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In re Disciplinary Procedures Against Phillips

Decided: February 6, 1990.

IN RE DISCIPLINARY PROCEDURES OF ALFRED P. PHILLIPS, CHIEF OF POLICE, RARITAN TOWNSHIP, HUNTERDON COUNTY, NEW JERSEY


For affirmance in part and reversal in part -- Chief Justice Wilentz and Justices Handler, O'Hern, and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J. Justices Clifford and Pollock did not participate.

Garibaldi

I

This appeal involves disciplinary charges brought by the Township of Raritan against its Chief of Police, Alfred P. Phillips. The charges stem from Phillips' involvement in a 1985 automobile accident in which the Township alleges that he was driving while under the influence of alcohol. As a result of that incident, the Township Committee found Phillips guilty of three disciplinary infractions and demoted him in rank from Chief of Police to patrolman.

While Phillips' appeal of the Township Committee's disciplinary action was pending, the municipal court acquitted him of the statutory offense of driving while intoxicated, N.J.S.A.

39:4-50 (DWI). Subsequently, the law division, in a trial de novo, vacated the Township Committee's findings on two of the three disciplinary infractions but affirmed Phillips' conviction of violating police department regulations because of his intoxication.

On appeal, the Appellate Division dismissed all charges against Phillips, reasoning that the departmental rule prohibitions against intoxication were inseparably linked to the statutory drunk-driving charge. The primary issue before us is whether an administrative finding that a defendant has not violated N.J.S.A. 39:4-50 precludes a finding of intoxication in violation of police department rules in the same administrative proceeding. We also consider the scope of a trial court's review of disciplinary convictions pursuant to N.J.S.A. 40A:14-150.

II

On December 10, 1985, Phillips took a personal day and travelled to Pennsylvania in an unmarked police car owned by the Township. Returning to Raritan that afternoon, he drove to an inn in Ringoes at approximately 5:30 p.m. A bartender testified that he had served Phillips three drinks, each containing one and one-half ounces of eighty proof vodka. Phillips consumed two drinks within fifteen minutes and then lingered over the third until approximately 7:00 p.m. He did not eat. The bartender testified that Phillips was not under the influence of alcohol when he left the premises.

Phillips' accident occurred at approximately 7:15 p.m. on County Route 579 when he swerved to avoid a deer in the roadway and struck it with the vehicle's right bumper. He traveled 125 feet off the roadway and demolished a cement mailbox pillar before coming to a sudden stop. Phillips suffered serious injuries including a contusion of the heart, a fractured rib, and a severe gash across the forehead.

A passerby found Phillips unconscious in his car and immediately called for assistance. Two fellow officers arrived shortly

thereafter. They did not administer a breathalyzer test. Rescue workers later arrived and transported Phillips to Hunterdon Medical Center. The police officer and the rescue workers testified that they had not smelled alcohol on Phillips' breath.

When he arrived at the hospital, Phillips "jumped" from the stretcher, walked into the emergency room, and announced that he wished to go home. He was eventually treated by two doctors and a nurse on duty, all of whom testified that they had smelled alcohol on Phillips' breath. Concerned about the effect of Phillips' concussion combined with the alcohol in his bloodstream, the doctors requested a blood sample. Phillips refused. He later admitted that he had refused the test because he had been drinking. A blood sample was not extracted until 11:30 p.m.

The sample was tested on a Cobas bio computer. The alcohol concentration was the equivalent of .129-.131, which was later extrapolated to show a .17-.19 concentration at the time of the accident. Four months later, the state police tested that blood sample using a gas-chromotography test. That test revealed no detectable level of alcohol in Phillips' blood.

On learning of the incident, the Township's mayor asked the Hunterdon County Prosecutor's Office to assist in an investigation. In January 1986, the Township issued a summons charging Phillips with driving while intoxicated, in violation of N.J.S.A. 39:4-50. At that time, Phillips requested a thirty-day sick leave to undergo alcohol-rehabilitation treatment.

After considering the D.W.I. charge, the Township Committee determined that Phillips should be suspended. In February 1986 the Township Committee met again and decided to file a four-count complaint against Phillips. The complaint charged Phillips with: (1) operating a vehicle under the influence of alcohol, in violation of N.J.S.A. 39:4-50; (2) using a Township vehicle in violation of established Township policy; (3) as a result of his intoxication, violating the rules and regulations of the police department by engaging in conduct contrary to "good

order and discipline" that reflected "unfavorably on the courage and resourcefulness" of the department; and (4) as a result of his intoxication, violating the rules and regulations of the police department by being under the influence of an "alcoholic liquor."

At the Township Committee hearings, Phillips presented testimony challenging the blood test performed at the Hospital. Based on his weight, the amount of alcohol he had consumed, and the time span of that consumption, Phillips' first expert claimed that Phillips' blood-alcohol level could not have exceeded .03-.04 at the time of the accident. The expert offered further testimony on the circulating level of alcohol that an alcoholic must maintain in order to avoid withdrawal symptoms. Significantly, the expert explained that the average residual blood alcohol concentration in alcoholics ranges from .06 to .08, and higher. He estimated that if a person had a preexisting level of alcohol in his bloodstream and then drank three-and-one-half ounces of vodka in one-and-one-half hours, his blood alcohol level ...


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