictions of careless driving and driving while under the influence of alcohol, imposing a $500 fine and $15 costs thereon and suspending defendant's license for one year. He further fined defendant $25 and imposed $15 costs for leaving the scene of an accident. Defendant now appeals those convictions, alleging that the trial judge erred in his determinations of guilt as to each offense. He also appeals directly to this court from the administrative determination by the Director of the Division of Motor Vehicles revoking his driving privileges. R. 2:2-3(a)(2).
The following factual scene was established below. At about 9:07 p.m. on April 28, 1980 Patrolmen James Clayton and Robert Colmorgen of the Red Bank Police Department received a radio communication from Police Sgt. Raymond Moore advising that a light-colored pickup truck was identified as the vehicle which at 9:03 p.m. had struck the front of a motor vehicle which was discharging a passenger. Shortly thereafter the patrolmen observed a truck of that description passing another car and travelling south in the northbound lane of Broad Street in Red Bank. The truck had one headlight on and appeared to have been in an accident. The officers followed the truck to Monmouth Street and stopped it a short distance from the police station. Although there did not appear to have been any erratic driving by defendant up to that point, the officers, based upon their conversation with defendant, concluded that defendant
was driving while under the influence of alcohol. Clayton testified that there was a strong odor of alcohol from defendant's breath, that his eyes were watery and bloodshot and that his eyelids were "droopy." Colmorgen stated that defendant had difficulty locating his personal papers in the vehicle and that he was holding on to the side of the truck until he was escorted to the police car. Defendant was arrested for driving under the influence of alcohol and taken across the street to the police station where he was issued a summons for leaving the scene of an accident. He was further charged with careless driving and leaving the scene of a second accident which occurred some time between the first accident and the time his vehicle was observed by the patrolmen.
At the police station the officers questioned defendant before a videotape camera regarding his involvement in the accidents and his consumption of alcohol during that evening. The videotape was entered into evidence at both trials and showed that at 9:25 p.m. defendant refused to take a breathalyzer test unless he could first consult with his attorney. This refusal was despite Clayton's repeated warnings that he was required by law to submit to such an examination. See N.J.S.A. 39:4-50.2. During the interrogation defendant stated that he had had two or three beers with dinner between 8:45 and 9 p.m. that evening and that he had taken medically prescribed Valium at 2 p.m. that day in connection with treatment for an injury he had suffered earlier that month. Defendant claims that after consulting his attorney by telephone from the police station he requested the breathalyzer test but this request, made at about 10:15 p.m., was refused by the police.
Defendant testified at the municipal court trial. Although he denied involvement in the earlier accident, he admitted that he was involved in a collision with another car at 9:07 p.m.*fn2 According to ...