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State v. Ettore

Decided: June 14, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOLORES J. ETTORE, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Atlantic County

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

Gaynor

Defendant was convicted in the Galloway Township Municipal Court of driving while intoxicated in violation of N.J.S.A. 39:4-50, and as a second offender, was sentenced to a fine of $500, costs of $15, a two-year revocation of her license, a surcharge of $100, thirty days of community service and two days in jail or in-patient I.D.R.C. On appeal to the Law Division and following a trial de novo on the record, defendant was again found guilty of the offense and the same sentence was imposed.

In challenging this conviction, defendant advances the following appellate contentions:

I. DEFENDANT WAS IMPERMISSIBLY THWARTED IN HER ATTEMPT TO EXERCISE HER STATUTORY RIGHT TO AN INDEPENDENT BLOOD TEST AS PROVIDED BY N.J.S.A. 39:4-50.2(c) AND DUE PROCESS OF LAW PURSUANT TO THE N.J. & U.S. CONSTITUTIONS.

II. DEFENDANT'S BREATH TEST RESULTS WERE IMPROPERLY ADMITTED.

III. WITHOUT THE BREATH TEST RESULTS THE OTHER EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION.

IV. THE SUPERIOR COURT, LAW DIVISION, SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL SINCE THERE WAS EVIDENCE, THAT IMPUGNED THE CREDIBILITY OF THE STATE'S KEY WITNESS.

On January 25, 1986 at approximately 5:00 a.m., defendant's vehicle was observed by a State Trooper weaving from the slow to the fast west bound lane of U.S. Route 30 in Galloway Township and at one point crossing over into the east bound lane. The vehicle was stopped and, upon being informed of the reason for the stop, defendant volunteered that she had had three or four glasses of wine at dinner and over the course of the evening. Defendant was asked to exit the vehicle and upon doing so was noted by the trooper to be unsteady on her feet. She needed to lean on the car for support while standing, as well as while walking back to the rear of the car. After failing to properly perform balance tests, defendant was arrested and transported to the Absecon State Police Station where breathalyzer tests were administered. The tests disclosed blood alcohol levels of 0.14% and 0.15%. It was then about 6:00 a.m.

While at the station, defendant repeatedly demanded an independent blood test. Following the completion of the breath tests, defendant telephoned her attorney requesting that he come and take her to where a blood test could be conducted. Being unable to do so, the attorney spoke with the trooper and asked if he (the trooper) could take defendant to a hospital for that purpose. Upon being told that providing such transportation was not permitted, the attorney asked if a taxi could be called. He was told that it was against State Police policy to permit intoxicated persons to leave by taxi unaccompanied by a responsible escort. After phoning her attorney several more times, defendant telephoned her son who picked her up at about 8:30 a.m. and drove her to the West Jersey Hospital. Defendant arrived at the emergency room of the hospital at 9:30 a.m. but was unable to have her blood tested. The hospital records indicate that defendant's request was refused as there was "no medical reason" for the requested testing.

In affirming defendant's conviction entered in the municipal court, Judge Neustadter rejected the ...


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