Opinion
Argued May 22, 1967 —
Decided May 25, 1967.
Appeal from The Mercer County Court, Law Division, on a trial de novo on appeal from the Municipal Court.
Before Judges GOLDMANN, KILKENNY and COLLESTER.
Mr. Leonard A. Coyle argued the cause for appellant.
Mr. Bryan V. Moore, Assistant County Prosecutor, argued the cause for respondent ( Mr. Vincent Panaro, Prosecutor, attorney).
Mr. Joseph A. Hoffman, Assistant Attorney General, argued the cause amicus curiae ( Mr. Arthur J. Sills, Attorney General, attorney; Mr. Thomas J. Savage, Deputy Attorney General, on the brief).
The County Court found defendant guilty of drunken driving after a trial de novo on appeal from the municipal court. We conclude, on the basis of (1) what defendant said to the police officer on his arrival to investigate the rear-end collision; (2) the police officers' and drunkometer operator's direct observation of defendant's physical condition and odor of alcohol, and (3) the drunkometer test result (.18 reading), that the State proved defendant's guilt beyond a reasonable doubt. We do not consider the answers defendant gave when questioned by the drunkometer operator, although we disagree with the trial judge's ruling excluding such answers.
Determination of whether defendant voluntarily consented — see N.J.S.A. 39:4-50.1 as it read on July 16, 1966, now amended by L. 1966, c. 142 (see N.J.S.A. 39:4-50.2 (e)) — to take the drunkometer test was for the trial judge. In light of the record, we will not disturb his factual finding that defendant so consented. Accordingly, we find no violation of defendant's constitutional rights. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. King, 44 N.J. 346 (1965).
Affirmed.