On Appeal from the Municipal Court of Woodcliff Lake.
Frederick W. Kuechenmeister, J.s.c., temporarily assigned.
This is an appeal de novo from the defendant's conviction in the Municipal Court of Woodcliff Lake on January 24, 1983. Defendant was found guilty of driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. Besides the prescribed de novo review of the sufficiency of the evidence below, the two issues on appeal concern the admissibility of blood test results and the requirement that operation of a motor vehicle be contemporaneous with intoxication.
On May 27, 1982 at approximately 2:57 a.m., Linda Sacchieri was upstairs reading at her home on Woodcliff Avenue in Woodcliff Lake. Upon hearing a crash from the street below, Ms. Sacchieri looked out her window and saw an El Camino which had become disabled after apparently striking a telephone pole.
The resident, a four-year member of the local ambulance corps, responded to the scene to offer assistance. She observed defendant sitting behind the steering wheel, and detected a strong odor of alcohol coming from him. When she stated that help was on the way, defendant immediately exited the vehicle and, after falling once, ran down the street. Ms. Sacchieri noted that defendant staggered as he ran, although it was later learned that he had incurred an injury to his knee as a result of the accident.
Defendant was apprehended some one and one-half hours later after police had chased him through a wooded area in town. The arresting officer testified that defendant "reeked of
alcohol," and had trouble standing and speaking. In addition, the officer observed lacerations on defendant's knee and arm. Therefore, defendant was transported to Bergen Pines County Hospital in Paramus.
At the hospital, Patrolman Bruce Conway requested that a blood sample be withdrawn from defendant's person. After submitting the necessary form to the nurse, the officer observed a physician take the blood sample with a clear, grey capped vial which the officer claimed "he could see through." The time in which the blood was withdrawn was approximately 5:09 a.m., some two hours after the accident.
A forensic chemist from the New Jersey State Police Laboratory was called to testify as to the percent alcohol content of defendant's blood. Two readings were taken of the sample by way of head space gas chromatography. The readings were .153 and .156 percent blood alcohol.
Defendant's first argument on appeal concerns the admissibility of the blood test result. The argument is founded not on the need for proof of the manner in which the test was performed, which was sufficiently formulated in State v. Martorelli, 136 N.J. Super. 449 (App.Div.1975), but rather the method by which the actual blood sample was withdrawn. The issue, ...