STATE OF NEW JERSEY v. STEVEN M. DARIEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0510-08T40510-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN M. DARIEN,

Defendant-Appellant.

________________________________________________________________

 

Argued October 26, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 09-08-C-T09.

Richard R. Uslan argued the cause for appellant.

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

PER CURIAM

Defendant, Steven M. Darien, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, for which he was sentenced to seven months loss of driving privileges and appropriate fines and penalties. Defendant argues:

POINT ONE

THE STATE FAILED TO DISPROVE THE DEFENDANT'S AFFIRMATIVE COMMON-LAW DEFENSE OF IMPOSSIBILITY OF PERFORMANCE (i.e., HIS PHYSICAL INABILITY TO PROVIDE SUFFICIENT BREATH SAMPLES CAPABLE OF ANALYSIS BY THE ALCOTEST OPERATOR) BEYOND A REASONABLE DOUBT, NECESSITATING A REVERSAL OF HIS CONVICTION FOR REFUSAL AND THE ENTRY OF A FINDING OF NOT-GUILTY OF N.J.S.A. 39:4-50.4A [NOT RAISED BELOW]

POINT TWO

THE LAW DIVISION MISAPPLIED STATE V. STEVER, COMPELLING THIS DEFENDANT TO REITERATE THAT HE WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR ERRONEOUSLY COMMENTED UPON, AND THE COURT ERRONEOUSLY CONSIDERED, EVIDENCE OF THE DEFENDANT'S POST-ARREST SILENCE ABOUT HIS PHYSICAL INABILITY TO PROVIDE ADEQUATE BREATH SAMPLES FOR ANALYSIS.

We reject these arguments and affirm.

On November 3, 2007 at about 10:35 p.m., Somerset County Sheriff's Officer Louis Bimble observed defendant driving erratically, weaving within his lane and crossing over the double yellow lines. Bimble stopped defendant, after which he observed some indicia of intoxication, including the odor of alcohol, fumbling in producing requested documents, and watery eyes. In response to Bimble's question, defendant denied consuming any alcoholic beverages. Bimble subjected defendant to several roadside sobriety tests. Based upon the manner of defendant's driving, his appearance and demeanor, and his performance on the sobriety tests, Bimble formed the opinion that defendant was under the influence of intoxicating beverages, and he placed him under arrest for driving while intoxicated.

Bimble placed defendant in his marked sheriff's vehicle and transported him to the Bridgewater Police station. Upon arrival, Bridgewater police officer John Mitzak, a certified Alcotest operator, joined Bimble and defendant. As defendant entered the police station, he stumbled. Bimble caught him to keep him from falling and asked again whether he was sure he had not had anything to drink. According to Bimble, defendant "may have told me I had two drinks." While being processed at the police station, Bimble administered Miranda warnings to defendant.

Bimble read to defendant the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, and defendant answered affirmatively that he would submit to chemical testing. Defendant signed the Miranda rights form that he refused to answer any questions. After observing defendant for twenty minutes at the stationhouse, Mitzak explained the Alcotest procedure to defendant and read verbatim from the prescribed instruction form: "I want you to take a deep breath and blow into the mouthpiece with one long, continuous breath. Continue to blow until I tell you to stop. Do you understand these instructions?" Defendant stated that he understood the instructions.

The Alcotest device requires a breath sample of a minimum of 1.5 liters for 4.5 seconds. Mitzak performed eleven tests on defendant, but each time defendant failed to provide an adequate sample. According to Mitzak, defendant "wouldn't even form a seal with his mouth around the tube to even give a proper sample." During the course of the testing, Mitzak took out a new mouthpiece, unwrapped it, and demonstrated to defendant how to place his mouth around it. Defendant continued in his failure to comply. Mitzak reiterated: "He wouldn't make a seal, you know, around the tube, and he wouldn't even attempt to give a good, you know, long, deep breath until I told him to stop."

When asked on direct examination whether defendant said anything about a medical condition or that he couldn't blow into the machine, Mitzak answered in the negative. When asked what defendant's reaction was during the sequence of the eleven tests, Mitzak responded that "he was kind of out in outer space to describe him. He just -- he was kind of a blank -- he had a blank expression. He would just -- when I would say, 'you're not doing it right,' he would just kind of shrug his shoulders and look at me." When asked to describe the "type of look" more specifically, Mitzak said defendant "was just staring at me and he would just shrug his shoulders and never said I'm trying, I'm doing my best. He never said anything like that." After the eleven failed attempts to obtain a proper sample, defendant was issued a summons for refusal to submit to a breath test.

Defendant testified. He admitted that he consumed two beers earlier that evening. His explanation for denying drinking any alcohol when asked by Bimble at the scene of the stop was that he thought Bimble asked if he had "been out drinking," which defendant equated with asking whether he had been out all night drinking large quantities of alcohol. Defendant contended he felt fine and did not believe his ability to safely operate a motor vehicle was affected by his consumption of two beers earlier in the evening.

Defendant's defense to the refusal charge was a psychiatric defense. Defendant, who was sixty-five years old at the time of this incident, contended that he had suffered from anxiety and panic attacks since he was in his twenties, and that he had been treated for the condition off and on over the years. He contended that upon being arrested for driving while intoxicated and brought to the police station, he became anxious, and that his anxiety increased when he was read his Miranda warnings.

By the time he was asked to submit to the breath test, he felt he was suffering from a "full blown panic attack," he felt his throat closing, and he wanted his symptoms to go away so badly that he felt like he wanted to die. Defendant contended that this state of mind continued throughout the breath testing process. He said he tried to provide an adequate breath sample, but was unable to do so because of the shortness of breath caused by his panic attack. He said he tried his best to comply with Mitzak's instructions. When asked whether he told Mitzak he was having trouble blowing into the machine, defendant stated that "[h]e knew that. He could see that."

Defendant produced Dr. Howard Gilman, a psychiatrist, at trial. Gilman was not defendant's treating psychiatrist. Gilman reviewed some records provided by defendant's treating psychiatrist, as well as police reports and records from this incident, and he interviewed defendant for about one-and-one-half hours about a month before trial, in preparation for trial. By way of history, defendant told Gilman he had suffered from panic and anxiety throughout his life, but the symptoms had been quiescent until about two-and-a-half years before this incident. Defendant told Gilman that about three months before this incident, he began to experience increased anxiety and panic. Gilman further described what defendant told him as follows:

On the night of his arrest, when he was stopped by police, he became anxious. Which in and of itself may be a normal response. However, his anxiety began to progress very quickly into what I've diagnosed as a panic disorder. He found it hard to talk, his hands began to shake, he was sweating, and he had a general mounting increase in his general anxiety level. He felt short of breath, he was having heart palpitations.

As he was given some of the roadside tests by his car, he had the -- the feeling that he was going to cry. After he was brought to the police station, he reported he was read his Miranda rights, and that specifically further worsened his anxiety symptoms.

. . . .

After being read his Miranda rights, his anxiety worsened further. He felt his throat closing on him. He actually had the thought that he would -- he wished that the symptoms would go away to the point where he -- he even thought he wished he might die. He didn't want to die, but the symptoms were that distressing to him. This was going on through the period of time when he had the alcohol breath tests and really continued until or -- or at some point after he left the police station after his wife picked him up.

Gilman further described defendant's prior history, including that which was contained in the records of defendant's treating psychiatrist, who defendant had first consulted in 2004. At that time, that psychiatrist reported that defendant was drinking three or four drinks per day, and he diagnosed him with a depressive disorder and an anxiety disorder. Initially, he also diagnosed defendant with alcohol dependence, although that diagnosis was later deleted from subsequent entries in the psychiatrist's records. Defendant was treated with a combination of two psychotropic medications, Wellbutrin (an antidepressant medication) and Zoloft (an antidepressant and anti-anxiety medication). At some point, the Zoloft was replaced with Lexapro.

Gilman diagnosed defendant with panic disorder without agoraphobia (fearfulness about going out). Gilman opined that defendant suffered a panic attack while in police custody on the date of this incident. When asked how the panic disorder manifested itself that evening, Gilman referred back to the symptoms related to him by defendant:

A Well, it expressed itself by a general degree of anxiety which seemed to increase over the period of time that he was in police custody, as well as specific symptoms. Those symptoms being shortness of breath, palpitations, nausea, sweating, a feeling of subjective distress, difficulty concentrating. I think that pretty much covers it.

Q Shortness of breath, --

A Yes.

Q -- could the shortness of breath be to such a degree that you would be prevented from providing a breath sample of 1.5 liters for 4.5 seconds?

A Sure.

Gilman acknowledged that he did not evaluate defendant at or near the time of the incident. He explained that

in something like panic disorder, where the episodes of panic are intermittent, and lasting sometimes as little as . . . fifteen or 20 minutes, or an hour, or an hour and a half even, but occurring intermittently, I might never see those symptoms in a patient [and] I might only hear about the symptoms from what the patient reports.

Gilman acknowledged that typically an individual suffering a panic attack might appear to others as simply having anxiety, which might be a common occurrence "in a situation like this because you've just been arrested." He acknowledged that there wouldn't necessarily be any objective manifestation of symptoms and that a lay person would probably not recognize "that something was wrong beyond simple anxiety."

The municipal judge rejected the defense. He found it significant that defendant did not tell Mitzak he was trying but unable to provide an adequate breath sample, that he was having a panic attack, shortness of breath, or experiencing any other difficulty that was preventing him from complying with the instructions and providing an adequate sample. The municipal judge was therefore "not persuaded that the panic attack prevented the production of the breath sample . . . as a physical impossibility."

In the Law Division, Judge Edward M. Coleman also rejected the defense. Referring to the municipal court transcript, he recounted the evidence that defendant would not form a seal with his mouth around the tube, even when that simple procedure (which has nothing to do with shortness of breath) was demonstrated to him by Mitzak, in addition to Mitzak's repeated verbal instructions. Judge Coleman noted that the municipal judge implicitly found defendant's testimony incredible. Judge Coleman deferred to that credibility determination, and also found defendant not credible. The judge found that Gilman's expert opinion lacked persuasive force because it was predicated upon what defendant told him about the incident, which the judge deemed incredible. The judge explained it this way:

While the defendant offers Dr. Gilman's expert testimony about anxiety attacks and panic attacks, his testimony is totally dependent on the credibility of defendant, that he made a sincere effort to blow into the tube and supply sufficient amount of air but was physically, mentally unable to do so. That's not the case. As indicated by the other witnesses in the case, the credible witnesses. The fact that they observed that he wasn't closing his mouth around the tube to submit sufficient air. So, Gilman's testimony may be credible, but it fails to take into consideration the deliberate acts by the defendant basically to refuse to supply sufficient air to grant the test. To me it's clear that he was intentionally refusing. And so I do find the defendant guilty beyond a reasonable doubt given his conduct at the time of the test.

Dr. Gilman's testimony is as I indicated totally dependent on credible information coming from the defendant. It's obvious to me that the defendant was not credible with regard to his testimony given his actions on the date of the event.

Judge Coleman also rejected defendant's argument that defendant was denied a fair trial because the prosecutor improperly elicited testimony regarding defendant's post-arrest silence and the municipal judge relied, in part, on that silence in reaching his decision. Relying on State v. Stever, 107 N.J. 543, cert. denied, 484 U.S. 954, 108 S. Ct. 348, 98 L. Ed. 2d 373 (1987), the judge noted "that refusing to take a test is non-testimonial in nature and not covered by the privilege against self-incrimination." Indeed, Judge Coleman also relied, to some extent, on defendant's failure to express to Mitzak that he was having a problem furnishing an adequate breath sample.

To sustain a conviction for refusal to submit to a breath test, the State must prove beyond a reasonable doubt (as applicable in this case) (1) that the arresting officer had probable cause to believe that the person had been driving while under the influence of intoxicating liquor, and (2) that the person refused to submit to the test upon request of the officer. N.J.S.A. 39:4-50.4a. It is the second element, refusal to submit to the test, that is at issue here.

On appeal, defendant characterizes his psychiatric defense as an affirmative defense, and argues that once he provided some evidence from which it could be found that it was impossible, because of a psychiatric condition, for him to provide an adequate breath sample, the State had the burden of disproving that fact beyond a reasonable doubt. Defendant argues that, although the refusal statute contains no express exceptions based upon impossibility of performance due to a medical condition, similar statutes in some other states contain such an exception, and, in State v. Chun, 194 N.J. 54, 104, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), the Court carved out an exception for women over the age of sixty, who are permitted to provide a lower minimum volume, namely 1.2 liters, rather than 1.5 liters. This was based upon evidence that "the older women, and only the older women, may be physically incapable of producing the larger sample." Id. at 103. Based on these authorities, defendant argues that a similar exception should be carved out due to impossibility of performance by a particular defendant based upon his or her infirmity.

We do not take exception to the contention that some individuals, based upon circumstances unique to them, may be physically unable to provide the required breath sample. For example, an individual might have been injured in an accident arising out of the operation of the motor vehicle, which might make it impossible for that individual to provide the required sample. Or, a defendant might suffer from some significant respiratory ailment that would also make it impossible. Under any such circumstances, whether the defense is characterized as an affirmative defense or not, the State continues to bear the burden of proving a deliberate refusal beyond a reasonable doubt. A judge evaluating the evidence must determine whether the State has carried its burden, in light of all of the circumstances as presented in the trial record as a whole.

On de novo review, Judge Coleman applied the correct standard by making his own findings of fact based on the municipal court record, giving due, though not controlling, regard to the municipal judge's credibility findings. See State v. Locurto, 157 N.J. 463, 473-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). We are satisfied from our review of the record that Judge Coleman's findings are amply supported by sufficient credible evidence in the record as a whole, and we have no occasion to interfere with them.

To some extent, Judge Coleman's ultimate finding that defendant deliberately refused to provide a breath sample, was predicated upon defendant's failure to say, during the course of the eleven failed attempts, that he was trying but was having a problem complying. We agree with Judge Coleman's analysis that consideration of defendant's silence in this context was not constitutionally prohibited. The ultimate issue regarding the disputed element of the refusal statute was whether defendant possessed the requisite state of mind, that is, to deliberately refuse to give the required sample, or whether the State failed to prove that was his purpose because he was unable to comply due to a physical inability.

A person's state of mind cannot be seen and is rarely announced by that person. Therefore, in order for a factfinder to determine a person's state of mind, the factfinder must consider all of the surrounding circumstances and all that was said and done at the critical time. Defendant's silence occurred during the commission of the refusal offense. His failure to express difficulty in being able to comply with the instructions provided him verbally and by demonstration, was a fact, no different than other facts (such as the instructions, defendant's failure to place his mouth around the tube as demonstrated by Mitzak, etc.) occurring at the time of the offense itself. It was part of all of the surrounding circumstances from which the factfinder could evaluate defendant's state of mind.

Defendant relies upon State v. Deatore, 70 N.J. 100, 115-16 (1976), in arguing that the State may not attempt to impeach a defendant's exculpatory testimony on cross-examination with his post-arrest silence. Defendant further relies on State v. Lyle, 73 N.J. 403, 410 (1977), in arguing that the State is precluded from commenting upon a defendant's post-arrest silence in order to impeach his exculpatory defense. The flaw in this argument is that the silence involved here pertained to the refusal offense. Although defendant had previously been arrested for driving while intoxicated, he was not arrested for refusal at the time of this silence. As we have explained, this silence occurred during the commission of the refusal offense, and it was a fact that was part of defendant's conduct in committing the offense.

In Stever, the Court noted that it has consistently held that the taking of a breath test "is non-testimonial in nature and, therefore, is not covered by the privilege against self-incrimination." Stever, supra, 107 N.J. at 558. Therefore, with respect to the refusal, the defendant was not under interrogation, and whatever he said was admissible in evidence. Id. at 561. The same reasoning applies to what defendant did not say in this case. Because defendant had not been arrested for the refusal, his pre-arrest silence with respect to that offense bore on his credibility. State v. Silva, 131 N.J. 438, 445-46 (1993). If the factfinder could infer that a reasonable person in defendant's situation would have come forward and made some exculpatory statement, the defendant's failure to do so is probative as to defendant's credibility. Ibid. When no government compulsion is associated with a defendant's pre-arrest silence, and when objective circumstances demonstrate that a reasonable person would have acted differently, the State may impeach the defendant on his silence in those circumstances. State v. Brown, 190 N.J. 144, 158-59 (2007).

In Chun, the Court noted that after an eleventh failed test, the operator has the option of terminating the testing or restarting the device and offering another series of eleven tests. Chun, supra, 194 N.J. at 81. The Court explained it this way:

Even if the officer types in the code for a refusal, he is not required to issue a summons for refusal. Instead, the officer may opt to start the test again and give the arrestee eleven more attempts. Alternatively, the officer may decide to terminate testing, without charging the test subject with refusal. An operator will generally select this option if he or she concludes that the subject has in fact attempted to comply but is not capable of providing a sample that meets the minimum test criteria.

[Id. at 81-82 n.14.]

Just as the Alcotest operator is permitted to consider all of the facts and circumstances occurring in the administration of the test in order to evaluate whether, in the officer's view, the defendant is physically incapable of providing an adequate sample or is deliberately refusing to do so, so is the court in assessing whether the State has carried its burden of proof on that issue. In either circumstance, consideration of all observable events, including all that was said (or not said) and done is appropriate.

 
Affirmed.

Defendant was also charged with and acquitted in the municipal court of driving while intoxicated, N.J.S.A. 39:4-50(a). Defendant was convicted of careless driving, N.J.S.A. 39:4-97 but he has not appealed from that conviction.

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

Although N.J.S.A. 39:4-50.4(a)a requires proof by only a preponderance of the evidence, our Supreme Court has held that proof beyond a reasonable doubt is required. State v. Cummings, 184 N.J. 84, 95 (2005).

(continued)

(continued)

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A-0510-08T4

November 19, 2009