STATE OF NEW JERSEY v. JACQUELYN BENAVIDES

NOT FOR PUBLICATION WITHOUT THE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.

JACQUELYN BENAVIDES,1

Defendant-Appellant.

__________________________

November 24, 2014

Argued November 10, 2014 Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. MA-12-073.

John Menzel argued the cause for appellant.

Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).

PER CURIAM

Following a trial de novo in the Law Division, on November 13, 2013, defendant Jacquelyn Benavides was convicted of refusal to submit to a breath test, N.J.S.A. 39:4-50.4(a).2 The court sentenced defendant to a seven-month driver's license suspension and to participate in the Intoxicated Driver Resource Center (IDRC) program for a period of twelve hours and install an ignition interlock device (the interlock device) in the motor vehicle she principally operates for six months after the expiration of her driver's license suspension. The court also imposed the appropriate fines, costs and surcharges.3

On appeal, defendant contends that because the Standard Statement for Operators of a Motor Vehicle (the Standard Statement) failed to adequately inform her of the interlock device consequences of refusal to submit to a breath test, this court should acquit her of the charge. We disagree.

We limit our review of the facts to the discrete issue raised on appeal. On May 6, 2012, Police Officer Ronald Sofield of the Borough of Brielle Police Department arrested defendant for driving while intoxicated, and transported her to police headquarters in order to administer the Alcotest.

Consistent with the implied consent and refusal laws, N.J.S.A. 39:4-50.2 and -50.4(a), Officer Sofield read to defendant the instructions contained in the then-applicable Standard Statement, and asked defendant to submit samples of her breath. The Standard Statement included the following instructions

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 [IDRC], 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 Standard Statement did not include an instruction about the installation of an interlock device.4 Defendant refused to submit to a breath test, answering "No" on the Standard Statement. Based on these facts, defendant was convicted of refusal to submit a breath test. This appeal followed.

We find no merit in defendant's contention that we should overturn her conviction because the Standard Statement failed to adequately inform her of the interlock device consequences of refusal to submit to a breath test. There is no question that Officer Sofield read the correct then-applicable Standard Statement to defendant, which adequately informed her that she must submit a breath sample or face serious consequences for refusal. Defendant refused despite knowing that her license would be revoked for a period of no less than seven months and no more than twenty years and she faced a fine of no less than $300 and no more than $2000, the possible imposition of a consecutive license suspension or revocation if convicted of related offenses, and mandatory participation in the IDRC program. Facing these severe penalties, she still refused to submit a breath sample. It is highly doubtful that an interlock device instruction would have changed her mind. Notably, she never testified she would not have refused to submit to a breath test had she known about either the interlock device penalty or any other consequence or penalty related to refusal to submit to a breath test.

Furthermore, the installation of an interlock device does not carry the same impact as a license suspension. Defendant can still drive with an interlock device installed in her car; she just cannot drive while intoxicated. Thus, we conclude that the absence of an interlock device instruction on the Standard Statement read to defendant was inconsequential. See State v. O'Driscoll, 215 N.J. 461, 479 (2013) (finding that a police officer's reading of an outdated Standard Statement was inconsequential because it "inform[ed] defendant of the consequences of refusal in a manner that should have impelled a reasonable person to comply[]").

Defendant's conviction is affirmed, the stay is vacated, and the matter is remanded to the Law Division for implementation of that part of defendant's sentence requiring her to participate in the IDRC program and install the interlock device. The sentence shall be imposed within ten (10) days of the date of this opinion.

1Also referenced as Jacquelin Benevides and Jacqueline Benevides.

2 Defendant was also convicted of careless driving, N.J.S.A. 39:4-97, as amended from reckless driving, N.J.S.A. 39:4-96. She does not appeal that conviction.

3 The court stayed that part of defendant's sentence requiring her to participate in the IDRC program and install the interlock device pending appeal.

4 N.J.S.A. 39:4-50.17, which requires the installation of an interlock device for a refusal conviction, became effective January 1, 2001 for convictions committed on or after September 30, 2000. The Attorney General amended the Standard Statement, effective July 1, 2012, to include an instruction about the installation of an interlock device. That effective date for the revised Standard Statement was nearly two months after defendant's May 6, 2012 motor vehicle stop.