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State v. Mulcahy

Decided: June 30, 1987.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 202 N.J. Super. 398 (1985).

For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern and Garibaldi. For reversal in part and affirmance in part -- Justice Clifford. The opinion of the Court was delivered by O'Hern, J. Clifford, J., dissenting.


This case concerns the point at which an actor's conduct ripens into the operation of a motor vehicle sufficient to require submission to a breathalyzer test for suspected intoxication. The circumstances here will rarely, if ever, be repeated. The question put to the municipal court, in a hypothetical form, was whether police officers, who see someone who is drunk stagger out of a tavern into a car that is illegally parked on a sidewalk, have to wait until the driver turns the ignition key before making the arrest that under N.J.S.A. 39:4-50.4a is predicate to requiring the driver to submit to the breathalyzer test. We think not and therefore reinstate the judgment of conviction for refusal to submit to the breath test.

The hypothetical posture of this case arises from an apparent desire on the part of the defendant not to have the details of his insobriety elaborated in the minutes of the local municipal court proceedings. Posing the question as a hypothetical was apparently intended to avoid any exaggerated description of the symptoms of insobriety. With a stipulation that we shall detail later, the defendant made a tactical choice at trial to base his defense entirely upon two propositions of law: (1) no matter how obvious the evidence of insobriety, the police could not arrest for the motor vehicle violation until the engine had been started, and (2) any proceedings that followed such an illegal arrest, including the gathering of statements from witnesses, would be tainted by the illegality of the arrest and would preclude prosecution for drunken driving.


Some unfairness to the defendant will ensue if the reader does not keep in mind that the following chronology of events is

based upon the hypothetical posture of the case that we previously noted. Just as in a motion for summary judgment by a defendant, we must here consider the facts in a light most favorable to the State.

Assuming the facts most favorable to the State, at about 9:45 p.m. on October 7, 1983, two police officers saw an inebriated patron stagger out of Bondy's Tavern in Cresskill, toward a car that was illegally parked on the sidewalk in front of the tavern. One officer approached the car. As the man who was then seated in the car started to put the keys in the ignition, the officer reached in through an open window and took the keys out of the driver's hands. The officer placed the driver under arrest, and told him that he would have to submit to the breathalyzer test required under N.J.S.A. 39:4-50.4a.

Approximately ten minutes after the arrest, the officer learned that a fifteen-year-old youth had seen the suspect operating the car before the suspect entered the tavern. The young man went to the police headquarters with his father, and at about 10:45 p.m. the youth gave a statement to the police. As a result of the information contained in that statement and both officers' observations, the arresting officer made out two summonses, charging the defendant with operating a motor vehicle while under the influence in violation of N.J.S.A. 39:4-50(a) and with failure to submit to a breathalyzer test as required by N.J.S.A. 39:4-50.4a.

At the municipal court trial, the young man took the stand first. His in-court statement was somewhat more detailed than his original statement. He said that he had first seen the defendant at about 7:30 p.m. when he was in the vicinity of Bondy's Tavern. He said that he was standing between Bondy's and Jolly Nick's, another local establishment. From there, he saw the defendant attempt to pull his car into the driveway by Bondy's, miss the driveway, go up on the curb, and scrape his license plate on the curb. When asked if he observed anything else unusual about the operation of the car at that

time, the youth said "only except when he pulled out * * * he pulled off the license plate half way and it was hanging on by one screw."

The young man testified that he next saw defendant in front of Jolly Nick's at about 9:30 p.m. He testified that from a vantage point in the park across the street from Jolly Nick's, he saw defendant pull up on the sidewalk in front of the tavern.*fn1

The State next called the arresting officer. He testified that he had had five years experience on the force, and special training in the recognition of intoxication. At that point the defense objected to further questioning on the subject of intoxication and addressed the court with respect to a stipulation that it had made with the municipal prosecutor. Defense counsel indicated to the court that for purposes of the hearing, the defendant would contest only the issue of operation. He would waive any defense to all other elements necessary to the State's case. The court inquired:

Now are we stipulating that, assuming the legal arguments are not successful, after the arrest that all elements relevant to driving under the influence and refusal of the breath test will not have to be proved, will be stipulated to? Is that what we're doing?

Counsel agreed that except for the issue of operation in the presence of the police officer, all issues were waived, and that on the arrest question his only argument went to presence.*fn2

Understandably concerned, the municipal judge suggested a recess so that the parties could make a very clear statement of the stipulation so that he would know exactly what was being stipulated. The prosecutor and defense attorney then agreed

on the language of a written stipulation, which was expressed to the court in the following terms:

[A]ll elements necessary to establish a prima facie case by the State are conceded and stipulated to by the defendant other than operation. The defendant will waive the necessity of the State proving other than operation to the extent that the State must prove items such as identity, condition and alcoholic influence.

In addition, the stipulation conceded the presence of probable cause to require that defendant take the breath test if he were found to be operating in the officer's presence.

Counsel for the defendant made it clear to the court that he was basing his entire defense on that line of cases that deals with the movement and operation of motor vehicles in such circumstances, referring specifically to State v. Sweeney, 40 N.J. 359 (1963), and State v. Daly, 64 N.J. 122 (1973). In the event that he won on the unlawful arrest issue, counsel preserved the right to request the court to dismiss the entire case.

Still concerned, the municipal court said:

The point that I want to clarify on the record -- that assuming, depending upon my decision and depending upon your decision this appeal is necessary, that this matter will not then come back to the Court concerning whether or not there was influence -- alcoholic influence under this --

Counsel: It will not.

THE COURT: Okay. That's clear. Thank you very much.

With that stipulation of facts, the trial court then focused entirely on the aspects of the defendant's conduct that dealt with his attempt to operate the car. As the police officer described it, he saw the defendant approach his car, get into the car, seat himself behind the wheel, take out his keys, and start to put the keys in the ignition. As noted, at that point the officer reached in the car window and took the keys out of defendant's hand. The engine was off. It had not been started. The vehicle was still parked on the sidewalk in front of Jolly Nick's. The officer was quite direct in stating that he had no knowledge of any operation of the car by the defendant prior to the time that he made the arrest. He did not learn about the young witness until after the arrest and thus had no independent basis for determining that the defendant had operated

the vehicle at any time prior to the moment when he started to turn the key in the ignition.

So the question comes down to this: is an attempt by a drunk person to place the keys in the ignition and start the car, operation within the meaning of N.J.S.A. 39:4-50.4a sufficient to warrant the operator's submission to a breathalyzer test. The municipal court did not decide the question directly. It defined the issue as one of probable cause, asking whether the arresting officer had reasonable grounds to believe the defendant had violated the statute. The court held that the car parked on the sidewalk and observed by the officer raised the inference of defendant's prior operation of the vehicle while intoxicated and established probable cause. Further, the court noted that the circumstances observed by the officer showed that defendant intended to resume operation while intoxicated, compelling the officer to seize defendant's keys in the interest of public safety. The municipal court convicted the defendant of both counts in accordance with the stipulation.

On the appeal de novo, the Law Division affirmed the municipal court. It read N.J.S.A. 39:4-50 to require "that at least the motor * * * be running, so that the car can be put into gear and moved." It therefore concluded that the defendant did not operate the vehicle in the presence of the officer within the meaning of N.J.S.A. 39:4-50. Instead, the Law Division relied on the officer's duty to protect the public safety as the grounds for the arrest.

The Appellate Division, however, disagreed that defendant's arrest was valid and it reversed the defendant's conviction for refusing to submit to a breathalyzer test. 202 N.J. Super. 398, 409 (1985). The court held that because the defendant did not operate the vehicle in the presence of the officer, the officer lacked the requisite knowledge to make a legal arrest of the defendant at the time the arrest was made. In the court's view, in the absence of a valid arrest, the officer lacked the statutory basis to request that defendant submit to testing.

Nonetheless, it upheld the conviction for drunk driving under N.J.S.A. 39:4-50 on the theory that an invalid arrest is neither a bar to subsequent prosecution nor a defense to a valid conviction where due process requirements were satisfied. The court concluded here that defendant was fairly apprised of the charges against him and that the trial was ...

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