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State v. Mercer

Decided: June 30, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES MERCER, DEFENDANT-APPELLANT



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

Brody, Gaynor and Baime. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

Defendant was convicted of driving while intoxicated following a trial de novo on his appeal from a conviction in the municipal court. On appeal from the conviction in the Law Division, he contends the court erred in admitting the results of a blood test, showing a blood alcohol content of .185%, because of the failure of the investigating officer to advise him of his "right" to have a similar test conducted by his own expert. He further asserts a due process violation resulted from the disposal of the blood sample after the testing had been completed. We disagree and affirm.

Following a two-car collision, defendant, the driver of one of the vehicles, was transported to the local hospital for treatment of his injuries. Shortly after his arrival he was questioned by the investigating officer and then placed under arrest for drunk driving. After obtaining defendant's signed consent, the officer arranged to have a sample of defendant's blood taken and transported to the laboratory for analysis. Concededly, the consent form did not contain any reference to defendant's entitlement to a testing of the blood by his own expert, nor was he so informed by the officer. After the testing was completed at the laboratory, the blood sample was discarded.

In addition to the stipulated test result disclosing the blood alcohol content, the trial evidence also included the officer's testimony that, while questioning defendant at the hospital, he had detected a strong odor of alcohol emanating from defendant's breath and had observed that defendant's eyes were bloodshot and his speech was slurred. The officer also testified that defendant had admitted to having consumed a bottle of wine during the evening. The driver of the other vehicle, while stating he had not sensed any odor of alcohol about defendant,

noted that following the accident defendant was not very coherent in his actions.

Defendant contends the failure of the officer to advise him that he might conduct an independent testing of the blood sample violated the rights accorded him under N.J.S.A. 39:4-50.2 and denied him the application of that statute. He further asserts the subsequent disposal of the blood sample left him with no meaningful way to defend himself. Assertedly, these actions warranted a dismissal of the complaint or the suppression of the test results.

N.J.S.A. 39:4-50.2 provides in pertinent part:

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; . . .

(c) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

(d) The police officer shall inform the person tested of his rights under subsections (b) and (c) of this section.

We do not agree with defendant's basic premise that this statute governs the taking of a blood sample. By its express terms, the statute is limited to the taking of samples of breath and the procedures to be followed by the police in chemically testing such samples to determine ...


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