On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels and Pressler. The opinion of the court was delivered by Michels, P.J.A.D.
[202 NJSuper Page 400] Defendant Eugene F. Mulcahy was found guilty in the Cresskill Municipal Court of operating a motor vehicle while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50(a) and of refusing to submit to an alcohol breath test in
violation of N.J.S.A. 39:4-50.4a.*fn1 The municipal court judge suspended defendant's license for 6 months and fined him $250 for operating the motor vehicle while under the influence of intoxicating liquor and suspended his license for an additional 6 months and fined him an additional $250 for refusing to submit to the alcohol breath test. Defendant appealed to the Law Division where, following a trial de novo on the record below, he was again convicted of both offenses and the same sentences were imposed. The judgment was stayed pending the outcome of the appeal to this court.
The events which led to defendant's convictions occurred on October 7, 1983. According to the State's proofs, at approximately 7:30 p.m. that day, Sean Dunay, a 15-year old boy, was standing near Bondy's Tavern when he saw defendant "driving down Piermont" Road in Cresskill toward Demarest. Dunay testified that as defendant attempted to pull into a driveway "right by Bondy's . . . he missed pulling into the driveway and came up on the curb and hit his license plate." Dunay testified that after hitting the curb defendant pulled away from the curb, pulling off his "license plate half way" so that "it was hanging on by one screw." Defendant proceeded down the street, "stopped for a while in the middle of Piermont and then just pulled away and drove away." Dunay further testified that at approximately 9:30 p.m. that same evening he saw defendant again. This time, according to Dunay, defendant "came from the direction of Tenafly," parked by Jolly Nick's, which is next to Bondy's Tavern, and after getting out of his car staggered across Piermont.
At approximately 9:45 p.m. Officers Macchio and McLaughlin of the Cresskill Police Department arrived at the area of Bondy's Tavern. Officer Macchio testified that defendant's car [202 NJSuper Page 402] was parked on a sidewalk which was not a parking area. He observed defendant approach the car, enter the car, and take the car key in his right hand. As defendant "started to make his way towards the ignition," Officer Macchio "intercepted the keys from his hand." At that point Officer Macchio arrested defendant for driving under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50.*fn2 As indicated both on the
summons and in the testimony of Officer Macchio this arrest occurred at approximately 10:00 p.m.
The proofs further show that approximately 10 minutes after defendant was arrested for operating his motor vehicle while under the influence of intoxicating liquor, Officer Macchio learned of Dunay's knowledge of the earlier events, at least to the extent that Dunay had observed defendant scraping his license plate on the curb. Dunay had given a statement concerning his observations to Officer McLaughlin. His testimony at trial, however, exceeded the breadth of the information contained in that statement. Apparently, the written statement did not refer to the fact that Dunay observed defendant park the second time and then "[get] out of the car and [walk] across to [him]" or that he saw defendant "staggering." At approximately 10:20 p.m., armed with knowledge of Dunay's observation of defendant's operation of the motor vehicle, Officer Macchio issued a second summons to defendant for refusing to take an alcohol breath test in violation of N.J.S.A. 39:4-50.4a.
Defendant contends that his conviction for operating his motor vehicle while under the influence of intoxicating liquor should be reversed essentially because (1) his arrest was invalid, (2) "the State failed to prove a violation of N.J.S.A. 39:4-50," and (3) "the findings of fact by the . . . Law Division are unsupported by the testimony and evidence." We have carefully
considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). Although we agree that defendant's arrest for operating a motor vehicle while under the influence of intoxicating liquor was invalid and unlawful, this did not bar his prosecution for the substantive offense. It is clear that at 10:00 p.m. when defendant was arrested the officers lacked the requisite knowledge to properly arrest defendant for a violation of N.J.S.A. 39:4-50(a). As defendant correctly contends he had not operated his motor vehicle in their presence. Our statutes governing traffic regulations require that violations thereof occur in the "presence" of the arresting officer to justify an arrest without a warrant. See N.J.S.A. 39:5-25; State v. Smith, 37 N.J. 481, 495 (1962), cert. den., 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). See also State v. Daly, 64 N.J. 122, 125 (1973). It is equally clear that the proper or better ...