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State v. Samarel

Decided: March 10, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH M. SAMAREL, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

King, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.

Brody

[231 NJSuper Page 136] After trying the matter de novo on the record made in a municipal court, the Law Division found defendant guilty of

having a blood alcohol concentration of .10% or more by weight of alcohol in his blood while operating a motor vehicle (DWI).*fn1 N.J.S.A. 39:4-50(a). We stayed the sanctions imposed pending this appeal.

At about 2:30 a.m., Christmas 1985, defendant, then 17 years old, failed to negotiate a curve and drove his car off the road. The car tumbled down a slope and landed on its roof in a field. Defendant's girlfriend, one of his four passengers, was seriously injured in the accident. She was still in a coma at the time of the municipal court trial more than a year and a half later.

When the police first arrived at the scene, defendant told an officer that the accident occurred when he lost control of his car while it was travelling 65 miles an hour. Defendant and the passengers were transported to a hospital where defendant received out-patient treatment and was then released to an officer who drove him to headquarters to administer a breathalyzer test. Defendant had refused the officer's request to have his blood tested at the hospital.

Defendant waived his Miranda rights at 5:40 a.m., soon after he arrived at headquarters. The officer thereafter asked him the usual preliminary questions before administering a breathalyzer test. In the course of answering those questions, defendant admitted that he had consumed "five shots" of Southern Comfort at a friend's house from 10:30 p.m. earlier that night until 12:15 a.m. The officer administered the test twice, using a Draeger breathalyzer. Both tests, one administered at 5:51 a.m. and the other at 6:00 a.m., produced a reading of .10% blood alcohol.

At first defendant was charged with juvenile delinquency for committing what would otherwise have been a fourth-degree

assault by auto upon his girlfriend. N.J.S.A. 2C:12-1c. The elements of the offense are "recklessly" driving a vehicle so as to cause another "serious bodily injury." On July 1, 1986, a family part judge signed an order "that the case be dismissed with prejudice." The order does not recite any reasons for its entry. Defendant has not presented us with a transcript of proceedings that might shed light on the matter and he offers no explanation for why the order was entered. When the Law Division judge asked defendant's present attorney, who did not represent defendant in the family part, what he knew of the matter he replied:

Why Judge to this very minute, I don't know why that dismissal took place. I've reviewed this file thoroughly.

When the judge then asked for a transcript of the family part proceedings, defendant's attorney responded:

[DEFENDANT'S ATTORNEY]: Judge, we have never obtained ...


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