On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Furman, Long and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
The issue in this matter is whether the State must produce evidence establishing that the owner of a vehicle knew or reasonably should have known that he or she had permitted another person to operate a motor vehicle while under the influence of liquor or drugs or with a blood alcohol concentration of .10% or more in violation of N.J.S.A. 39:4-50(a). We answer in the affirmative.
Appellant, Thomas F. Skillman, Jr., was convicted in the Bernardsville Municipal Court of allowing one Sandra J. Conklin to operate his motor vehicle as an unlicensed driver in violation of N.J.S.A. 39:3-39b and permitting her to operate it while intoxicated as evidenced by a breathalyzer blood alcohol reading of .10% or more in violation of N.J.S.A. 39:4-50(a). On appeal to the Superior Court, Law Division pursuant to R. 3:23-8, he was again convicted of having violated those statutes.
Although this appeal has been prosecuted from both convictions, that portion directed to the conviction of allowing an unlicensed person to operate the vehicle is clearly without merit and we affirm the lower court on that issue. R. 2:11-3(e)(2). However, the remaining conviction is vacated for the reasons hereinafter set forth.
At the trial in the municipal court, the State introduced evidence to establish that on June 19, 1985 at approximately 12:53 a.m., police officer Joseph DeGregorio responded to a call and observed a motor vehicle being driven by Sandra J. Conklin. The defendant and Vincent Mercurio were passengers. The
vehicle was stopped on the basis of the officer's prior knowledge that Conklin did not have a valid driver's license. By that time defendant had positioned himself in the driver's seat. Because the defendant and Conklin denied switching positions they were taken to police headquarters where DeGregorio noticed an odor of alcohol on Conklin's breath, that her eyes were bloodshot and her speech was slurred. Accordingly, she was subjected to a series of physical coordination tests which she performed satisfactorily except for one test, and two breathalyzer tests at 1:53 a.m. and 2:00 a.m. respectively which registered .11% blood alcohol readings.
Defendant's motion for a dismissal of the charges at the end of the State's case was denied. Defendant and Gerry Pitman, at whose house defendant and Conklin had been before the incident testified that Conklin had imbibed some two or three seven ounce beers but her behavior did not appear to be abnormal and that there was no reason to suspect that Conklin's ability to drive was impaired in any respect.
The municipal court judge reserved decision and issued a letter opinion. He concluded that Conklin was guilty of operating a vehicle in violation of N.J.S.A. 39:4-50 solely because her blood alcohol reading was more than .10%. Then he said,
I turn now to the decision on the cases brought against Thomas F. Skillman, Jr. I do not believe that the standard of responsibility that is imposed against someone like Mr. Skillman who allows an intoxicated driver to operate his vehicle is different than the standard which is to be applied in sustaining the burden of proof by a police officer in the case where the operator is charged. Thomas Skillman in my opinion allowed Sandra Conklin to knowingly operate his motor vehicle inasmuch as he was in the car with her and since it has now been determined that Sandra Conklin was in fact under the influence of alcohol. I do hereby find the defendant Thomas F. Skillman guilty of 39:4-50, allowing Sandra Conklin to operate his motor vehicle knowingly while she was intoxicated. I do not believe that this defendant can get out from under the clear admonition and prohibition of the statute by simply saying that based upon his observations he didn't think that she was that drunk. The effect of the breathalyzer test, properly administered to Sandra Conklin, which formulates the essential basis for the conviction of her becomes the basis for the conviction upon what I assume to be a first offense.
In other words, defendant's conviction for permitting Conklin to operate the vehicle while impaired was ...