cdTOCtest

in issue by virtue of defendant’s failure to move to
suppress.

K. Driving While intoxicated

1. Operating a Vehicle/Vessel While Intoxicated

State v. Bryant, 328 N.J. Super. 379 (App. Div.
2000), affirmed defendant’s driving under the influence
conviction. Although the trial judge determined that the
municipal court had improperly denied defendant’s
motion to suppress the Breathalyzer evidence, the judge
correctly considered defendant’s testimony given after
the improper denial. Even if suppression had been
granted at the municipal court level, the State still could
have proceeded on the driving under the influence charge
by utilizing evidence other than the breath test results -

• his erratic driving, smell of alcohol, difficulty walking,
  uncoordinated movements, and refusal to perform field
  sobriety tests. Defendant’s decision to testify in
  municipal court after his suppression motion was denied
  was similar to most tactical decisions the accused must
  make with the assistance of their attorneys.

According to State v. Garbin, 325 N.J. Super. 521
(App. Div. 1999), certif. denied 164 N.J. 560 (2000),
defendant can be convicted for operating while under the
influence of alcohol while the vehicle is in the garage of a
private residence.

In State v. Liberatore, 293 N.J. Super. 535 (App. Div.
1996), the Appellate Division found that independent of
Breathalyzer results, an alternative finding of intoxication
may be based upon observational evidence to find a
defendant guilty beyond a reasonable doubt of DWI. See,
State v. Slinger, 281 N.J. Super. 538, 543 (App. Div.
1995), citing State v. Sisti, 209 N.J. Super. 148, 151
(App. Div. 1986).

In State v. Morris, 262 N.J. Super. 413 (App. Div.
1993), the evidence was sufficient to show that defendant
was under the influence of alcohol. The Appellate
Division was satisfied that the State proved that
defendant was intoxicated under the principles
delineated in State v. Tamburro, 68 N.J. 414, relying on
the language of under the influence used in the statute to
mean a substantial deterioration or diminution of the
mental faculties or physical capabilities of a person
whether it be due to intoxicating liquor, narcotic,
hallucinogenic or habit-producing drugs. Finally, the
court noted the observations made of the defendant by
the arresting officers that defendant’s speech as being
slurred when he initially contacted the police over the

phone, that the defendant was loud and abrasive. and the

officer observed defendant to be dishevelled, and

detected a strong odor of alcohol on his breath, as well as

observations that defendant was very agitated, very

wobbly and yelling and screaming, as well as having

ruffled clothing, red and bloodshot eyes and slurred

speech. Defendant’s judgment and control, as it related

to the operation of a motor vehicle, was materially

affected, since his judgment and control over his own

actions had all but disappeared.

2. Allowing Another to Operate a Vehicle/Vessel
   While Intoxicated

State v. Michalek, 207 N.J. Super. 340 (Law Div.

1985), held that a defendant could not be convicted of

the DWI offense of allowing another to operate a motor

vehicle while intoxicated, in the absence of proof that the

defendant knew, or reasonably should have known that

the operator was intoxicated or had a blood alcohol level

of 0.10% or more.

Relying in part on the holding in Michalek, the

Appellate Division in State v. Skillman, 226 N.J. Super.

193 (App. Div. 1988) reversed a conviction for allowing

another to operate a vehicle while intoxicated, in this case

with a blood alcohol level of 0.10% or more. The court

reiterated the conclusion that the State must prove that

the person charged with this offense knew, or reasonably

should have known that the operator of the vehicle was

intoxicated or had a blood alcohol level of 0.10% or more.

The court recognized that evidence permitted an

inference that the defendant knew or reasonably should

have known of the operator’s intoxication, but held that

evidence was insufficient to sustain a conviction.

L. Right to Independent Tests

State v. Jalkiewicz, 303 N.J. Super. 430 (App. Div.

1997), reversed the trial court’s suppression of

defendant’s Breathalyzer results. The trial court had

found the police did not have reasonable procedures in

effect to “implement” defendant’s right under N.J.S.A.

39:4-50.2c to have chemical blood tests conducted by

the person or physician of his choice. The appellate court

found that only where the absence of procedures interfere

with defendant’s right to obtain his own testing must

relief be granted and here there was no such interference.

The Court also questioned the validity of the holding in

State v. Broadley, 281 N.J. Super. 230 (Law Div. 1995).

Broadley held that because the police department did

not have reasonable procedures in place to enable drunk-