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State v. Hicks

Decided: November 16, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NED M. HICKS, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Warren County.

Pressler, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

N.J.S.A. 39:4-50.2 requires the operator of a motor vehicle to give his consent to the taking of a breathalyzer examination upon arrest for driving under the influence of an intoxicating liquor (DWI), N.J.S.A. 39:4-50(a).*fn1 A provision of that statute, N.J.S.A. 39:4-50.2(c), provides:

In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection.

The issue before us is whether an individual arrested for a DWI offense, N.J.S.A. 39:4-50(a), and subjected to a breathalyzer

examination upon direction of the police is entitled to have the results of that examination suppressed when the police refuse his request to make a telephone call which might assist in obtaining the independent test permitted under N.J.S.A. 39:4-50.2(c).

Defendant was found guilty in the Mansfield Township Municipal Court of DWI. A $250 fine, $100 surcharge, and $15 court costs were imposed. Defendant was ordered to attend the alcohol countermeasures program, and his license was suspended for six months. Defendant was again found guilty on trial de novo before the Law Division, Warren County, and the same sentence was imposed.*fn2

Defendant was arrested following his involvement in a minor two-vehicle collision at approximately 11:40 p.m. on October 16, 1987. Defendant represented himself at the municipal court trial and at the outset stated the following:

Your Honor, I'd like to, I'd like to make a motion that ah, that the charge of D.W.I. be dismissed for ah, because the officer would not allow me to make a phone call, or explain to me, exactly how I could ah, ah, have a counter get my blood tested, in order that the breath analyzer be ah, disposed of. Ah now, I understand that I, there is no way that I could ah, I can't just walk into the hospital and get a blood test, I have to contact a physician, who has to order the blood test and ah, I was not allowed to contact my wife, or a lawyer, when I repeatedly asked to do so, because I don't, I'm not aware, I don't get involved with these matters. Ah, ya know, I'm a business man, and these sort of things do not, I do not get involved with these; and so I'm asking that the Court dismiss these charges, on the ground that I did not have an opportunity to exercise my constitutional rights.

The court denied defendant's motion stating:

And the Court is going to deny your motion Mr. Hicks. Ah, whether you, well you may claim anything that you wish to claim, but ah, that according to the statutes of New Jersey, anyone must submit to a breathalyzer test, and obviously I will hear testimony from the ah officers involved, as to whether you were advised of your rights, or you were not. But as far as you making a telephone call, before submitting to a test, or ...


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