STATE OF NEW JERSEY v. NANCY GANJOIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0261-06T30261-06T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NANCY GANJOIN,

Defendant-Appellant.

_________________________________________________

 

Argued August 28, 2007 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Appeal No. 7-2006.

Robert Bradley Blackman argued the cause for

appellant.

Simon Louis Rosenbach, Assistant Prosecutor,

argued the cause for respondent (Bruce J.

Kaplan, Middlesex County Prosecutor,

attorney; Mr. Rosenbach, of counsel and

on the brief).

PER CURIAM

Defendant, Nancy Ganjoin, appeals from the affirmance by a judge of the Law Division, following trial de novo on the municipal court record, of her conviction for refusal to undergo a breathalyzer test, in violation of N.J.S.A. 39:4-50.4a. On appeal, she presents the following arguments:

Point I

Ganjoin did not refuse to provide a breath sample.

Point II

If Ganjoin was not providing a proper sample, the police officer should have read her the additional implied-consent standard statement required by N.J.S.A. 39:4-50.2.

Having reviewed the record presented, as well as the legal arguments of counsel for the parties, we affirm the conviction, but remand for a correction of the fines imposed in the sentence.

N.J.S.A. 39:4-50.2(e) requires that police officers read to all defendants arrested for driving while intoxicated (DWI) a standard statement, prepared by the Director of the Division of Motor Vehicles, before seeking to administer a breathalyzer test. See also State v. Widmaier, 157 N.J. 475, 489 (1999). This "New Jersey Motor Vehicle Commission Standard Statement for Operators of Motor Vehicles" informs the arrestee of the nature of the charge; the statutory requirement that the arrestee submit to an analysis of blood alcohol content by means of a breathalyzer test; the absence of any right to refuse the test, to delay it, or to require the presence of counsel or a physician; the right to independent sampling; and the penalties for refusal. The paragraphs of the statement pertinent to refusal provide:

6. If you refuse to provide samples of your breath you will be issued a separate summons for this refusal.

7. Any response from you that is ambiguous or conditional, in any respect, to your giving consent to the taking of breath samples will be treated as a refusal to submit to breath testing.

8. According to law, if a court of law finds you guilty of refusing to submit to chemical tests of your breath, then your license to operate a motor vehicle will be revoked, by the court, for a period of no less than seven months, but no more than 20 years. The Court will also fine you a sum of no less than $300, and no more than $2,000 for your refusal conviction.

9. Any license suspension or revocation for a refusal conviction may be independent of any license suspension or revocation imposed for any related offense.

10. If you are convicted of refusing to submit to chemical tests of your breath, you will be referred, by the Court, to an Intoxicated Driver Resource Center, and you will be required to satisfy the requirements of that Center in the same manner as if you had been convicted of a violation of N.J.S.A. 39:4-50, or you will be subject to penalties for your failure to do so.

The Court has recognized that, by requiring that the statement be read, "the Legislature has provided a procedural safeguard to help ensure that defendants understand the mandatory nature of the breathalyzer test, their limited rights to counsel for purposes of the test, and the need for unequivocal, affirmative consent." Widmaier, supra, 157 N.J. at 489. Anything short of such a response, the Court has found, "would undermine law enforcement's ability to remove intoxicated drivers from the roadways." Id. at 497; see also State v. Spell, 395 N.J. Super. 337, 344 (App. Div. 2007).

The statutorily required statement has an additional component, prefaced by the following instruction:

IF THE PERSON: REMAINS SILENT; OR STATES, OR OTHERWISE INDICATES, THAT HE/SHE REFUSES TO ANSWER ON THE GROUNDS THAT HE/SHE HAS A RIGHT TO REMAIN SILENT, OR WISHES TO CONSULT AN ATTORNEY, PHYSICIAN, OR ANY OTHER PERSON; OR IF THE RESPONSE IS AMBIGUOUS OR CONDITIONAL, IN ANY RESPECT WHATSOEVER, THEN THE POLICE OFFICER SHALL READ THE FOLLOWING ADDITIONAL STATEMENT:

That statement, which reflects the general substance of the preceding instructions and warnings, provides:

I previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney, do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood. Your response, silence, or lack of response is unacceptable. If you do not agree, unconditionally, to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.

Once again, I ask you, will you submit to giving samples of your breath?

Although it is clear that the lengthy instructions and warnings contained in the top half of the statement must be given whenever a breathalyzer test is sought to be administered, the circumstances requiring the use of the second statement, until very recently, have been less clearly defined. See Spell, supra, 395 N.J. Super. at 348.

The trial testimony of the arresting officer in the present case, Patrolman Joseph Licciardi, reflects that, on December 5, 2004, at approximately 1:00 a.m., Licciardi arrested Ganjoin, charging her with failure to wear a seatbelt, failure to yield, speeding, DWI, and resisting arrest. After transporting her to the police station, Licciardi prepared to administer a breathalyzer test, prefaced by a reading of the statutorily-required statement of instructions and warnings. Ganjoin agreed to administration of the breathalyzer test, which took place at 1:47 a.m. and resulted in a blood alcohol reading of .12 percent. Licciardi then prepared to perform a second, confirmatory, test. However, he testified that, rather than blowing into the mouthpiece and tube connected to the machine, Ganjoin sucked. He testified:

I explained to her how to blow into the breathalyzer, into the tube. And what happened was, in this particular case, she took the, I held the hose. She put the mouthpiece to her lips and she started sucking on it and she wasn't, there was no air going into the chamber.

Licciardi did not then read the second statement to Ganjoin, testifying that he did not think it applicable when an arrestee, who had acceded to the test, was simply failing to provide "a proper sample."

However, Licciardi stated that he explained to Ganjoin on three or four occasions "you have to blow, you have to give me a breath sample or you're going to get a refusal." Upon Ganjoin's failure on each occasion to comply with the renewed instructions, Licciardi stopped the testing and issued a refusal citation. The time of the initiation of the second test was listed as 1:56 a.m., less than ten minutes after the first.

Ganjoin's testimony in large measure corroborated that of Licciardi on the warnings issue. She admitted that the statement instructing her on her rights and warning of the penalties for refusal to submit to a breathalyzer test had been administered to her initially, and that she had consented to the test, which she completed successfully. Although Ganjoin contested Licciardi's description of her subsequent conduct, denied sucking, and stated that she was blowing as best she could, Ganjoin admitted that Licciardi had warned her that a refusal would issue if she did not blow harder. She testified:

He told me I wasn't blowing hard enough. He was yelling at me. You're not blowing hard. I'm giving you a refusal. So I blew and blew and blew and he wasn't satisfied. He said that he was going to give me a refusal if I didn't blow harder.

Ganjoin blamed the poor results on her pre-existing asthma and on the fact that she was "drained of [her] energy" as the result of crying and aggravation. Ganjoin indicated further that she was aware of the possibility that she would be cited for a refusal, but did not think it would occur, because she thought she "blew good enough."

Ganjoin further specified the nature and extent of her understanding of the instructions and warnings given to her by Licciardi in the following cross-examination:

Q . . . When the officer warned you of the consequences of failure to take the [breathalyzer] test, before you took the first one, he read you all that statement, Correct? He read you that paper that said you have a right

A Yes.

Q You don't have a right [to] refuse to take the test but if you do, you'll be charged with refusal to take a drunk driving test, correct? Yes?

A Yes.

Q And when he read it to you, it talks about revocation of your license or a fine or things like that, right?

A Yes.

Q Okay. So you knew that if you refused, flat out refused to take that test, that you would be confronted with that kind of charge, refusal to take a test, yes?

A Yeah, but I didn't think it was going to happen [to] me. I would never refuse to take the test. I didn't refuse to take the test.

Q But you knew it, just say yes.

A Yes.

Q Okay. And then after the second test, without getting into whether or not you blew correctly or not, the officer warned you if you don't give me a proper test, you're going to be charged with a refusal. So you knew that that could happen, correct?

A Yeah, he told me that, yes.

Q Okay. More than once, right? Because he didn't think you were blowing correctly, right?

A Right, he said it a couple of times.

Following the conclusion of testimony and the submission of written summations, the municipal court judge dismissed the DWI charge, finding the evidence insufficient to convict. He found Ganjoin guilty only of the speeding offense and of refusal to submit to a breathalyzer test. The judge stated with respect to the latter:

I do find that the officer was extremely patient with Ms. Ganjoin with taking the second reading. One of the reasons why there was not an accurate breathalyzer that I could rely on for a per se reading was the fact that no second test was taken because Ms. Ganjoin failed to blow into the machine properly.

I believe that the officer warned her and gave her instructions and that she did not comply with the instructions. . . . And when you analyze the facts of how she didn't blow correctly into the machine, we have a scenario where she thwarted the operation of the machine. So accordingly, I'm going to find that she did, in fact, refuse and I'm going to find her guilty of refusal, 39:4-50.2.

On appeal, and following trial de novo in the Law Division on the municipal court record, the Law Division judge found the testimony of Officer Licciardi to have been credible. The judge additionally found that, by reading the statutory instructions and warnings to Ganjoin initially and giving her repeated verbal warnings that she would be cited for refusal at the time of her noncompliance with the second test, Licciardi had substantially met the statutory requirement that a defendant be given notice that she was going to be charged with a refusal.

At the initial trial, an expert for Ganjoin had testified that Licciardi had not sufficiently investigated whether the breathalyzer was operable at the time of the second test, and thus that Ganjoin could not be convicted of a refusal. The judge rejected this position, stating:

In this case for me to find that the machine was broken I would have to find all [Ganjoin's] statements about her physical condition not to have come into play. I do find she was aggravated; she was crying; maybe she had asthma; maybe she didn't feel like crying; maybe she was offended with everything that was going on. I think just as the officer said she started sucking on that tube as opposed to blowing on it. She was capable of blowing on it because she had done so moments before in test number one.

I find it was a real refusal and I don't find [Licciardi's] failing to read this text word for word defeats the cause of action.

Because Ganjoin had previously been convicted of a DWI offense, the judge imposed a two-year license suspension, as well as a fine of $650. However, as the State has noted, that fine should have been reduced by $150, because that amount was imposed by the municipal court judge as the result of Ganjoin's conviction for speeding, a conviction that was not appealed. The fine of $500 for her refusal could not be increased upon appeal, State v. Sanders, 107 N.J. 609, 618-19 (1987), and the matter must be remanded for correction of this inadvertent error. A stay of the fines and penalties was denied.

On appeal, Ganjoin first challenges the court's conclusion that the State had proven beyond a reasonable doubt, as required by State v. Cummings, 184 N.J. 84, 95 (2005), that she refused to provide a sample for breathalyzer analysis. In support of her position, Ganjoin argues that she gave her unqualified consent to the first test, which was successfully completed, and that Licciardi never eliminated the possibility that Ganjoin's inability to give a second sample was unintentional by ensuring, as Ganjoin's expert suggested he should have, that the machine was set to "take," checking for a clog in the pipe leading to the machine, and examining the mouthpiece for defects. Additionally, Licciardi had never assessed Ganjoin's claimed impairment from asthma and its effect on the test result. Thus, she claims, a reasonable doubt as to whether a refusal had in fact occurred precluded conviction.

We reject this argument. The municipal court judge considering this matter found the testimony of Licciardi that Ganjoin had sucked, not blown, into the breathalyzer to have been credible. The Law Division judge, having given appropriate deference to the factual findings that had previously been made in the matter, State v. Locurto, 157 N.J. 463, 474 (1999), agreed. We find no basis for altering their concurrent findings of fact and credibility determinations. Ibid. The conclusion that Ganjoin sought to avoid a DWI conviction by failing to properly complete her second breathalyzer test is supported by the testimony of arresting officer Licciardi, and corroborated by Ganjoin's failure to flatly deny knowledge of the unfavorable first test result and her own admission that she sought to utilize a PBA card to avoid arrest and that, while on the way to the police station, she repeated "five, six or seven times" that she was "going to get out of this," and also that she "knew some people."

Our conclusion is not affected by the testimony of Ganjoin's expert challenging statements that the breathalyzer was operable at the time of the second test. An arrestee's physical actions of exhaling, as required to blow into the breathalyzer machine, or inhaling, as Ganjoin is claimed to have done, are a precursor to the testing process and can be independently observed to have taken place, regardless of whether the machine functioned properly or not.

Ganjoin also argues that Licciardi "should have informed her of the penalties for failing to comply when she did not give a second sample" because her response to the second test constituted, at most, an "ambiguous refusal." See State v. Geller, 348 N.J. Super. 359 (Law Div. 2001) (finding refusal to have occurred when the defendant unequivocally consented to take the breathalyzer test, but on five occasions, failed to make a tight seal with his lips on the machine's mouthpiece, precluding the collection of an adequate sample to permit an accurate reading of his blood alcohol content). Licciardi's failure to read the literal language of the second portion of the statutory statement, Ganjoin contends, requires reversal of her refusal conviction. We reject this argument, as well.

As our preceding summary of the testimony of Licciardi discloses, the first breathalyzer test was properly preceded by a reading of the appropriate statutory statement, which instructed Ganjoin of her duty to unequivocally assent to the test, informed her that failure to do so would result in a refusal citation, and informed her of the penalties that would be imposed if she were found guilty of that offense. Less than ten minutes later, when Ganjoin did not comply with Licciardi's instruction, she was repeatedly told that she would be cited for refusal. In her own testimony, Ganjoin confirmed her knowledge of her obligation to comply with the testing procedure, of the fact that she would be charged with refusal if she failed to participate properly in the test protocol, and of the penalties attendant upon a conviction for refusal. Ganjoin also confirmed that, because Licciardi did not think she was blowing as instructed, she was told "a couple of times" that she would be charged with refusal.

In these circumstances, we are satisfied that the conviction for refusal was proper, despite Licciardi's technical noncompliance with the statutory directive that, upon receipt of an ambiguous response to a request to submit to a breathalyzer test, the officer "shall" read the second half of the required directive. As we have noted, the Court has found the directive to be a "procedural safeguard" designed to help ensure that arrestees understand the mandatory nature of the breathalyzer test, the limitation on their right to refuse to undergo it, and the need for full compliance. Widmaier, supra, 157 N.J. at 489. In this case, Ganjoin has conceded that she was aware of these facts, as well as the potential for a refusal citation and the penalties associated with conviction. Although it would have been preferable for Licciardi to have read the text of the statement, its substance was adequately conveyed.

In other contexts, the Court has recognized the doctrine of substantial compliance as a means to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose. See, e.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 352 (2001); Zamel v. Port of N.Y. Auth., 36 N.J. 1, 5-6 (1970). What is required for its application, in relevant part, is evidence that the defending party has not been prejudiced by the technically defective action, that steps toward compliance took place, that general compliance with the statutory mandate occurred, and that noncompliance with the strict statutory mandate was reasonably explained. Galik, supra, 167 N.J. at 353. These requirements all have been met by the present record.

Although the doctrine has not been employed in New Jersey in the present quasi-criminal context, the courts of other states have recognized its applicability in related contexts. See Hegler v. State, 691 S.W.2d 129, 130 (Ark. 1985) (adopting a theory of substantial compliance in finding information supplied to a defendant, arrested for DWI, regarding his right to independently obtain confirmatory testing of his blood alcohol level to have substantially complied with statutory mandates). Similarly, see State v. Jones, 964 P.2d 117, 122 (N.M. Ct. App. 1998); cf. State v. Richardson, 499 P.2d 1264, 1266-67 (Wash. 1972). See also State v. Tubbs, 690 N.W.2d 911, 913-14 (Iowa 2005) (holding that police substantially complied with statute allowing contact with attorney or family member when it made offer, but excepted defendant's wife because of the existence of a prior restraining order). See generally, 1 Richard E. Erwin, Defense of Drunk Driving Cases: Criminal, Civil, 4.08, 4.04 (2007).

Moreover, we have not been offered any principled basis for our rejection of the doctrine in the limited circumstances presented here, in which the substance of a warning has been conveyed and the defendant has manifested a full understanding of her obligations and of the consequences of noncompliance. Accordingly, finding that our rejection of evidence of substantial compliance in this particular case would "undermine law enforcement's ability to remove intoxicated drivers from the roadways," Widmaier, 157 N.J. at 497, and that literal compliance with the statute's mandates is unnecessary to fulfill its objectives, we affirm the determination of the Law Division that substantial compliance with statutory directives was demonstrated in this case and that such compliance is sufficient to meet statutory requirements. We do not, however, intend that our acceptance of the substantial compliance doctrine in this case should constitute a license for its further application in other factual circumstances. We regard the prophylactic language set forth in Spell, supra, 395 N.J. Super. at 348, to be sound in principle, and we adhere to it.

 
The conviction is affirmed; the matter is remanded for resentencing in accordance with this opinion.

By our order dated September 11, 2007, the remedy imposed in Spell that, "effective on October 1, 2007, officers must read the additional paragraph of the form whenever the defendant refuses to immediately take the breathalyzer exam upon request was stayed pending a determination of the court's power to impose that remedy.

(continued)

(continued)

17

A-0261-06T3

October 5, 2007