STATE OF NEW JERSEY v. BONG CHANG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1894-06T51894-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BONG CHANG,

Defendant-Appellant.

_________________________________________________________

 

Argued July 10, 2007 - Decided October 30, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 06-06.

Thomas G. Aljian, Jr. argued the cause for appellant (Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, attorneys; Mr. Aljian, on the brief).

Michael McLaughlin, Assistant Prosecutor, argued the cause for respondent (Wayne J. Forrest, Somerset County Prosecutor, attorney; Mr. McLaughlin, on the brief).

PER CURIAM

Following a trial de novo on the record created in the Watchung Township Municipal Court, Judge Robert B. Reed of the Superior Court, Law Division, Somerset County, entered an order dated October 19, 2006, that memorialized the court's finding that defendant Bong Chang was guilty of refusing to submit to a breathalyzer test. The judge issued a written decision dated October 17, 2006, that set forth the basis for his order. Defendant was sentenced as a second offender to a two-year loss of driving privileges and appropriate fines, costs and assessments.

On this appeal defendant asserts a single point of error:

POINT I: DUE TO THE FAILURE OF THE ARRESTING OFFICER TO READ THE ADDITIONAL STATEMENT ON THE STANDARD STATEMENT AFTER DEFENDANT'S AMBIGUOUS AND CONDITIONAL RESPONSE TO A REQUEST FOR A BREATH SAMPLE, A MATERIAL ELEMENT TO A VIOLATION OF N.J.S.A. 39:50.2 WAS NOT PROVED.

Substantially for the reasons articulated by Judge Reed in his written opinion and for the additional reasons below, we affirm.

The material facts are not in dispute and can be briefly recited. Following a report of a hit-and-run accident in the parking lot at the Somerset Hills Hotel, in Warren, on August 10, 2005, Officer Brad Sporer of the Watchung Police Department effectuated a stop of defendant's vehicle because it fit the description of the vehicle that left the scene of the accident. The officer testified that when he approached the driver's window, he detected a strong smell of alcohol, and consequently, he had defendant perform various field sobriety tests. On the basis of defendant's inability to satisfactorily complete the tests, the strong odor of alcohol and defendant's slurred speech, the officer placed defendant under arrest and transported him to the Watchung police headquarters.

At the police headquarters, Officer Sporer informed defendant of his Miranda rights and also read to him the eleven numbered paragraphs of the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle (Standard Statement), pursuant to N.J.S.A. 39:4-50.2. The full text of those eleven paragraphs is as follows:

You have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or drugs, or with a flood alcohol concentration at, or above, that permitted by law.

The law requires you to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

A record of the taking of the sample, including the date, time, and results, will be made. Upon your request, a copy of that record will be made available to you.

Any warnings previously given to you concerning your right to remain silent, and your right to consult with an attorney, do not apply to the taking of breath samples, and do not give you the right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. You have no legal right to have an attorney, physician, or anyone else present, for the purpose of taking the breath samples.

After you have provided samples of your breath for chemical testing, at your own expense, you have the right to have a person or physician of your own selection, take independent samples and conduct independent chemical tests of your breath, urine, or blood.

If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.

Any response from you that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.

According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.

Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.

If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an Intoxicated Driver Resource Center, and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.

I repeat, you are required by law to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Now, will you submit the samples of your breath?

[New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - N.J.S.A. 39:4-50.2(e).]

Officer Sporer testified that as he read each numbered paragraph, he asked defendant if he understood it, and defendant consistently indicated he did. After all of the numbered paragraphs had been read, Officer Sporer asked defendant if he would give a breathalyzer sample, and defendant indicated he would.

However, about fifteen or twenty minutes later, after Officer Sporer had warmed up the apparatus and summoned an officer who was certified to administer the breathalyzer exam, "[defendant] just said[,] 'I changed my mind. I don't want to take the test.'" At that point, the officer modified his notation of defendant's response on the Standard Statement from a "yes" to a refusal. The officer testified that he then told defendant that he would be issuing a summons.

It is not disputed that the officer failed to read the additional (unnumbered) statement or paragraph at the bottom of the Standard Statement form verbatim. The instruction on the form, directed to the administering officer, states:

IF THE PERSON: REMAINS SILENT; OR STATES OR OTHERWISE INDICATES, THAT HE/SHE REFUSES TO ANSWER ON THE GROUNDS THAT HE/SHE HAS A RIGHT TO REMAIN SILENT, OR WISHES TO CONSULT AN ATTORNEY, PHYSICIAN, OR ANY OTHER PERSON; OR IF THE RESPONSE IS AMBIGUOUS OR CONDITIONAL, IN ANY RESPECT WHATSOEVER, THEN THE POLICE OFFICER SHALL READ THE FOLLOWING ADDITIONAL STATEMENT:

[Ibid.]

The prescribed additional statement at the bottom of the form summarizes the warnings contained in numbered paragraphs on the form and reiterates that the arrestee has no right to refuse to give samples of his breath. The additional statement provides:

I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your prior response, silence, or lack of response, is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

Once again, I ask you, will you submit to giving samples of your breath?

[Ibid.]

As noted above, Officer Sporer did not read that additional paragraph to defendant. Rather, when defendant told Sporer he changed his mind, Sporer informed defendant that he would be issuing a summons. As defendant was preparing to leave the station, he apparently changed his mind again because defendant then stated that he would be willing to submit to an exam. However, at that juncture, approximately an hour to an hour and a half after the initial request, the officer indicated it was too late because the summons had already been issued.

Defendant now contends that the officer's failure to read the additional paragraph precludes a finding that he had refused to submit to the breathalyzer. In addition, defendant notes that on cross-examination, Officer Sporer agreed with defense counsel's characterization that it is "fair to say that defendant's actions were conditional that he refused to take the test." The officer also testified that there was a lot going on in a short time span. When defense counsel suggested, "So you forgot to read him that portion?", he answered, "Yes." Thus, defendant asserts "the admission by the arresting officer that [defendant's] response of 'yes' and 'no' was ambiguous or conditional and that he simply forgot to read the additional statement is determinative in this matter." We disagree.

Contrary to the basic premise of defendant's argument on appeal, the reading of the additional unnumbered paragraph on the Standard Statement form is not a material element to a violation of N.J.S.A. 39:50.2. Rather, that paragraph was intended merely as an additional "procedural safeguard to help ensure that defendants understood the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." State v. Widmaier, 157 N.J. 475, 489 (1999).

Subsection (e) of the N.J.S.A. 39:4-50.2 does provide, in pertinent part, that "[t]he police officer shall . . . inform the person arrested of the consequences of refusing to submit to such test," and it provides further that "[a] standard statement, prepared by the director, shall be read by the police officer to the person under arrest." N.J.S.A. 39:4-50.2(e). Notably, in this case, the Standard Statement was read. What was not read was the supplemental reminder that anything other than "yes" is unacceptable.

In Widmaier, the Court endorsed earlier holdings by this court to that effect, declaring "'anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so.'" supra, 157 N.J. at 488, 497 (quoting State v. Bernhardt, 245 N.J. Super. 210, 219 (App. Div. 1991) (citations omitted). The Court was emphatic in Widmaier that "'once the defendant says anything except an unequivocal 'yes' to the officer's request after the officer has informed the defendant of the consequences of refusal, the defendant cannot legally cure the refusal.'" Id. at 488. Moreover, "a motorist has no right to delay a breathalyzer test." Id. at 498. Consequently, delaying tactics, such as granting a request to consult with counsel or having counsel present for calibration purposes, are not to be indulged. Ibid.

In a further attempt to forestall potential ambiguity concerning a motorist's intent to submit to the test when the motorist responds conditionally or ambiguously, the Court recommended that a simpler version of the Standard Statement be adopted to warn the suspect that if he or she does not agree to provide breath samples, a summons will be issued. The Widmaier Court explained:

Although we are fully persuaded that defendant failed to consent to the breathalyzer test, we note that it may be in the interest of both law enforcement officials and the driving public to amend the standard statement in order to eliminate any ambiguity concerning a motorist's intent to submit to the test. We would recommend a modification of the instructions accompanying the statement that directs the police officer, in the event the motorist's response to the standard statement is conditional in any respect whatsoever, to then inform the motorist that the prior response is unacceptable and that, unless the motorist consents unconditionally to the taking of breath samples, a summons alleging violation of the breathalyzer statute will issue. Accordingly, we urge the Director of the Division of Motor Vehicles to consider revising the standard statement to further ensure that suspects understand that an ambiguous or conditional answer to a request to submit to a breathalyzer test will be deemed a refusal.

[Id. at 498-99 (emphasis added).]

With regard to the version of the additional paragraph of the Standard Statement then utilized, the Court observed:

In addition, we note that the second sentence of the supplement to the standard statement that, in its present form, lists three examples of conduct by a subject that will result in issuance of a summons, . . . may be difficult to understand. A simpler version would warn the suspect that if he or she does not agree to provide breath samples, a summons will issue. We encourage the Director to simplify and clarify the supplement to the standard statement.

[Ibid. (internal citations omitted.]

It is evidence that the Court was not wholly successful in its attempt to forestall or eliminate ambiguity in the implementation of the refusal statute. See, e.g., State v. Duffy, 348 N.J. Super. 609 (App. Div. 2002); State v. Spell, 395 N.J. Super. 337 (App. Div. 2007).

In Duffy, a trooper read the DWI Standard Statement to the defendant, who claimed he was sick and could not take the breathalyzer. supra, 348 N.J. Super. at 610. After the trooper setup the machine and asked the defendant again if he would take the test, the defendant replied "I'll take the test, but it's under duress." Id. at 610-11. The trooper made no further attempt to give defendant the breathalyzer, as he interpreted defendant's response as a refusal. Therefore, he did not inform defendant that his response was unacceptable and he did not read the additional statement on the Standard Statement form. Id. at 612. Under the circumstances, that panel reversed the conviction. Id. at 613.

In Spell, the defendant testified he wanted to take the test, but after the breathalyzer form was read to him, he claimed he was having difficulty breathing. supra, 395 N.J. Super. at 340-41. According to the trooper's testimony, the request for the breath sample was met with a flat refusal, followed by a request made an hour later to take the test. Id. at 341. That trooper read the eleven-numbered paragraphs of the Standard Statement Form to defendant but, as in this case, he did not read the additional paragraph which the form indicates should be read "'[i]f the person: remains silent; or states, or otherwise indicates, that he/she refuses to answer on the ground that he/she has a right to remain silent, or wishes to consult with an attorney, physician or any other person; or if the response is ambiguous or conditional in any respect whatsoever.'" Id. at 343-44 (quoting Standard Statement).

Writing for the panel in Spell, Judge Stern distinguished Widmaier and Duffy, stating: "[t]he case before us differs from Widmaier and Duffy in that defendant was found to have unequivocally refused to take the breathalyzer test. The record supports such a finding, and we affirm the conviction." Id. at 347.

Even more instructive for our present analysis is the following comment by Judge Stern:

A reading of the standard statement used in this case does not require the officer to read the second paragraph when the defendant unequivocally refuses to take the breathalyzer test.

[The quoted instruction, see page 6 herein, is omitted.]

These instructions regarding the reading of the additional paragraph seem to be clearly designed for the defendant who ambiguously declines or conditionally agrees to take the breathalyzer test. According to Officer Salvato, defendant did not claim to have the right to remain silent, express any desire to see a physician or consult with counsel, or make any other request incident to taking the breathalyzer test. Rather, Trooper Salvato testified that defendant refused to take the test, and by reading the instructions to defendant as detailed in the Standard Statement without the additional paragraph, Trooper Salvato satisfied the procedural requirements of N.J.S.A. 39:4-50.2(e).

[Ibid.]

In short, the court in Spell concluded that the additional paragraph was not necessary, because the defendant had been made aware twice that he was required to submit to a breathalyzer test and was informed of the penalties for failing to unconditionally submit to taking the test.

We recognize that defendant in this case contends that Officer Sporer admitted on cross-examination that defendant's actions were conditional and that Sporer simply forgot to read the additional paragraph. In spite of the officer's apparent acquiescence and acceptance of counsel's characterization on cross-examination, neither the municipal court judge nor the judge in the Law Division found defendant's refusal was equivocal or conditional.

The municipal court judge stated:

In addition, Widmaier makes it real clear, and that's the Supreme Court. It's unequivocal. And [defendant] was unequivocal. He wasn't ambiguous. He wasn't -- it wasn't a conditional let me talk to my lawyer, you know, and then I'll take the test. He didn't say that. First he agreed to take it, and he unequivocally said no, once they got the operator, the breathalyzer operator.

. . .

So with regard to the refusal charge, the standard statement was read. I incorporate [the] Court's ruling earlier on the arguments made by [counsel] with regard to, one, the ability to cure, and then, two, the failure to read the last paragraph, which I find will be unnecessary when there is an unequivocal response from a defendant. I find the defendant guilty beyond a reasonable doubt.

[(internal citations omitted).]

In the Law Division, the judge, likewise, found defendant guilty of the refusal charge on the trial de novo. There, the judge stated:

The Defendant unambiguously and unconditionally refused to consent to the breathalyzer test. His subsequent consent is of no moment because the amount of time that had passed between the initial request and the "second" consent would influence the breathalyzer test's efficacy.

. . .

Furthermore, the requirements of N.J.S.A. 39:4-50.2(e) had also been complied with. The officer read the top half of the standard statement, which sufficiently informed the Defendant of the consequences that flow from a refusal. Additionally, the second half of the form is not required to be read in this case, because the Defendant's refusal was not met by silence, an invocation of his Sixth Amendment rights, an invocation of the desire to consult a doctor or other medical professional, conditional, or ambiguous. The Defendant consented by saying yes, and then withdrew that consent by saying no. That is not ambiguous in any sense of the word.

On appeal from a de novo trial in the Law Division, the question is whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). In this instance, we are satisfied they could. The trier of fact is not bound by the labels, descriptions, characterizations or opinions proffered by the attorneys or even by the witness. Instead, the trier of facts considers the totality of the circumstances, the contemporaneous conduct of the actors, the demeanor of the witnesses and the nature of any inconsistencies or contradictions that may appear. At most, the officer's responses on cross-examination were inconsistent with his direct testimony and with his conclusion and conduct when he informed defendant he would be issuing a summons for his refusal.

 
The Spell panel recognized that, even after the Widmaier modifications to the Standard Statement, the potential still exists for any defendant to unequivocally refuse to submit to a breathalyzer test and later argue that his response was ambiguous. supra, 395 N.J. Super. at 348. To obviate that potential and to avoid future litigation about the nature of the response, the court determined on a prospective basis, effective October 1, 2007, that officers must read the additional paragraph of the form whenever the defendant refuses to immediately take the breathalyzer exam upon request. Ibid. The events at issue in this case are not subject to that prospective mandate. Because defendant's refusal to submit to the breathalyzer test was found to be unequivocal, there was no need to read the additional paragraph.

Affirmed.

Defendant was also charged with driving under the influence of alcohol, but he was found not guilty of that charge, as reflected in the Law Division order dated October 19, 2006. This appeal involves only the conviction for refusing to submit to the breathalyzer test. The statutory citation included in the order, dated October 19, 2006, is N.J.S.A. 39:4-50(a). That is the citation for driving while intoxicated. As noted in footnote 1 of the opinion of the Supreme Court in State v. Cummings, 184 N.J. 84, 90 (2005), the correct reference for the refusal to submit to a breathalyzer test would be N.J.S.A. 39:4-50.4. Having considered the arguments advanced in the briefs on appeal, we discern no confusion or prejudice as a result of the incorrect statutory reference.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Spell was decided by a different panel of the court on July 31, 2007, after the presentation of oral arguments in this matter. Defendant wrote to the court to ensure that we were aware of Spell, though he asserts "there is no doubt in Spell that the defendant was not ambiguous or conditional in his response of the officer's request to take a breath sample[.]"

(continued)

(continued)

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A-1894-06T5

October 30, 2007