This opinion, written in response to an appeal from a municipal court conviction of driving while intoxicated (DWI), addresses two issues: (1) What is a "reasonable time" within which a breathalyzer test must be performed in accordance with State v. Tischio, 107 N.J. 504 (1987)? (2) Can a drunk driving conviction be sustained when defendant is apprehended behind the wheel of a nonoperable motor vehicle? Neither question has been considered in any prior judicial decision.
This court concludes that the State had the burden of proving by clear and convincing evidence that defendant-DiFrancisco's breathalyzer test was given within a reasonable time. That proof is a necessary foundation for the admission of the test results in evidence. The State presented no proof in that connection. Consequently, the breathalyzer test results may not be considered.
It is nevertheless clear from the field observations of the arresting officer that defendant, when found behind the wheel of his vehicle, was drunk. He must, therefore, be found guilty of DWI if he was operating his vehicle at that time. The record, however, shows that his vehicle was not then operable and it cannot be said that he was "driving" while intoxicated.
On October 28, 1987, at 3:10 a.m., a Mount Laurel Township police officer found DiFrancisco slumped over in the driver's seat of a Chevrolet pickup truck. Apparently, he had passed out. His foot was on the brake, the keys were in the ignition and the engine was warm. The front end of the truck was partially in a driveway, the bed of the truck in a ditch. The officer, who observed a strong odor of alcohol on DiFrancisco's breath, had difficulty waking him, finally getting him to leave the vehicle after three requests. DiFrancisco immediately started to fall down, was caught by the officer and had to lean against the pickup to avoid falling. His feet were spread wide apart for balance. He was arrested, charged with DWI and
given two breathalyzer tests at 3:54 a.m. and 4:01 a.m. The readings were .15% and .16% respectively.
The officer testified that when he passed the ditch in question on the night of the arrest, between midnight and 12:30 a.m., the pickup truck was not in sight. He did not return to that location until the time of the arrest. Presumably, therefore, DiFrancisco had been driving the pickup sometime between midnight and 3:10 a.m. The State provided no other information as to the time of driving.
DiFrancisco, citing Tischio, argued in the municipal court, and here, that the breathalyzer tests could not be considered because they had not been obtained within a reasonable time after the driving occurred. Tischio held:
The Court added emphasis to the reasonable time requirement in responding to a defense argument that the Court's construction of the statute would encourage police officers to hold an accused in prolonged detention in the hope that higher breathalyzer readings could be obtained. After noting the doubtful authority for such extended detention, it said: "Moreover, we now hold that breathalyzer tests must be taken 'within a reasonable time' after the arrest." Id. at 521.
In Romano v. Kimmelman, 96 N.J. 66 (1984), the Supreme Court found that breathalyzers were "scientifically reliable and accurate devices for determining the concentration of blood alcohol. Such scientific reliability shall be the subject of judicial notice in the trial of all cases under N.J.S.A. 39:4-50." Id. at 82. It continued, however, to say:
In addition, we hold that the results of a breathalyzer test shall be generally admissible in evidence when the breathalyzer instrument is in proper working order, is administered by a qualified operator and is used in accordance with accepted ...