On certification to the Superior Court, Appellate Division, whose opinion is reported at 354 N.J. Super. 432 (2002).
This appeal concerns the statutory right of a defendant to an independent blood-alcohol test after being arrested for driving while intoxicated (DWI).
In the early morning of February 17, 1998, the Parsippany-Troy Hills police apprehended defendant, John P. Greeley, on Route 80. Greeley had attended a party earlier that evening and was on his way back home to Brooklyn. Suspecting that Greeley was under the influence of alcohol, the police placed him under arrest and transported him to the police station where two breathalyzer tests were administered. Each test indicated a bloodalcohol concentration (BAC) of 0.12%, in violation of N.J.S.A. 39:4-50, which prohibits operation of a motor vehicle by a person with a BAC of 0.10 %.
The proceedings at the police station were videotaped, but the tape was lost. Greeley moved to suppress the breathalyzer results on the grounds of destruction of evidence. The trial court denied the motion; however, in order to prevent prejudice to Greeley from the loss of evidence, it accepted his version of the events. The Appellate Division also accepted Greeley's version of events and affirmed the trial court's denial of suppression on the grounds of destruction of evidence. This Court likewise will rely on Greeley's account of the station-house proceedings.
According to Greeley, after being informed that his BAC was in excess of the legal limit, he asked that another test be performed. Although the police refused that request, they did inform Greeley that under N.J.S.A. 39:4-50.2(c), he had the right to have an independent test performed at his own expense. They advised him that the test could be performed by a doctor or local hospital, but also told him that he could only be released into the custody of a friend or relative. Otherwise, he had to remain at the station until he was sober enough to drive.
Greeley was given access to a telephone from which he made three unsuccessful attempts to reach a friend or relative who might have assisted him. Greeley explained that because he was from out of state, he knew no one in the area who could provide transportation. He asked how he might otherwise be able to arrange for the independent blood-alcohol test, but police did not provide any other options. Greeley was escorted to a holding cell. Approximately four hours later, police deemed Greeley sober enough to drive and released him on his own recognizance.
Greeley moved before the Parsippany Municipal Court to suppress the breathalyzer results on the ground that the police violated his statutory right to an independent blood-alcohol test. The court denied his motion and Greeley entered into a plea of guilty, reserving the right to appeal the denial of his motion to suppress. At a trial de novo in the Law Division, Greeley's motion to suppress was denied and he was found guilty of DWI. On appeal, the Appellate Division reversed the denial of the motion to suppress, vacated the conviction, and remanded for a new trial. State v. Greeley, 354 N.J. Super. 432 (2002).
The Appellate Division found the police department's policy of releasing DWI arrestees only to a friend or relative to be "entirely arbitrary." The court held that the police should have done more to effectuate Greeley's statutory right to an independent test than simply present him with the choice of being released to a relative or friend.
This Court granted the State's petition for certification.
The police department's policy of refusing to release an intoxicated person except to the care of a relative or friend does not impermissibly encroach on that person's statutory right to an independent test of his or her blood alcohol level.
1. Under N.J.S.A. 39:4-50.2, a person whose blood-alcohol level is tested by police is permitted to have a test conducted by a person or physician of his own choosing. Beyond the need to inform a person that he or she is permitted to have an independent test performed, the statute sets forth no other affirmative duties on the part of police. Nevertheless, the Appellate Division has instructed in a series of reported opinions that police may not thwart the right to an independent test through arbitrary actions or policies that otherwise would render the statutory right meaningless. The following principles emerge from those cases. A policy of releasing a DWI arrestee only to a responsible person is reasonable in light of the risks posed by an intoxicated person to himself and the public. Police conduct will warrant suppression of BAC test results only if that conduct affirmatively interferes with or thwarts a defendant's good-faith attempt to obtain an independent test. (pp. 5-8)
2. This Appellate Division panel concluded that the policy of releasing an intoxicated person only to a friend or relative was arbitrary on the facts of this case. The panel found it significant that Greeley, who was from New York, had no family or friends in the vicinity. This ruling misreads prior case law and is inconsistent with the legislative intent underpinning N.J.S.A. 39:4-50.2. Reading the statute in conjunction with N.J.S.A. 59:5-6, respecting release by the police of intoxicated persons, compels the conclusion that the Legislature did not intend to confer an absolute right of release upon DWI arrestees. N.J.S.A. 59:5-6 provides immunity to police officers for injuries sustained by a driver arrested on DWI charges subsequent to release, but only if the person is released "in a position of relative safety and refuge." Reading the two statutes together, the Court finds that the Legislature has manifested an overarching concern regarding the release of intoxicated persons and has chosen to limit the circumstances in which police properly may release such persons. The policy of releasing an intoxicated DWI arrestee only to a responsible friend or relative provides a reasonable opportunity to secure an independent BAC test. If an arrestee fails in an attempt to arrange for an escort by a friend or relative, police do not violate his rights by detaining him until he becomes sober enough to no longer present a danger to himself or others. (pp. 8-16)
3. The Appellate Division also suggested that Greeley's reservation of the right to appeal the suppression issue while pleading guilty was unnecessary to preserve his right to appeal. This observation is only partly correct. Only motions for suppression of an unlawful search and seizure automatically survive the entry of a guilty plea. Greeley's motion for suppression was not based on a claim of an unlawful search or seizure. The parties therefore followed the proper procedure in having Greeley enter a conditional plea. The issue is noted in passing to prevent any misplaced reliance on the dicta of the decision below. (pp. 16-17)
Judgment of the Appellate Division is REVERSED, and the DWI conviction is REINSTATED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, and ALBIN join in JUSTICE ZAZZALI's opinion. JUSTICE WALLACE did not participate.
The opinion of the court was delivered by: Justice Zazzali
Argued September 22, 2003
This appeal concerns the right of a defendant, pursuant to N.J.S.A. 39:4-50.2(c), to an independent blood-alcohol test after being arrested for driving while intoxicated (DWI). Specifically, we must decide whether the police violate that right by refusing to release, except to the care of a relative or friend, a defendant whose station-house test reveals a blood alcohol level in excess of the legal limit. In vacating defendant's conviction, the Appellate Division determined that the police, in enforcing that policy, violated defendant's statutory right to an independent test. State v. Greeley, 354 N.J. Super. 432, 441 (2002). Because we find that neither the policy at issue here nor its administration in the circumstances of this case impermissibly ...