STATE OF NEW JERSEY v. NICOLE ALLAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5507-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICOLE ALLAN,

Defendant-Appellant.

_______________________________________

September 12, 2012

Submitted April 25, 2012 - Decided

Before Judges Cuff and St. John.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-061.

The O'Mara Law Firm, attorneys for appellant (Peter M. O'Mara, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nicole Allan appeals from her conviction for refusal to submit to a chemical breath test. After reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

On appeal, the record discloses the following facts relevant to defendant's violation of the refusal statute, and procedural history.

Defendant was charged in Sea Bright with driving while intoxicated, N.J.S.A.39:4-50 (DWI); refusal to submit a breath sample, N.J.S.A.39:4-50.2 (refusal); and reckless driving, N.J.S.A.39:4-96. Trial was held in the Sea Bright Municipal Court before Judge Thomas F.X. Foley. The State presented one witness, Patrolman Chris Fisler of the Sea Bright Police Department, and the defense offered no witnesses.

After defendant was arrested for DWI, Fisler brought defendant to police headquarters. During processing, defendant declined to sign the Miranda1 waiver card. Fisler read to defendant the New Jersey Motor Vehicle Commission Standard Statement for Operators of a Motor Vehicle, N.J.S.A. 39:4-50.2(e) (Standard Statement). Fisler testified that prior to reading the Standard Statement to defendant, "I make it a habit to tell people before I read it, I'm going to read you a form, it's all about the breathalyzer, at the end of it, it's a yes or no answer." Fisler stated that while he was reading the Standard Statement to defendant, "she was continually talking, not exactly paying attention and just rambling on and on." In response to the first question, defendant stated "whatever you want." On cross-examination, Fisler testified that in response to defendant's answer, "I'm sure I said to her that's not a yes or no answer." After reading the second question of the Standard Statement, defendant again responded, "whatever you want."2

Fisler then proceeded to set up the breathalyzer machine, "at which time she was bringing up the fact that she didn't feel comfortable with me by myself. Because she was a nurse and that she thought there should be a female party there." Fisler called in Officer Gowan, a female, at which time defendant "stated that she wanted to talk to her husband first. And she was not going to take the test until she talked to her husband." Fisler testified that defendant never said, yes, she would take the breathalyzer test. As a result, defendant was charged with a violation of the refusal statute.

Upon the State's motion, the municipal court judge dismissed the reckless driving charge. The municipal court judge found defendant not guilty of DWI, but guilty of the refusal, and stayed the imposition of sentence pending the outcome of defendant's appeal to the Law Division.

On appeal in the Law Division, defendant contended that the State did not prove beyond a reasonable doubt that she refused to submit to the test upon request of the officer. Following a de novo hearing in the Law Division, Judge Jamie S. Perri, in a comprehensive oral opinion, found defendant guilty of violating the refusal statute, but stayed the imposition of sentence pending the outcome of this appeal. As both judges noted in their respective opinions, the evidence supported the factual findings.

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

THE ALLEGATION THAT DEFENDANT VIOLATED N.J.S.A. 39:4-50.2 CANNOT BE SUBSTANTIATED BY THE EVIDENCE PRESENTED BELOW, THEREBY WARRANTING A FINDING OF NOT GUILTY.

Our standard of review is clearly understood. Municipal court decisions are first appealed to the Law Division. R. 3:23-1; State v. Golin, 363 N.J. Super. 474, 481 (App. Div. 2003); State v. Buchan, 119 N.J. Super. 297, 298 (App. Div. 1972). The Law Division reviews the record de novo and makes its own findings of fact. State v. Kotsev, 396 N.J. Super. 58, 60 (Law Div. 2005), aff'd, 396 N.J. Super. 389 (App. Div.), certif. denied, 193 N.J. 276 (2007). The Law Division defers to the municipal court's opportunity to see and hear witnesses, develop a feel of the case, and determine witness credibility. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 161 (1964); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

Our review of municipal court convictions is "exceedingly narrow." Locurto, supra, 157 N.J. at 470. The "standard of review of a de novo verdict after a municipal court trial is to 'determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering the proofs as a whole." State v. Ebert, 377 N.J. Super. 1, 8 (App. Div. 2005) (quoting Johnson, supra, 42 N.J. at 162). Deference is given to the municipal judge's credibility findings that are "often influenced by matters such as observations of the character and demeanor of witnesses and common human experience[s] that are not transmitted by the record." Locurto, supra, 157 N.J. at 474 (citations omitted).

Furthermore, absent an obvious and exceptional showing of error, we will not disturb the lower court findings when the municipal court and Law Division have entered concurrent judgments on purely factual issues. Ebert, supra, 377 N.J. Super. at 8 (citing Locurto, supra, 157 N.J. at 474). The trial court's factual findings are binding on appeal unless the court is "thoroughly satisfied" that the lower court's finding is clearly mistaken and so unwarranted that the interests of justice demand intervention and correction. Johnson, supra, 42 N.J. at 162 (citations omitted). In such a case, we "appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. Nonetheless, "a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Under New Jersey's Implied Consent Law, N.J.S.A. 39:4-50.2, "[a]ny 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[.]" Failure of a person to act in accordance with N.J.S.A. 39:4-50.2 can result in prosecution for refusing to submit to a breath test. State v. Widmaier, 157 N.J. 475, 488-89 (1999). The purpose of the statute "is to encourage motorists suspected of driving under the influence to submit to [breath] tests." Id. at 487 (citing State v. Wright, 107 N.J. 488, 499 (1987)). The statute also requires "that the taking of samples is made in accordance with the provisions of this act[.]" N.J.S.A. 39:4-50.2. Subparagraph (e) requires the police officer to "inform the person arrested of the consequences of refusing to submit to such test . . . [and a] standard statement, prepared by the chief administrator,3 shall be read by the police officer to the person under arrest." Ibid.

In a case charging a motorist with refusal, the municipal court must determine whether: (1) "'the arresting officer had probable cause to believe that the person had been driving or was in actual physical control of a motor vehicle . . . while . . . under the influence of intoxicating liquors'" or other controlled dangerous substances; (2) "'the person was placed under arrest'"; and (3) the person "'refused to submit to the test upon request of the officer[.]'" State v. Marquez, 202 N.J. 485, 502 (2010) (emphasis in original) (quoting N.J.S.A. 39:4-50.4(a)). The State must prove these elements beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 88 (2005). Only the third element is at issue here.

In Widmaier, supra, 157 N.J. at 484, after being arrested for driving while intoxicated, the defendant was asked to submit to a breath test. The defendant agreed, but asked for his attorney and did not take the breathalyzer test. Id. at 485. The defendant was subsequently charged with refusal. Ibid. In examining whether defendant's statements constituted refusal, the Court first pointed out that police need to administer tests within a reasonable time after arrest to obtain an accurate reading given the evanescent nature of the evidence. Id. at 487. In light of this consideration and the public policy of encouraging drivers to submit to tests, the Court held that "anything substantially short of an unconditional, unequivocal assent to an officer's request that the arrested motorist take the breathalyzer test constitutes a refusal to do so." Id. at 488, 497 (citations omitted). The Court further held that "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.

As to defendant's refusal to submit to the breathalyzer test, Fisler testified that he read the Standard Statement to defendant, as required by N.J.S.A. 39:4-50.2(e), as well as the follow-up paragraph following her initial refusal. Judge Perri found:

Here, the credible proofs showed that the defendant was advised of the need to provide a yes or no answer of the initial request to submit to a breathalyzer test. This was a reasonable approach by the officer, who was aware that a conditional or ambiguous answer would not be sufficient. The record is replete with examples of defendant's behavior throughout the course of the night, indicating that she was continually talking and rambling, raising her voice, first demanding that a matron be present and then demanding to speak to her husband, and being generally difficult. After being provided with the first set of instructions, defendant ignored the direction that she give a yes or no answer and instead told Patrolman Fisler in a raised voice "whatever you want." She was then read the second part of the form which unequivocally advised her that her prior response was unacceptable and if she did not unconditionally [agree] to provide breath samples she would be charged with a refusal. Despite this clear direction, defendant again responded in a raised voice "whatever you want."

The Law Division judge found defendant's response was "substantially short of an affirmative unequivocal assent," and as a result, "defendant has been proven guilty beyond a reasonable doubt."

Our review of the record convinces us that the Law Division judge was correct in finding there was sufficient credible evidence in the record to conclude that defendant's responses to the Standard Statement questions, her actions in requesting a matron, and asking to speak to her husband constituted her refusal to take a breathalyzer test. Accordingly, the totality of her actions evinced that defendant's responses were substantially short of an unconditional, unequivocal assent to the officer's request.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Fisler simultaneously typed defendant's answers to both questions on the form as "yelling whatever you want."

3 Effective August 24, 2009, the responsibility for the promulgation of standard statements regarding implied consent to chemical breath test statutes was transferred from the Chief Administrator of the Motor Vehicle Commission to the Attorney General. See 41 N.J.R. 2825(a) (Aug. 3, 2009); State v. Schmidt, 206 N.J. 71, 73 n.1 (2011).