[219 NJSuper Page 122] On October 10, 1986 defendant Todd H. Perkins allegedly drove his car into a parked vehicle, struck a telephone pole, spun around, and turned over. He was injured. A police officer, arriving on the scene after the accident occurred, smelled a "moderate odor" of alcohol on Perkins' breath and charged him with drunk driving in violation of N.J.S.A. 39:4-50. The officer sent Perkins to a hospital where he received treatment and was given a blood-alcohol test.
Defense counsel, having entered a not-guilty plea on behalf of Perkins on November 10, 1986, appeared with him in the Cinnaminson Township Municipal Court on December 4, 1986, ready to proceed with trial. The State was not ready and requested a continuance. It had failed to obtain the hospital report and subpoena Dr. Chow, the chemist whose testimony was needed in order to prove the results of the blood test. Defense counsel objected and moved for a dismissal of the complaint. He noted that he had not been advised of the State's dereliction until that moment, had not been asked to consent to a continuance, and was ready to proceed. He cited State v. Paris, 214 N.J. Super. 220 (Law Div.1986), in support of the motion. The municipal court judge, finding Paris inapplicable because it dealt with a discovery problem, denied the defense motion and granted a continuance to January 8, 1987. He also directed the municipal prosecutor to make arrangements with the court clerk so that she could subpoena the missing witness for the second hearing. The following colloquy then took place:
Mr. Ferg: Judge, can I ask that January 8th be a date certain?
Mr. Ferg: Okay, and so if the case is not prepared to be moved at that time the defense will be entitled to a dismissal?
(To the Prosecutor): . . . But let us know by tomorrow if that's not a date. . . . If you have some problem with it, I want to know now instead of facing the problem on January 8th and have Mr. Ferg make a motion to dismiss.
Defendant and his counsel appeared on January 8, 1987, ready to proceed. Again, the State was not ready; Dr. Chow had not been subpoenaed, apparently as a result of the court clerk's illness. The State was represented by a newly-appointed prosecutor who said he became aware of the court's list that evening although he had received it in the mail earlier that week. He requested a further continuance. Defense counsel objected and moved for dismissal, stressing the day-certain-dismissal promise. The Court said:
. . . generally the subpoenaing of the State's witnesses is handled by the Court's offices. We are all human and errors do take place. The doctor was not subpoenaed by the Court's offices, and for that reason is not here tonight, because he doesn't know to be here tonight. The State, I feel, would be prejudiced by the Court's mistake, and I don't think that's fair nor is it fair to prejudice the defendant because of the Court's mistake. You have to balance those equities here.
It denied the dismissal ...