On appeal from the Superior Court, Law Division, Atlantic County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
Defendant, Prosper A. Colasurdo, was charged with driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50 after being subjected to two breathalyzer tests, both of which indicated a .30% blood alcohol content.
At a hearing before the Somers Point Municipal Judge the prosecution moved for an adjournment because it could not find a videotape made of the defendant while he was performing physical agility tests at the police station shortly after his arrest. The judge denied this motion but gave the prosecution
ten days to produce the missing videotape. Defendant's motion to dismiss the complaint for failure to produce the videotape was also denied, although the court subsequently declared a mistrial because of a mix-up concerning inspection certificates for the breathalyzer machine.
When the matter was rescheduled the parties stipulated that the videotape was unavailable and defendant made another motion to dismiss which was granted. On appeal to the Law Division, the dismissal was reversed and the matter remanded to the Municipal Court for trial.
At trial defendant made a third motion to dismiss for failure to produce the videotape which was denied. Thereafter, defendant entered a guilty plea to the drunk driving charge but reserved the right to appeal the question of the missing videotape.*fn1 A fine of $250 was imposed with costs of $15 and defendant's driving privileges were revoked for nine months. On defendant's appeal to the Law Division, the court dismissed the complaint against defendant on the basis of the missing videotape. The State appeals the order dismissing the complaint.
While driving on patrol Somers Point Patrolman Byron encountered a vehicle driven by the defendant coming directly at him in the wrong lane of travel. The officer drove his vehicle onto the shoulder to avoid a head-on collision and made a U-turn to pursue the vehicle. During the pursuit, defendant's vehicle crossed over the center dividing line several times into the opposite lane of traffic, nearly striking a railing on the opposite side of the roadway while it was crossing a bridge. The officer turned on the patrol car's red lights and siren and defendant's vehicle stopped about 500 yards past the bridge.
The officer knocked on the car window. Defendant opened the door, tried to get out and fell to the ground. The officer picked up the defendant, who was only able to produce his driver's license. The officer testified to his observations of defendant at the arrest scene:
As he spoke, there was an odor . . . a strong odor of an alcoholic beverage on his breath. He spoke slow, slurred; and at points, he was incoherent. He kept rambling, slobbering. When he stood, his feet were wide apart. At points, he had to lean on me from falling over or he leaned on his vehicle.
The officer attempted to have defendant perform balance tests but defendant kept falling over and the officer had to catch him to prevent him from hitting the ground. Defendant was ...