STATE OF NEW JERSEY v. SEMA KOKAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEMA KOKAN,

Defendant-Respondent.

________________________________

December 16, 2014

Before Judges Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 24-2013.

Eric G. Guglielmotti argued the cause for appellant (Jackson Lewis, PC, attorneys; Jeffrey J. Corradino, of counsel; Mr. Guglielmotti and Robert J. Cino, on the briefs).

Joie Piderit, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Piderit, on the brief).

PER CURIAM

Defendant Sema Kokan appeals from the October 2, 2013 order of the Law Division finding her guilty of refusal to submit to a breath test contrary to N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4 A. 1 We affirm.

We derive the following facts from the record. At 3:28 p.m. on January 30, 2011, Sergeant Paul responded to a report of a "suspicious person[.]" When he arrived at the scene, he found a 2007 Toyota "stuck in a snow bank on the front lawn" of a home. The car was "[a]pproximately 15 feet from the road." No one was in the car, but the person who reported the incident told Sergeant Paul that the individual who had been in the car was across the street inside a neighbor's house. The sergeant "r[a]n the registration for the vehicle" and learned that defendant owned it.

Sergeant Paul walked across the street to the neighbor's home2 and spoke to defendant, who "admitted that she had crashed and she had parked . . . the vehicle." The sergeant testified that defendant "had bloodshot eyes, [and] wasn't speaking too clearly." He also "[d]etected an odor of alcohol on her breath[.]" As Sergeant Paul spoke to her, defendant "became more antagonistic" and "start[ed] cursing" at him. Because of defendant's "unsteadiness and her antagonistic" behavior, Sergeant Paul decided not to conduct any field sobriety tests at the scene. Sergeant Paul then arrested defendant for driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50.

As Sergeant Paul transported defendant to the police station, defendant "insisted that she did not crash the car . . . she said she parked it." Defendant also "admitted she had been drinking" sometime earlier at a local bar. She did not tell the sergeant that "anyone else had been driving the vehicle."

At the station, Officer Senatore attempted to administer a breath test to defendant. The officer explained the test and told defendant he "was going to need her to blow into the machine and instructed her clearly that we need her to continue to blow into the machine until I would tell her to stop." Officer Senatore asked defendant "if she was willing to take the test . . . [a]nd she responded that yes, she was going to take the test."

However, Officer Senatore stated that when he told defendant to "blow into the machine[,] . . . she continued to stand there and not give a sample until the time had expired that had been given for that first sample." The officer again explained the test and, the second time, defendant was able to complete the test. However, when Officer Senatore asked defendant to repeat the test, she "stopped before she had given a sufficient volume of sample." On the fourth attempt, defendant again failed to provide a sufficient volume for the test to be completed. Officer Senatore "again asked her a [fifth and] final time that we need another sample and she just refused to do it after that." The police then charged defendant with refusal to submit to a breath test in violation of N.J.S.A. 39:4-50.4a.

Defendant's boyfriend at the time, A.G.,3 testified that he and defendant had spent the night before the incident drinking, before going to sleep at A.G.'s parents' home. When they awoke, A.G. stated defendant began to drink beer and vodka, and he became "upset" with her because "she was disrespecting my parents' house." A.G. told defendant he would drive her home in her car. He made arrangements with a friend to give him a ride back from defendant's house.

On the way to defendant's house, A.G. testified that he argued with defendant. He stopped at a convenience store and met his friend, who then followed them in his car as A.G. drove defendant's car toward her home. A.G. claimed defendant got "very nasty, very belligerent" and was "[b]elittling me, belittling my manhood." Defendant then struck A.G., who stated he pulled the car over, "jumped out[,] [j]umped in my buddy's car and I left." A.G. asserted he was about a block away from defendant's house when he pulled over. He stated he did not "plan" to leave the car on the lawn of the neighbor's yard, but "the car kind of slid a little further than I had planned on."

Defendant testified on her own behalf. She stated she had been drinking the day before the incident and started again immediately after waking up on January 30, 2011. Defendant claimed that, following an argument at A.G.'s parents' home, he decided to drive her home. After stopping at the convenience store, defendant stated that A.G. continued to drive her car. When he stopped at the neighbor's house, defendant testified "part of" the car "was on the lawn[.]" After A.G. left with his friend, defendant got out of the car and went to her neighbor's house.

Defendant stated she remembered telling Sergeant Paul, "I didn't crash. I just parked [the car] there" when he asked her what happened. However, at trial, she claimed she did not park the car on the neighbor's lawn and that A.G. had done so. Defendant could not explain why she "didn't . . . tell [the police] that [A.G.] had been driving the car[.]" She stated she also did not remember whether she gave "adequate samples" during the breath test.

The municipal court judge found that neither defendant nor A.G. were credible witnesses. Although the judge believed that defendant "operated that vehicle and . . . [was] intoxicated when [she] did so[,]" he concluded the State had not "proven that case beyond a reasonable doubt." Therefore, he found defendant not guilty of DWI.

However, the judge determined that probable cause existed to arrest defendant for DWI based upon her admission she was drinking prior to the incident, her appearance, and her behavior. Therefore, he concluded that the police appropriately determined to administer a breath test to defendant. The judge further found that defendant refused to submit to the breath test because she only provided an adequate breath volume for one of the four tests and then refused to attempt to complete any further tests. Therefore, he found defendant guilty of refusal to submit to a breath test.

At the Law Division trial de novo, Judge Alberto Rivas also found defendant guilty of refusal. In a thorough written opinion, Judge Rivas found that defendant was fully "aware of her obligations" to complete the breath test, but "did not cooperate with the taking of the breath sample[,] which constitutes a refusal under the law." The judge imposed the same sentence as the municipal court: a ten-year driver's license suspension, forty-eight hours in the Intoxicated Driver's Resource Center, and various fines, assessments, and surcharges. This appeal followed.

On appeal, defendant raises the following contentions

POINT I

THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY THE COMPETENT RECORD EVIDENCE.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT THE STATE PROVED BEYOND A REASONABLE DOUBT THAT DEFENDANT UNEQUIVOCALLY REFUSED TO SUBMIT TO A BREATHALYZER EXAMINATION.

POINT III

REQUESTING DEFENDANT'S SUBMISSION TO THE BREATHALYZER TEST DID NOT FURTHER THE LEGISLATIVE PURPOSE UNDERLYING THE REFUSAL STATUTE AS THE REFUSAL STATUTE SHOULD NOT BE USED AS A MEANS TO OBTAIN A CONVICTION WHEN THE STATE CANNOT PRODUCE EVIDENCE OF OPERATION.

Having reviewed defendant's arguments in light of the facts and the applicable law, we affirm.

On appeal from a Law Division decision following a de novo municipal court appeal, the issue is whether there is "sufficient credible evidence present in the record" to uphold the findings of the Law Division, not the municipal court. State v. Johnson, 42 N.J. 146, 162 (1964). However, as in the Law Division, we are not in as good a position as the municipal court judge to determine credibility and, therefore, we "give deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (citation omitted). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). When we are satisfied that the findings and conclusions of the Law Division are supported by sufficient credible evidence, our "task is complete and [we] should not disturb the result, even though [we] . . . might have reached a different conclusion" or if the result was "a close one." Johnson, supra, 42 N.J. at 162. Given our standard of review, we are satisfied that the record contains ample credible evidence from which Judge Rivas could have found defendant guilty of refusal to provide a breath test.

The refusal statute, N.J.S.A. 39:4-50.4a(a), provides

The municipal court shall determine by a preponderance of the evidence whether the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle on the public highways or quasi-public areas of this State while the person was under the influence of intoxicating liquor . . . ; whether the person was placed under arrest, if appropriate, and whether he [or she] refused to submit to the test upon request of the officer.

Although the statute sets forth a standard of preponderance of the evidence, "because a breathalyzer refusal case is properly a quasi-criminal matter, the constitutionally required burden of proof is the one applicable to criminal cases: proof beyond a reasonable doubt." State v. Cummings, 184 N.J. 84, 89 (2005). Thus, to secure a conviction under the refusal statute, the State must prove beyond a reasonable doubt that "'(1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test.'" State v. Badessa, 185 N.J. 303, 312 (2005) (quoting State v. Wright, 107 N.J. 488, 490 (1987)).

Refusal is "a separate and distinct offense from conviction of drunk driving." Wright, supra, 107 N.J. at 504. Accordingly, a conviction for refusal to take a breath test can be sustained where there is probable cause to believe defendant was driving while intoxicated despite a lack of proof beyond a reasonable doubt as to operation. Id. at 502-04.

While the State must prove guilt beyond a reasonable doubt, Cummings, supra, 184 N.J. at 89, probable cause to arrest is a lower threshold, i.e., "a well-grounded suspicion that a crime has been or is being committed" by the defendant. State v. Marshall, 199 N.J. 602, 610 (2009) (internal quotation marks and citation omitted). "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Ibid. (alterations in original) (internal quotation marks and citation omitted). Although it is difficult to define the concept with precision, probable cause requires "more than a mere suspicion of guilt," but less than is needed to convict at trial. State v. Basil, 202 N.J. 570, 585 (2010) (citations omitted).

Probable cause for driving under the influence will be found where an officer "had reasonable grounds to believe that the driver was operating a motor vehicle in violation" of the DWI statute. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (internal quotation marks and citation omitted). In assessing probable cause, a judge considers the totality of the circumstances. State v. Moore, 181 N.J. 40, 46 (2004). They are viewed "from the standpoint of an objectively reasonable officer." Basil, supra, 202 N.J. at 585 (internal quotation marks and citation omitted).

Judge Rivas' conclusion that probable cause existed for defendant's arrest for DWI was well supported by the record. When Sergeant Paul arrived at the scene, he found defendant's car on a neighbor's front lawn, approximately fifteen feet from the highway. When questioned, defendant told the sergeant she "crashed" and "parked" the vehicle. Defendant also admitted she had been drinking, and she smelled of alcohol. Defendant had bloodshot eyes, was not speaking clearly, and was very belligerent. Defendant did not claim that her boyfriend had been driving her car or had ever been present at the scene.

Under the totality of the circumstances, these facts established sufficient grounds for an objectively reasonable police officer to believe that defendant had operated a motor vehicle in violation of the DWI statute. See Basil, supra, 202 N.J. at 585. The mere fact that the judge ultimately found there was reasonable doubt as to defendant's guilt on the DWI charge, does not defeat a finding of probable cause when sufficient facts exist to establish a well-grounded suspicion that defendant drove her car while intoxicated. See Wright, supra, 107 N.J. at 502-04.

Defendant argues that the record does not support the judge's conclusion that she refused to complete the breath test. We disagree. It is well established that "anything short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes refusal to do so." State v. Widmaier, 157 N.J. 475, 488 (1999) (citations omitted). "[A] defendant's subjective intent is irrelevant in determining whether the defendant's responses to the officer constitute a refusal to take the test. . . . [A] motorist has no right to delay a breathalyzer test." Id. at 498. Two failures to provide an adequate breath sample have been found sufficient to constitute refusal despite a verbal agreement by the defendant to submit to a breath test. In re Kallen, 92 N.J. 14, 17-18 (1983).

Applying these principles here, we discern no basis for disturbing the judge's determination that defendant unequivocally refused to submit to the breath test following her arrest. Although defendant told Officer Senatore she would comply with the instructions he gave her for the breath test, she clearly failed to do so. Defendant did not attempt to complete the first test and, instead, just stood there until the time limit expired. Although she provided a sufficient breath volume on the second try, she did not do so on either the third or fourth tests. After that, defendant simply refused to undertake any further testing. Therefore, we reject defendant's contention on this point.

Finally, defendant argues that the police should not have required her to submit to a breath test because they already had ample evidence from her appearance and behavior at the scene to support a DWI conviction. Therefore, defendant asserts "[t]here was absolutely no rational basis for [Sergeant] Paul to request [her] to submit to a breathalyzer test as the evidence clearly proved her intoxicated state." This argument lacks merit.

Contrary to defendant's contention, there was nothing untoward about the officers' request that defendant submit to a breath test after she was arrested for DWI. A breathalyzer test provides police with "a method of reliably distinguishing those motorists who were drunk from motorists who displayed symptoms of drunken[n]ess that were actually attributable to other causes[,]" such as illness or injury sustained in an accident. Wright, supra, 107 N.J. at 498-99. Although defendant appeared to be intoxicated at the scene, it was plainly appropriate for the police to seek defendant's cooperation in undergoing a breath test to rule out the possibility that her condition was caused by an underlying condition, such as an injury sustained in the "crash," and to determine her level of intoxication.

Affirmed.

1 Although the October 2, 2013 order lists only the implied consent statute, N.J.S.A. 39:4-50.2, a refusal charge necessarily implicates both the implied consent statute, and the refusal statute, N.J.S.A. 39:4-50.4a, as they "not only cross-reference one another internally, but they also rely on each other substantively." State v. Marquez, 202 N.J. 485, 502 (2010).

2 Defendant lived about one block away from the scene of the incident.

3 We use initials to protect the privacy of the witness.