STATE OF NEW JERSEY v. DONALD LESSER

NOT FOR PUBLICATION WITHOUT THE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.

DONALD LESSER,

Defendant-Appellant.

________________________________________________________________

June 29, 2015

Submitted March 16, 2015 Decided

Before Judge Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 13-75.

Law Offices of Peter W. Till, attorneys for appellant (Mr. Till, on the briefs).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony Talarico, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 31, 2012, defendant was arrested for driving while intoxicated (DWI), N.J.S.A. 39:4-50. It is undisputed that, after he was transported to police headquarters, defendant was read the Standard Statement authorized by N.J.S.A. 39:4-50.2(e).1 Defendant declined to submit to the breathalyzer test. The Standard Statement was read to him a second time. After defendant declined to submit samples of his breath again, he was charged with refusal to consent to provide a breath sample, N.J.S.A. 39:4-50.2.2

Defendant entered a guilty plea to the DWI charge and a conditional guilty plea to the refusal charge. The State dismissed a third motor vehicle charge. Defendant was sentenced in municipal court to a seven-month suspension of his driving privileges on the refusal charge, a concurrent three-month period of suspension on the DWI charge and appropriate fines and penalties. Defendant appealed and, following a trial de novo, the Law Division judge found defendant guilty on the refusal charge and imposed the same sentence as had been imposed in municipal court.

In this appeal from the refusal conviction, defendant presents this single argument

THIS COURT OUGHT PROPERLY REVERSE THE TRIAL COURT'S DE NOVO DECISION ENTERING CONVICTION AND SENTENCE AGAINST THE APPELLANT, AS THE NEW JERSEY ATTORNEY GENERAL'S STANDARD STATEMENT FOR MOTOR VEHICLE OPERATORS, CODIFIED AT N.J. STAT. ANN. 39:4-50.2(e) (REVISED EFFECTIVE JULY 1, 2012) OFFERS NO COGNIZABLE ASSISTANCE, CREATE CONFUSION AND OTHERWISE FAILS TO ADEQUATELY INFORM THE APPELLANT OF THE CONSEQUENCES OF REFUSING TO SUBMIT TO A BREATHALYZER TEST.

We are unpersuaded by this argument and affirm.

Defendant argues that the Standard Statement failed to adequately inform him of the consequences of refusing to submit to a breathalyzer test because it fails to specify that the penalty for refusal included a mandatory minimum seven-month license suspension.

The implied consent law, N.J.S.A. 39:4-50.2(a), sets the framework for this argument, as it establishes the following principle

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 . . . .

The Legislature also established the following requirement for providing notice to a suspected drunk driver

The police officer shall . . . inform the person arrested of the consequences of refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a]. A standard statement, prepared by the chief administrator, shall be read by the police officer to the person under arrest.

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

The focus of the appeal in State v. Schmidt, 206 N.J. 71 (2011), concerned "the requirements of" this subsection, i.e., "what and how much must be read to a defendant in the way of a Standard Statement before a refusal conviction will lie." Id. at 82. The Court stated the answer to "what" was provided by the statute itself, noting "the substance of the Standard Statement has been delegated by the Legislature to the Executive Branch, pointedly not to the Judicial Branch." Ibid. As to the second question, the Court stated, "the corollary question of how much must be disclosed seems self-evident: provided the Standard Statement clearly delineates the penalties for a refusal, the statutory mandates are satisfied." Id. at 82-83.

Here the Standard Statement, worded by the Attorney General pursuant to the delegation from the Legislature, was read to defendant. Although this satisfies the legislative intent expressed in N.J.S.A. 39:4-50.2(e), we nevertheless consider and reject defendant's argument that the Standard Statement failed to "clearly delineate[] the penalties for a refusal" because it did not include the mandatory minimum period of license suspension.

The Standard Statement provides the following regarding the penalty for refusal

5. If you refuse to provide samples of your breath, you will be issued a separate summons for the refusal. A court may find you guilty of both refusal and driving while intoxicated.

6. If a court finds you guilty of the refusal, you will be subject to various penalties, including license revocation of up to 20 years, a fine of up to $2000, installation of an ignition interlock, and referral to an Intoxicated Driver Resource Center. These penalties may be in addition to penalties imposed by the court for any other offense of which you are found guilty.

In State v. O'Driscoll, 215 N.J. 461, 467-68 (2013), the police read an outdated Standard Statement to the defendant following his DWI arrest. The newer version of the Standard Statement, which was not read to the defendant, differed from the version read to him "in three ways: the minimum period for revocation of one's license was seven months, not six; the minimum fine was $300, not $250; and the maximum fine was $2000, not $1000." Id. at 468. The defendant contended that his conviction must be reversed because he was not adequately informed of the consequences of his refusal. See id. at 470-71.

In determining whether this error was fatal to a conviction for refusal, the Court observed, "The language of the implied consent statute . . . does not require absolute precision. It directs that the [Standard Statement] be read." Id. at 476 (citing N.J.S.A. 39:4-50.2(e)). The Court explicitly refrained from expressing an opinion as to "whether the form is defective because it does not inform drivers of the mandatory minimum period of time their license will be suspended if they refuse to submit a breath sample." Id. at 479-80. However, the Court's analysis as to whether an erroneous statement of the minimum penalty barred a conviction is instructive here.

The Court noted the four elements of a refusal conviction

(1) the arresting officer had probable cause to believe that defendant had been driving or was in actual physical control of a motor vehicle while under the influence of alcohol or drugs; (2) defendant was arrested for driving while intoxicated; (3) the officer requested defendant to submit to a chemical breath test and informed defendant of the consequences of refusing to do so; and (4) defendant thereafter refused to submit to the test.

[Id. at 475 (quoting State v. Marquez, 202 N.J. 485, 503 (2010)).]

The Court considered whether the error regarding the penalties was "material in light of the statutory purpose to inform motorists and impel compliance" with the implied consent law and therefore fatal to a conviction on a refusal charge. Id. at 476. The Court stated that, when an officer "reads the wrong version of the standard statement or misreads the current form," the analysis should focus on "whether the State has informed the defendant of material facts." Id. at 477.

Under that approach, discrepancies that would not have influenced a reasonable driver's choice to submit to a breath test would not be considered material and would not require reversal of a conviction for refusal. On the other hand, substantive errors that do not adequately inform motorists of the consequences of refusal and would affect a reasonable person's decision-making would be problematic. To decide whether a deviation from the standard statement is material under that standard requires a case-by-case evaluation of the facts.

[Id. at 477-78 (emphasis added).]

Although the officer in O'Driscoll misstated the minimum period of license suspension and the minimum fine, he did advise the defendant that, if he refused to submit a sample of his breath, his license could be revoked for up to twenty years. Id. at 478-79. The Court concluded that the errors regarding the minimum period of license suspension and the fines were "inconsequential," id. at 479, and stated

The officer read the standard statement and informed defendant both that the breath test was mandatory and that serious consequences revocation of his license for a period from six months up to twenty years would result if he did not submit to the test. In otherwords, as the Legislature intended, the officerused the standard statement to inform defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply. It is difficult to see how the minor discrepancies in this case could have influenced that decision. Like the Appellate Division, we are "highly doubtful" that the errors reasonably could have affected defendant's choice. Because the errors were not material, we find that the State satisfied the elements of the refusal statute.

[Ibid. (emphasis added).]

Here, the Standard Statement alerted defendant to the fact that if he refused he would be "subject to various penalties, including license revocation of up to 20 years," which could be in addition to penalties imposed for other offenses. It cannot be denied that a license revocation of up to twenty years is a serious consequence "that should have impelled a reasonable person to comply." Ibid. Since defendant was advised he faced that possible penalty, it is highly doubtful that the omission of the mandatory minimum period of revocation "reasonably could have affected defendant's choice." We conclude that, even if we ignored the statutory directive that the reading of the Standard Statement satisfied N.J.S.A. 39:4-50.2(e), the omission of the mandatory minimum period of license revocation is not material.

Affirmed.

1 N.J. Attorney General's Standard Statement for Motor Vehicle Operators (N.J.S.A. 39:4-50.4(e)) (revised & eff. July 1, 2012), available at http://www.njsp.org/divorg/invest/pdf/adtu/070912_dwi_standard statement.pdf (Standard Statement).

2 The correct citation is N.J.S.A. 39:4-50.4(a).