STATE OF NEW JERSEY v. KELLY LODER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4385-08T44385-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELLY LODER,

Defendant-Appellant.

_____________________________________

 

Argued December 16, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Municipal Appeal No. 107-08.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Lubin, on the brief).

Jack J. Lipari, Assistant Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant, Kelly Loder, appeals from her conviction, following the entry of a guilty plea before the municipal court and de novo appeal to the Law Division, for refusing to submit to a breathalyzer test, N.J.S.A. 39:4-50.4. Defendant claims that the defense of necessity, which she successfully asserted in connection with the other charges lodged against her, should apply to the refusal charge. We disagree and affirm substantially for the reasons expressed by Judge Robert Neustadter in his March 25, 2009 oral opinion.

On June 2, 2008, defendant was arrested and charged with driving under the influence, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.4; reckless driving, N.J.S.A. 39:4-96; careless driving, N.J.S.A. 39:4-97; and failure to maintain her lane of travel, N.J.S.A. 39:4-88. On September 30, 2008, based upon the State's concession that it would be unable to sustain its case against the defense of necessity, the municipal court judge dismissed all of the charges, with the exception of the refusal offense.

As to the refusal charge, the municipal judge concluded that the defense of necessity did not apply. Defendant thereafter pled guilty. The court imposed a $1006 fine, a $100 drunk driving surcharge, revoked defendant's license for ten years, and ordered defendant to spend twelve hours attending the Intoxicated Drivers' Resource Center over two consecutive days. The court stayed the imposition of its sentence until after disposition of defendant's post-conviction relief applications that were pending in Atlantic City Municipal Court. See State v. Laurick, 120 N.J. 1, 17, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990). Defendant subsequently moved for reconsideration of the court's determination that the necessity defense did not apply to the refusal charge or, alternatively, for post-conviction relief based upon the same premise. The court treated defendant's application as a motion to withdraw her guilty plea pursuant to Rule 7:6-2(b) and denied the motion. The court once again stayed sentencing, pending appeal of the conviction to the Law Division.

In an April 7, 2009 order from the Law Division, Judge Neustadter, for reasons he placed on the record on March 25, affirmed the municipal court judge's order denying defendant's motion to vacate the guilty plea. The court vacated the stay and ordered that defendant commence serving the custodial portion of her sentence. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE MUNICIPAL COURT JUDGE'S FINDING THAT DEFENDANT'S OPERATION WAS JUSTIFIED BY THE DEFENSE OF NECESSITY PRECLUDES A CONVICTION FOR REFUSAL.

POINT II

THE POLICY UNDERLYING NEW JERSEY'S REFUSAL LAWS DOES NOT SUPPORT THE PRESENT CONVICTION; DEFENDANT IS NOT THE INTOXICATED DRIVER ENVISIONED BY OUR LEGISLATURE.

Whether the defense of necessity may be applied to a refusal charge is a question of law subject to de novo review. Perez v. Rent-A-Center, Inc., 375 N.J. Super. 63, 84 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006), cert. denied, 549 U.S. 115, 127 S. Ct. 984, 166 L. Ed. 2d 710 (2007). As such, no deference is owed to the trial court's "interpretation of the law and the legal consequences that flow from established facts". Manalapan Realty v. Twp. Comm., 140 N.J. 366, 378 (1995).

"The common-law defense of 'necessity' is often referred to as the 'choice-of-evils' defense." State v. Tate, 102 N.J. 64, 73 (1986)(citing W. Lafave and A. Scott, Handbook on Criminal Law 382 (1972)). "Conduct that would otherwise be criminal is justified if the evil avoided is greater than that sought to be avoided by the law defining the offense committed, or, conversely, if the conduct promotes some value higher than the value of compliance with the law." Ibid. (citing Edward B. Arnolds & Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289 (1974)).

The elements of the common-law defense of necessity are:

(1) There must be a situation of emergency arising without fault on the part of the actor concerned;

(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) The injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

[State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (quoting State v. Tate, 194 N.J. Super. 622, 628 (Law Div. 1984), aff'd, 198 N.J. Super. 285 (App. Div. 1984), rev'd on other grounds, 102 N.J. 64 (1986)).]

Defendant claims that both courts below misapplied the defense by focusing upon the time defendant was asked to submit to the breathalyzer test rather than focusing upon the circumstances giving rise to the arrest. Defendant urges that had the trial court focused on the latter time period, "the arresting officers should have realized that the operator or driver was forced to drive the vehicle, based upon the same evidence used by the Judge to find the necessity defense . . . ." We reject this contention.

The public policy underlying the "necessity" defense is that had the Legislature foreseen or contemplated the circumstances surrounding a defendant's conduct in relation to the offense charged, it would have created an exception to culpability in that particular instance. State v. Tate, supra, 102 N.J. at 73. Consequently, "the defense is available at common law only when the legislature has not foreseen the circumstances encountered by a defendant." Id. at 74. Where the Legislature "has in fact anticipated the choice of evils and determined the balance to be struck between the competing values, defendants and courts alike are precluded from reassessing those values to determine whether certain conduct is justified." Ibid.

The eradication of drunk drivers from New Jersey roadways is the chief purpose of our drunk driving laws. State v. Tischio, 107 N.J. 504, 512 (1987). This objective was aided with the enactment of the Implied Consent Law, which affirmatively obligates any person suspected of operating a motor vehicle under the influence of alcohol to submit to a breathalyzer test:

Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood[.]

[N.J.S.A. 39:4-50.2(a).]

The only conditions precedent to submitting to a breathalyzer test are: (1) an officer's probable cause to believe that the motorist was operating the vehicle in question under the influence of alcohol, (2) an arrest for driving while intoxicated; and (3) a request to submit to the test. State v. Badessa, 185 N.J. 303, 312 (2005) (citing State v. Wright, 107 N.J. 488, 490 (1987), abrogated by State v. Cummings, 184 N.J. 84, 94-96 (2005) (now requiring the State to prove the statutory elements of the refusal offense with proof beyond a reasonable doubt)).

Here there is no dispute that the arresting officer had probable cause to believe that defendant was operating her motor vehicle under the influence. Defendant's argument before both the municipal court and the Law Division was that, given the circumstances under which defendant was compelled to drive, it was reasonable for her to refuse to submit to taking the breathalyzer test. In the brief submitted in support of this appeal, defendant, for the first time, contends that "the defense of necessity and the facts in support precludes the probable cause claimed by the arresting officers" because "the arresting officers should have realized that the operator or driver was forced to drive the vehicle, based upon the same evidence used by the Judge to find the necessity defense, and therefore, [the arresting officer] did not have the requisite probable cause to administer the breath test."

Ordinarily, we will not entertain an argument on appeal that was not raised before the trial court. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Ferraro v. Demetrakis, 167 N.J. Super. 429, 432 (App. Div.), certif. denied, 81 N.J. 290 (1979) (even constitutional issues not raised below will not ordinarily be considered on appeal). Based upon the record before us, we discern no basis to do otherwise here. Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190, 196 (2004) (noting that we will consider arguments not raised below that are jurisdictional or concern matters of public interest).

In our view, with the enactment of the Implied Consent Law, the Legislature foresaw no situation that would justify a motorist's refusal to submit to the test when requested to do so. The Implied Consent Law complements the purpose of the refusal statute, which is to encourage all suspected drunk drivers to submit to the test. State v. White, 253 N.J. Super. 490, 495 (Law Div. 1991). Defendant's belief, as argued here, that it was essentially reasonable for her to refuse to submit to the test because she was forced to drive, depending upon the factual circumstances, leaves the decision to submit to the test to the suspected drunk driver's subjective beliefs rather than the arresting officer's objective observations. Given the consequences of a drunk driving conviction, such an approach would not encourage motorists to submit to the breathalyzer test when requested to do so. Ibid.

Moreover, as the Law Division judge observed, the elements of the common-law defense of necessity were not met here since, at the time defendant was asked to submit to the breathalyzer, there was no impending emergency that would have led defendant to believe that she was still in danger. Romano, supra, 355 N.J. Super. at 29. She was in the safety of the police station. Therefore, even if the necessity defense could be applied to a refusal charge, the undisputed facts here would not trigger application of the defense under these circumstances. Ibid.

 
Affirmed.

(continued)

(continued)

2

A-4385-08T4

April 6, 2010