STATE OF NEW JERSEY v. SUZY YENGO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4354-04T54354-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SUZY YENGO,

Defendant-Appellant.

________________________________________________

 

Argued January 25, 2006 - Decided February 17, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Union County, Mun.

App. Docket No. 5722.

Suzy Yengo, appellant, argued the cause pro se.

Steven J. Kaflowitz, Assistant Union County Prosecutor, argued the cause for respondent

(Theodore J. Romankow, Union County Prosecutor,

attorney; Mr. Kaflowitz, of counsel;

Mr. Kaflowitz and Amy F. Newcombe, on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction on trial de novo for failure to submit to a breathalyzer examination in violation of N.J.S.A. 39:4-50.2. She was also found guilty in municipal court of speeding but acquitted of driving while intoxicated. On this appeal she asserts the following arguments:

POINT I UNDER WIDMAIER, THIS COURT SHOULD REVERSE

DEFENDANT'S CONVICTION BECAUSE THE EVIDENCE

ESTABLISHED THAT THE TROOPER DID NOT READ THE

STANDARD BREATHALYZER STATEMENT ACCORDING TO

THE RULE OF STRICT CONSTRUCTION

POINT II UNDER WIDMAIER, THIS COURT SHOULD REVERSE THE

FEDERAL CONVICTION BECAUSE THE EVIDENCE PROVES

DEFENDANT RESPONDED WITH AN AFFIRMATIVE 'YES'

TO THE STANDARD STATEMENT

POINT III THE NEW JERSEY SUPREME COURT NOW REQUIRES PROOF

OF A REFUSAL BEYOND A REASONABLE DOUBT WHICH

CANNOT BE MET UNDER THE FACTS

POINT IV THE MUNICIPAL COURT ERRED IN NOT GRANTING THE

DEFENDANT'S MOTION TO SUPPRESS THE ARREST

BECAUSE THE TROOPER HAD NO REASONABLE SUSPICION

OR PROBABLE CAUSE TO ORDER DEFENDANT TO EXIT

HER VEHICLE

POINT V THE TROOPER LACKED PROBABLE CAUSE TO ARREST

THE DEFENDANT

POINT VI UNDER THE PRINCIPLES OF EQUITABLE ESTOPPEL AND

FAIR DEALING THE TROOPER IS ESTOPPED FROM

CHARGING DEFENDANT WITH REFUSAL

POINT VII THIS COURT SHOULD REVERSE THE CONVICTION

BECAUSE THE EVIDENCE SUPPORTS THE CONFUSION

DOCTRINE

We reverse and remand for a new adjudication.

In finding defendant guilty of the refusal charge, the municipal court judge stated he was "satisfied" that exhibit S-6, the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle - N.J.S.A. 39:4-50.2(e) form, was read to defendant "in its entirety," and was "satisfied that under the cases and the testimony before me, the inaction of the defendant constituted a refusal to take the test for a violation of 39:4-50.2." Presumably, the cases included those which placed the State's burden to prove guilty by a preponderance of the evidence. See State v. Todaro, 242 N.J. Super. 177 (App. Div. 1990); State v. Fahrer, 212 N.J. Super. 571, 576-78 (App. Div. 1986). The burden was not otherwise addressed.

On trial de novo, the Law Division agreed that "the officer had more than probable suspicion that defendant was driving while intoxicated," to require her "to leave [her] car for field sobriety tests" and to arrest her for DWI, and that "defendant's conduct constituted a refusal." According to the judge:

With regard to refusal, New Jersey law makes clear that, "Anything substantially short of an unconditional, unequivocal as[s]ent 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 (1999). A breathalyzer is not an occasion for "debate, maneuver or negotiation, but rather for a simple yes or no to the officer's request." [State v. Pandoli, 109 N.J. Super. 1, 4 (App. Div. 1970)]. Any other result would undermine law enforcement's ability to remove intoxicated drivers from the roadways. [Widmaier, supra, 157 N.J. at 497].

Additionally, a defendant's subjective intent is irrelevant in determining whether a defendant's response to the [o]fficer constitutes a refusal to take the test. A suspect's conditional ambiguous response to a police officer's final demand to submit to the breathalyzer constitutes a violation of the statute, whether or not the defendant intended to refuse to take the test. Id[.] 498.

In the present case the [o]fficer testified that he read the proper statements to the defendant and her responses were clearly, substantially short of an unequivocal, unconditional assent. Thus, this Court holds that she violated the refusal statute.

Defendant, in a supplemental brief, argues . . . that her response, "Let me use the bathroom first," implies a yes preceded the response, period. This argument, however, is not persuasive, even assuming arguendo there was a yes preceding her response this would still be a conditional or ambiguous response and a violation of the refusal statute.

Neither the municipal court nor Law Division expressly referred to the burden of proof required or sustained by the State. After the trial de novo, the Supreme Court held in State v. Cummings, 184 N.J. 84, 98-99 (2005), that the appropriate burden of proof for breathalyzer refusal cases is beyond a reasonable doubt and the reasonable doubt standard applies in all refusal cases then pending, giving its decision "pipeline retroactivity." It appears that defendant was found guilty under a lesser standard, and that the matter must be reconsidered. This is particularly true because in making his initial decision the municipal court judge found defendant "credible [in] her testimony about her having to go to the bathroom," when she stated in response to the additional paragraph on the M.V.C. form, S-6, regarding the lack of right to consult counsel in connection with the taking of breath samples.

We find it inappropriate to determine the other issues raised by defendant unless she is found guilty under the appropriate burden. In that connection, the trial court must specifically determine whether the officer read the entire statement to her as part of its evaluation under the new burden.

The matter is remanded to the Law Division which may elect to remand the matter to the municipal court if it decides it is appropriate to do so in making its findings on trial de novo. If the defendant is found guilty on the trial de novo, she may again appeal to us, with no additional filing fee, and raise the additional issues she raised on this appeal relating to the probable cause to stop and direct her to exit the car and to arrest defendant.

 
Reversed and remanded for further proceedings consistent with this opinion.

The prosecution should have been under N.J.S.A. 39:4-50.4a, but there was no prejudice to defendant by the miscitation. See State v. Cummings, 184 N.J. 84, 90 n.1 (2005).

On September 16, 2004, the municipal court found that defendant was "not guilty of driving while intoxicated," but "there was probable cause to effectuate an arrest" for the offense, and that she was guilty of speeding. The judge, however, did not initially rule on the refusal charge and asked the parties to brief "at what point does the [S]tate have a right to cease the offer to a defendant, the administration of a [b]reathalyzer test when the defendant clearly indicates the defendant wants to take the test after not directly responding to the [prior] request," and "at what point and time is it a drop dead definitive refusal under these facts?" On October 14, 2004, after considering the briefs, the judge found defendant guilty of refusal.

An issue arose as to whether the trooper read the paragraph advising that defendant had no right to an attorney with respect to the breathalyzer examination. The trooper testified that he read the additional paragraph to defendant after she indicated she wanted "to confer with my attorney."

There is no double jeopardy preclusion to this reconsideration. State in the Interest of J.R., 244 N.J. Super. 630, 635 (App. Div. 1990).

(continued)

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A-4354-04T5

February 17, 2006